Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 58-1995
October 12, 1995
INQUIRY RE: A decision by the Victoria Police Department to sever
information and 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 an oral inquiry at the
Office of the Information and Privacy Commissioner (the Office) in Victoria on
August 30, 1995 under section 56 of the Freedom of Information and
Protection of Privacy Act (the Act). This inquiry arose out of a request
for review made by an applicant of a decision of the Victoria Police Department
(the police) to sever information and withhold records in response to the
applicant's request for records.
2. Documentation of the inquiry process
On March 13, 1995 the applicant requested copies of all police file
information, including personal notes, concerning the investigation of a murder
of a woman that took place in Victoria, British Columbia, in 1978-79. The
applicant was convicted of first degree murder in the Supreme Court of British
Columbia and was sentenced to life imprisonment with no possibility of parole
for 25 years. The British Columbia Court of Appeal upheld the conviction in
1980.
The police responded to the applicant on March 22, 1995 and extended the time
for response by thirty days. The police acted under section 10(1)(b) of the
Act, because of the large number of records that had to be searched.
On May 18, 1995 the police disclosed some of the records in the investigation
file to the applicant. The police severed some information and withheld some
records under sections 15, 16, 19, and 22 of the Act. On May 30, 1995 the
applicant requested a review of the police decision to sever information and
withhold records. In particular, the applicant wants information concerning
the investigative methods and techniques used by the police in the
investigation.
Mediation by the Office involved a complete review of all records in the
investigation file. There are approximately 1,500 individual records divided
into thirteen categories. The ninety-day mediation period commenced on June
12, 1995 and expired on September 11, 1995.
As a result of mediation, the applicant received seven additional newspaper
clippings that relate to media coverage of the murder and his conviction.
However, he was not satisfied with the result of mediation and, on August 9,
1995, he requested an inquiry by the Information and Privacy Commissioner.
Further mediation resulted in a narrowing of the categories of records to be
reviewed by the Commissioner.
On August 16, 1995 the Office gave notice to the applicant and the public body
of the oral inquiry to be held on August 30, 1995. Since the applicant is
a resident at a correctional facility elsewhere in Canada, he participated in
the oral inquiry by telephone. His Case Management Officer also listened to
the inquiry but did not participate directly.
3. Issues under review at the inquiry
This inquiry concerned the application of sections 15, 16, 19 and 22 of
the Act to records in the custody or under the control of the police. They
read in appropriate part as follows:
Disclosure harmful to law enforcement
15(1) The head of a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to
Disclosure harmful to intergovernmental relations or
negotiations
16(1) The head of a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to
(b) reveal information received in confidence from a government, council or
organization listed in paragraph (a) or their agencies, or ....
(3) Subsection (1) does not apply to information that is in a record that has
been in existence for 15 or more years unless the information is law
enforcement information.
Disclosure harmful to individual or public safety
19(1) The head of a public body may refuse to disclose to an applicant
information, including personal information about the applicant, if the
disclosure could reasonably be expected to
Disclosure harmful to personal privacy [of third parties]
22(1) The head of a public body must refuse to disclose personal information to
an applicant if the disclosure would be an unreasonable invasion of a third
party's personal privacy.
...
(3) A disclosure of personal information is presumed to be an unreasonable
invasion of a third party's personal privacy if
At an inquiry into a decision to refuse an applicant access to part of a
record under sections 15, 16, and 19, it is up to the head of the public body
to prove that the applicant has no right of access to the part
(section 57(1)).
At an inquiry into a decision to give an applicant access to part of a record
containing "personal information" that relates to a third party under
section 22, it is up to the applicant to prove that disclosure of the information would
not be an unreasonable invasion of the third party's personal privacy
(section 57(3)(a)).
4. The applicant's case
The applicant wants access to the records in dispute in order to find
out what actually happened to him in 1978-79, since he claims to be not guilty
of the murder. He seeks access to the original statements to the police of
those who testified against him in court, the police photos used in court, and
the notes of the police investigations of him.
In response to police allegations that he remains a risk for harm to persons
involved in his prosecution, the applicant emphasized repeatedly that he is
"not a monster" and thus not a threat to third parties. In his view, it would
not be an unreasonable invasion of the privacy of third parties to disclose
identifiable data about them from police records.
