Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 125-1996
September 17, 1996
INQUIRY RE: A decision of the Vancouver Police Department to withhold law
enforcement records from an applicant
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner (the Office) on August 12,
1996 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a request for review of a
decision of the Vancouver Police Department (the public body) to sever
information and withhold records in response to an applicant's request.
2. Documentation of the review process
On November 5, 1994 the applicant requested "all police reports, impact
statements in the matter of an indictment CA821614, Vancouver British
Columbia." The applicant was convicted in 1983 of multiple counts of rape,
attempted rape, and indecent assault (as those offences were known at that
time). The applicant is currently a resident of a federal correctional
facility for an indeterminate period as a dangerous offender under the
Criminal Code.
The Vancouver Police Department disclosed some records to the applicant on
January 17, 1995. It severed some information and withheld some records under
sections 15(1)(c) and 22(3)(b) of the Act.
On February 1, 1995 the applicant requested a review of the Vancouver Police
Department's decision. No additional disclosure of information or records
occurred then. This first review file was closed on May 16, 1995 when the
applicant instructed the Office to "do as you deem appropriate."
On March 13, 1996 the applicant made a second set of requests for records to
the Ministry of Attorney General. It transferred these requests to the
Vancouver Police Department on March 20, 1996 under section 11 of the Act. The
Vancouver Police Department responded on March 27, 1996 by issuing a new
decision that confirmed its first decision of January 17, 1995.
On April 17, 1996 the applicant requested a review of the Vancouver Police
Department's second decision.
3. Issues under review at the inquiry and the burden of proof
The issue to be reviewed by the Information and Privacy Commissioner is the
Vancouver Police Department's application of sections 15 and 22 to the
undisclosed and severed records.
The relevant sections are as follows:
15(1) The head of a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to
22(3) A disclosure of personal information is presumed to be an unreasonable
invasion of a third party's personal privacy if
Section 57 of the Act establishes the burden of proof on the parties in this
inquiry. Under section 57(1), where access to information in a record has been
refused, it is up to the public body to prove that the applicant has no right
of access to the record or part of the record. In this case, it is up to the
Vancouver Police Department to prove that the applicant has no right of access
to the records withheld under section 15 of the Act.
However, if the record or part of the record that the applicant has been
refused access to contains personal information of a third party, section 57(2)
requires the applicant to prove that disclosure of the information would not be
an unreasonable invasion of the third party's privacy. In this case, the
applicant must prove that the release of the personal information withheld
under section 22 of the Act would not be an unreasonable invasion of the
privacy of third parties.
4. The applicant's case
The Vancouver Police Department arrested the applicant in 1982 and
1983. He continues to seek records from the Vancouver Police Department in
connection with these events. He appears to claim that at the time of the
termination of his first request for review, he was not given appropriate
notice to exercise his rights. He is still seeking full disclosure of the
police records that he requested.
The applicant believes that the Vancouver Police Department and other
individuals continue to be part of a conspiracy with regard to documents and
records about him.
5. The Vancouver Police Department's case
I accepted in camera submissions from the Vancouver Police
Department in this inquiry with respect to both sections 15 and 22 of the Act.
I have used below, as I deemed it appropriate to do so, its specific arguments
on these sections from its open submissions.
6. Discussion
Most of the applicant's submission concerns matters surrounding his
original convictions, prosecution, and trial that are beyond my purview under
the Act. There are standard remedies in the courts that he is at liberty to
pursue. One thing that I can do is to act upon the applicant's request that I
review the records in dispute, as I have done below.
On a procedural point, the Vancouver Police Department invited me to accept a
record, as part of its submission, that reported on past mediation efforts by
my Office. I have recently discussed my Office's policy on this issue in
Order No. 121-1996, September 3, 1996, pp. 10, 11. In this particular case, I
accepted the submission. In general, I remain unwilling to review records of
mediation efforts.
Section 15(1)(c): The head of a public body may refuse to disclose
information to an applicant if the disclosure could reasonably be expected
to:
(c) harm the effectiveness of investigative techniques and procedures currently
used, or likely to be used, in law enforcement,
The Vancouver Police Department submits that disclosure of the records in
dispute "will seriously harm the effectiveness of police surveillance
techniques and procedures in future investigations. Such techniques and
procedures can only be successfully used if the surveillance subjects are
unaware of the techniques and procedures." (Submission of the Vancouver Police
Department on section 15(1)(c), paragraph 15) The Vancouver Police Department
detailed various additional reasons for the sensitivity of these techniques and
procedures in its in camera submission.
The Vancouver Police Department has refused to disclose only a small number of
pages under this section. I find that it was appropriate for it to do so.
Section 22(3)(b): A disclosure of personal information is presumed to be
an unreasonable invasion of a third party's personal privacy if...
(b) the personal information was compiled and is identifiable as
part of an investigation into a possible violation of law, except to the extent
that disclosure is necessary to prosecute the violation or to continue the
investigation
The Vancouver Police Department emphasizes that the applicant is seeking
records about his victims and witnesses. It characterizes his submission as to
why he wants access as "incoherent" and submits that he "has put forth no
evidence worthy of consideration" by me with respect to his burden of proof
under this section. (Submission of the Vancouver Police Department, paragraphs
4, 6) I agree with the Vancouver Police Department that the applicant has not
met his burden of proof in this regard. He is preoccupied with what he
perceives as invasion of his own rights and is clearly insensitive to the
rights of his victims and those who testified against him.
I have reviewed the detailed submission of the Vancouver Police Department as
to why its own decision not to disclose under this section should be upheld.
The submission included both direct evidence and supporting documents from
appropriate professionals. It is relevant in this regard that the applicant
was convicted of a number of sexual crimes and that he continues to be
incarcerated as a dangerous offender. It is self-evident that the records
contain sensitive information about his victims and witnesses; there is a risk
that release of this information to the applicant could traumatize and
revictimize these persons. In particular, I agree with the following statement
by Inspector David H. Jones of the Vancouver Police Department:
It was and is my belief and concern that the victims in these cases had
reacquired their privacy rights with the passage of time between the
Applicant's conviction in 1983 and the date of his request in 1994. It was and
is my belief that the victims who had the courage to testify against their
attacker should not at a later date be penalized by the Freedom of
Information and Protection of Privacy Act process. (Affidavit of
David H. Jones, paragraph 9)
I made a similar finding in Order No. 49-1995, July 7, 1995, pp. 6, 7. (See
also Order No. 58-1995, October 12, 1995, p. 6)
I intend to oversee the implementation of the Act in such a commonsense manner
that revictimization of victims of sexual offenders will not be possible by
release of their personal information to perpetrators.
I find that the records in dispute must be withheld under section 22(3)(b).
(See Order No. 81-1996, January 25, 1996 pp. 6, 8)
7.
Order
Under section 15 of the Act, I find that the Vancouver Police Department was
authorized to withhold certain records in dispute. Under
section 58(2)(b), I confirm the decision of the Vancouver Police
Department to sever information under section 15.
Under section 22(3)(b) of the Act, I find that disclosure of the personal
information in the records in dispute would be an unreasonable invasion of the
privacy of third parties. I find that the Vancouver Police Department is
required to refuse access to the information.
Under section 58(2)(c), I require the Vancouver Police Department to refuse
access to the information severed under section 22.
September 17, 1996
David H. Flaherty
Commissioner