July 28, 2000

Don E. Morrison
Police Complaint Commissioner
Office of the Police Complaint Commissioner
900-1111 Melville Street
Vancouver, B.C. V6E 3V6

Dear [Applicant] and Don Morrison:

Re: Request for Review between the [Applicant] and the Office of the Police Complaint Commissioner ("public body") - OIPC file 10766

1.0 BACKGROUND

The issue in this inquiry as stated in the Notice of Written Inquiry is whether, under s. 3(1)(c) of the Freedom of Information and Protection of Privacy Act ("Act"), records in the custody or under the control of the public body are outside the scope of the Act. In its initial submission, the public body raised s. 66.1 of the Police Act. The applicant responded to this issue in his reply submission. On July 25, 2000 I wrote to the parties and informed them that, based on my review of the parties' submissions, and particularly in light of section 66.1 of the Police Act, the threshold issue in this inquiry is whether I have jurisdiction to proceed. The public body did not use s. 66.1 of the Police Act in its response to the applicant's requests and this office did not identify it in the Notice of Written Inquiry. However, as the public body has raised the issue of my jurisdiction, and the applicant has responded, I must answer this issue before proceeding further in this inquiry. For the following reasons, I have decided that I do not have any jurisdiction to proceed with the inquiry.

In letters dated February 7 and 9, 2000 the applicant submitted requests to the public body for all records held by the public body concerning his complaint against the Vancouver Police Department and his complaint against the New Westminster Police Department. On February 11, 2000, the public body responded to the applicant's requests by saying that under s. 3(1)(c) of the Act "the OPCC is unable to provide access to the records".

2.0 PARTIES' ARGUMENTS

In its initial submission, the public body argued the Act "does not apply to a record which is created by or for, or which is in the custody or control of the Police Complaint Commissioner if that record relates to the exercise of the Police Compliant Commissioner's functions under the Act."

In partial support of this argument, the public body cited section 66.1 of the Police Act. In an affidavit attached to the public body's initial submission, William MacDonald, investigator with the public body, deposed that the applicant's two files in the custody of the public body "relate to complaints he has made under the Police Act relating to the conduct of police officers within two municipal police departments." In addition, he stated that the files "relate solely to the processing of [the applicant's] complaints under Part IX of the Police Act…[and that both complaint files] relate to conduct complaints under Part IX of the Police Act."

For his part, the applicant argued that "[n]o public body or Officer of the Legislature should use such legislation to withhold information that relates to criminal conduct affecting the applicant." The applicant stated that the public body had requested that he conduct interviews with witnesses. He therefore asserted that I should view his complaints as relating to criminal matters rather than conduct complaints.

3.0 DECISION

3.1 Exclusion of the Act By the Police Act - Section 66.1 of the Police Act reads as follows:

Except as provided by this Act, the Freedom of Information and Protection of Privacy Act does not apply to any record that

This section, in my view, applies to a record which:

If section 66.1 of the Police Act applies to a record, the Act does not apply to the record. I interpret this section as meaning that all sections of the Act do not apply, including the right of access to a record under the Act, the authority to conduct a review under s. 52 of the Act and the power to hold an inquiry under s. 56 of the Act.

Section 46 of the Police Act defines three types of complaints: internal discipline complaints, public trust complaints and service or policy complaints. This distinction is important, since section 52.1(1) of the Police Act requires the recipient of a complaint to characterize the type of complaint received and since this characterization must be reviewed by the police complaint commissioner.

The term "conduct complaint" is defined in s. 46 of the Police Act to mean an internal discipline complaint or a public trust complaint. Therefore, s. 66.1 of the Police Act does not apply to service or policy complaints as defined in the Police Act. In addition, it does not apply to records created before a conduct complaint has been made.

In this case, the affidavit evidence of the public body identifies the applicant's complaints as "relating to the conduct of police officers within two municipal police departments." In a further affidavit submitted in reply, William MacDonald deposed that the applicant alleged misconduct of police officers.

Further, the affidavit evidence is clear that the records in the files relate "solely to the processing" of these conduct complaints under Part IX of the Police Act." I note that the public body plays an active role in this under Division 3 of Part IX of the Police Act - titled "Processing of Complaints".

Were the requested records created on or after the conduct complaint was made, lodged or submitted? In his affidavit, William MacDonald deposed that "both files were opened upon receipt of the conduct complaint from [the applicant]". He also deposed that both complaint files "relate to conduct complaints under Part IX" of the Police Act. Based upon this evidence, it is reasonable to conclude that responsive records in the files were created on or after the receipt of the conduct complaint.

The applicant asked that I reclassify his complaints, since they allegedly relate to with criminal matters and not complaints under the Police Act. The evidence before me is clear that the complaints are conduct complaints under Part IX of the Police Act and I have, in any case, no authority to do what the applicant asks me to do.

I find that the three parts of s. 66.1 of the Police Act have been met. Since s. 66.1 of the Police Act applies to the records requested by the applicant, I find that I have no jurisdiction under the Act to proceed with the inquiry, including to make any order under s. 58 of the Act. Section 66.1 of the Police Act is a clear expression of the Legislature's decision that certain aspects of the Police Act complaint processes are not to be subject to the access rights otherwise afforded under the Act. Since the circumstances here fit within s. 66.1, I have no alternative but to find that s 61.1 prevents me from proceeding with respect to records created on or after the making, submitting, lodging or processing of the applicants conduct complaints.

In his reply submission, the applicant requested that I consider the application of s. 25(1)(a) or (b) of the Act to the records. As I have found I do not have the jurisdiction to proceed further, I am not able to consider the application of s. 25 of the Act to the records.