5. The Victoria Police Department's case
As noted in greater detail below, the police have relied on
sections 15(1)(a), (c), (d.1), (e) and (j), 16, 19, and 22(3)(b). With respect to the
last two sections, the police severed "every instance where the personal
information of a third party (i.e., that of a witness) appears in the report
material," because to release that information "would be an unreasonable
invasion of the third parties' personal privacy and also has the potential to
endanger the safety or mental or physical health of those witnesses." It makes
similar claims for the personal information of other suspects in the case.
Although the applicant is in prison, the police argue that he can threaten
others by correspondence, telephone calls, or the assistance of
recently-released criminal associates. (Submission of the Police, pp. 4, 5)
The police conclude that it is in the public interest that information about
third parties and other suspects not be disclosed to the applicant in order to
protect their privacy and to protect them from possible harm. (Submission of
the Police, p. 11)
6. Discussion
What the applicant wants
The police essentially responded to a very broadly-worded request from the
applicant for all records in its possession concerning his trial and
conviction. The applicant refined his request somewhat during the inquiry.
One of his requests is for all of the statements that witnesses who appeared in
court at his trial gave to the police in the first instance. (He accepts that
he has no right to access witness statements that were not used in court by the
prosecution.) His interest is in learning whether there were contradictions in
these statements between what was said to the police and what was said in the
court. While I sympathize with his concern, I note that this is not relevant
to a request for access to records under the Act, which has to be evaluated on
the basis of the exceptions in it. Nor is relevant that the applicant was
unable to read or write what was written about him at the time of his trial.
These are matters for the federal government to consider in an application for
a new trial under section 690 of the Criminal Code. (See Submission of
the Police, p. 3) If such a petition were to be granted, a federal prosecutor
would deal with counsel for the applicant for access to such records as those
in dispute in this case. The police testified at the inquiry that they do not
have the court transcripts and have no idea whether there are discrepancies
between witness statements to them and to the court.
The applicant is under the mistaken notion that he can use the Act to secure
access to court records from his trial. Such records are not under the
jurisdiction of the Act (section 3(1)(a)), unless they are for some reason in
the custody, or under the control of, a public body. Even if the applicant
once had such records in his possession and he and/or his counsel have lost
them, the Act is not a vehicle for access to court records that are not
administrative records of a court (section 3(1)). Thus even though the
applicant claims to remember the names of those who testified against him in
open court, this is not relevant to his request for access to the same
information, from police records, under the Act.
In camera session
The applicant, who is incarcerated in another province and who participated in
the inquiry by telephone conference call, was concerned that he could not be
present at the in camera session that I held during the inquiry to
discuss an in camera submission from the police department. I informed
him then that the written material to be discussed in camera consisted
of about three more pages beyond the written submission already shared with
him. In fact, the in camera session lasted less than fifteen minutes
and consisted of the police identifying for me the thirteen paragraphs added
for in camera purposes to the document shared with the applicant. The
police gave me brief explanations of why they chose not to reveal this
information or argument with the applicant. In every instance, I find that the
police acted properly and in accordance with the Act in the choices they made
concerning submissions made in camera.
The applicant was also concerned that his interests would not be protected
during an in camera session, because he could not be present and because
his trust in authorities is non-existent. I reminded him that it is my
responsibility to be objective and disinterested in the conduct of inquiries
and in the evaluation of submissions to me, from all parties, in the course of
conducting an inquiry and making my decisions. This is an obligation that I
take very seriously.
The police agreed in camera that a copy of an affidavit to a court
could be released to the applicant from the file of witness statements.
Section 15: Disclosure harmful to law enforcement
Under this section of the Act, a municipal police chief has considerable
discretion not to disclose information affecting a very broad range of law
enforcement interests.
Section 16: Disclosure harmful to intergovernmental relations
The police argue that law enforcement information obtained from other police
departments in the U.S. fall under both the section 15 and 16 exemptions. At
my urging the police informed the applicant, at the hearing, which U.S. police
departments were involved.