3.2 Exclusion Under the Act - There may be circumstances where a conduct complaint file in the custody of the public body may contain records, or copies of records, created before the conduct complaint was made, submitted or lodged. For example, a complaint file may contain copies of operational records created by a police department, in the ordinary course, before the complaint was made, submitted or lodged. Such records would not be excluded from the Act's operation by s. 66.1 of the Police Act. In its response dated February 11, 2000, the public body based its decision on s. 3(1)(c) of the Act. The applicant and the public body have made submissions on the application of this section to the records.

In this light, I must consider the application of s. 3(1)(c) of the Act in this case to any records which may be have been created before the conduct complaint, but are now in the custody of the public body.

In order to determine whether s. 3(1)(c) of the Act applies to records in the files in this matter and excludes them from the Act, I need further evidence and argument. Therefore I request the public body to provide me with the following:

I request the public body provide me with the above before August 18, 2000. The applicant will have the opportunity to respond; he will be given not less than 21 days from the date of dispatch to him from this Office of his copy of the public body's further material.

Sincerely,

Original signed by

David Loukidelis
Information and Privacy Commissioner
for British Columbia

In my letter to the parties dated July 28, 2000, I ruled that, because s. 66.1 of the Police Act applies to records requested by the applicant in his February 7 and 9, 2000 access to information requests to the public body under the Freedom of Information and Protection of Privacy Act ("Act"), I had no jurisdiction under the Act to proceed with the inquiry connected with those requests or to make any order under s. 58 of the Act.

In my July 28, 2000 letter, I noted that the public body had, in responding to the applicant's access requests on February 11, 2000, based its decision on s. 3(1)(c) of the Act. Because of the possibility that the public body's files relating to the applicant's Police Act complaints might contain copies of operational records created by a police department, in the ordinary course, before the applicant's complaints were made, submitted or lodged under the Police Act, I asked the public body to assist further with respect to application of s. 3(1)(c) of the Act to any such records. I requested that the public body provide me with the following:

The public body responded under cover of a letter dated August 15, 2000. That letter was accompanied by copies of two records and affidavits sworn by Lori Loseth and William MacDonald, both of whom are with the public body. By a letter dated August 23, 2000, the applicant responded to the public body's further submissions. This letter disposes of the remaining s. 3(1)(c) issue identified above.

2.0 DECISION

In her affidavit, sworn August 14, 2000, Lori Loseth deposed that, with only two exceptions, all records contained in public body's complaint file 0428 were received or created after August 17, 1999, the date on which the relevant conduct complaint was received. The two exceptions are copies of the "Emergency/Outpatient Record" from the … Hospital, dated April 25, 1999, and a copy of the "Continuation Report" from the New Westminster Police Department, dated April 25, 1999. These are the two records delivered to me by the public body. Ms. Loseth deposed that these two records were received by the public body from the New Westminster Police Department on September 24, 1999, "after the lodging of the conduct complaint". The public body's file 0428 was opened on August 17, 1999, upon receipt of a Form 1 Record of Complaint submitted by the applicant.

Similarly, Ms. Loseth deposed that all of the records contained in the public body's file RM98080 - which relates to a July 20, 1998 conduct complaint made by the applicant about a Vancouver Police Department member - were "received or created after the date the conduct complaint was made" by the applicant.

Ms. Loseth deposed that the two conduct complaint files just described relate to the processing of conduct complaints under Part IX of the Police Act. She also deposed that "there are no other records concerning" the applicant in the "care or custody of" the public body.

In his affidavit, sworn July 13, 2000, William MacDonald also deposed that the public body only has two files relating to the applicant, as described in Ms. Loseth's affidavit. Mr. MacDonald deposed that the "materials within both files relate solely to the processing of" the applicant's "complaints under Part IX of the Police Act", both of which relate to conduct complaints under that Part.

In its further written submissions in this matter, the public body argues that both of the records described above "fall under s. 3(1)(c) of the Freedom of Information and Protection of Privacy Act", which provides that the Act does not apply to:

Schedule 1 to the Act contains the following definition:

"officer of the Legislature" means the Auditor General, the Child, Youth and Family Advocate, the Commissioner appointed under the Members' Conflict of Interest Act, the police complaint commissioner appointed under Part 9 of the Police Act, the Information and Privacy Commissioner, the Chief Electoral Officer or the Ombudsman

Section 47 of the Police Act provides that the police complaint commissioner is "an officer of the Legislature".

The applicant's reply to the public body's further submission addressed issues connected with his complaints under the Police Act. His reply did not address the jurisdictional issue arising from s. 3(1)(c) of the Act.

There is no doubt the two records described above, in file 0428, are within the custody of the public body. It is equally clear that s. 3(1)(c) places those records beyond the Act's reach. It is plain, in my view, that the two records are in the custody of the public body solely for the purposes of its investigation and disposition of the conduct complaint made by the applicant against members of the New Westminster Police Department. I have no hesitation in finding that these records are records in the custody of the public body, as an officer of the Legislature, and that they relate to the exercise of that officer's functions under the Police Act, within the meaning of s. 3(1)(c) of the Act. This finding also extends to all records in files 0428 and RM98080, since those records relate to the exercise of the public body's complaint-handling functions under the Police Act.

I find that, by virtue of s. 3(1)(c) of the Act, I have no jurisdiction to proceed with the inquiry, or to make any order, under the Act in relation to those records. For clarity, this decision supplements my July 28, 2000 decision, in which I found that s. 66.1 of the Police Act leads to the same conclusion with respect to records created on or after the making, submitting, lodging or processing of the applicant's conduct complaints under Part IX of the Police Act. To summarize, I have no jurisdiction to proceed with the inquiry, or to make an order, under the Act with respect to the applicant's request for a review under the Act. This proceeding is complete.

Sincerely,

Original signed by