Section 19: Disclosures harmful to individual or public safety
The police argued that the applicant was dangerous in 1978-79
and remains a threat to various people even today. The primary investigator in
the original murder investigation is now the Chief Constable, and thus head of
the public body, so he was able to bring his personal knowledge of the
applicant to bear on the judgment of ongoing risk of harm. (Submission of the
Police, p. 2; In Camera Submission of the Police, p. 6)
The applicant contested, vigorously, the police contention that there were
criminal charges outstanding against him at the time of his arrest and trial
and evidence connecting him to other murders in the United States. (Submission
of the Police, p. 2) The police responded by claiming that they based their
opinion on information in police files from the time of the trial. Whatever
the accuracy of this particular allegation, I find that the police were
authorized to base their judgments of current risk to individual and public
safety on all of the information available to them, at present, in the conduct
of their risk assessment. (See Submission of the Police, pp. 4-6)
Based on my own review of the records in dispute, I find that a number of
individuals might still be at substantial risk if their role in the original
prosecution became known to the applicant. As I stated in Order No. 18-1994,
July 21, 1994, p.4 , I prefer to act prudently when it comes to disclosure
of personal information about individuals who can reasonably be expected to be
at risk of harm, now or in the future, from the disclosure.
Section 22(3)(b): The privacy rights of third parties
I agree with the police that their severance of personal information about
identifiable third parties, including witnesses and other suspects, was
appropriately kept from release to the applicant. Such persons continue to
have rights to privacy under the Act, even for statements made as long ago as
1978-79 as part of a police investigation of a murder in Victoria. I note as
well that this particular part of section 22 presumes that disclosure of
personal information "compiled and ... identifiable as part of an investigation
into a possible violation of law" is "an unreasonable invasion of a third
party's personal privacy."
In my opinion, the passage of time has restored the witnesses' personal
privacy in respect of their statements. While some of the statements may have
been considered in open court in 1978 and 1979, the door of privacy has closed
on these records because they contain sensitive personal and law enforcement
information. The witnesses' "right to be forgotten" shifts these
formerly-available records under the protection of sections 22(1) and 22(3)(b)
of the Act. If they were to be disclosed today, there is a presumption that an
unreasonable invasion of the witnesses' personal privacy would occur.
The records in dispute
In order to reach my decisions in this inquiry, I have carefully reviewed each
of the records in dispute, as follows.
1. Victoria City Police investigation report [135pp.] (partially disclosed and
severed under sections 15, 19, and 22)
These are the records kept by police investigators from the start of a murder
investigation on May 14, 1978 through the applicant's hearing before the B.C.
Court of Appeals in May 1980. The police have withheld about forty pages in
total. The excluded narrative material includes names, addresses, and other
identifiers of witnesses and informants and some of what they told the police.
Other withheld information concerns the broad category of criminal intelligence
and confidential sources of law enforcement information. I find that this
record has been appropriately severed under section 15, 19, and 22 of the
Act.
2. Identification Section documents (3 records disclosed in full; 3 records
severed and/or withheld under paragraph 15(1)(c))
This file contains approximately twenty pages. Seven pages, plus a few
paragraphs, have been withheld from the applicant. I find that they have been
appropriately withheld under section 15(1)(c), since they concern
"investigative techniques and procedures currently used, or likely to be used,
in law enforcement."
The following categories of records have been completely withheld from the
applicant.
3. Detective daily reports (withheld under sections 15 and 22)
In 1978 this source of several hundred pages served as a daily log or notebook
of all of a particular police officer's activities. A clerical assistant then
transcribed the relevant portions for a particular case into an investigation
report, as in item 1 above. The police argue that this makes the daily reports
"an `illustrative guide' to investigative techniques. An individual who was
given the opportunity to study such a log would clearly have an advantage
should that individual decide to commit a crime similar to the one detailed."
(Submission of the Police, p. 7) It might help a released convict reoffend. I
find this argument unpersuasive with respect to section 15(1)(c):
"investigative techniques." I am also unpersuaded that release of this
information would facilitate the commission of a crime by this applicant, or
any other, meaning that it should be kept from disclosure under
section 15(1)(j). (Submission of the Police, p. 8) However, I am satisfied that
severing of this category of records under other parts of section 15 and
sections 19 and 22 would give the applicant nothing more than what he has been
entitled to receive under item 1 above. I therefore find that this category of
records was properly withheld from the applicant.
4. Witness statements (withheld under sections 19 and 22)
This file contains lists of police and lay witnesses and copies of the written
statements that the latter made to the police during their investigation.
There are about sixty pages. Much of the same information appears in item 1
above. I find that this set of records has been appropriately withheld from
the applicant under sections 19(1) and 22(3)(b).
5. Amador County, California: District Attorney's Office documents and reports
(withheld under sections 15 and 16)
This twenty-page record concerns a criminal prosecution and conviction of the
applicant in 1975 for assault with a deadly weapon. Most of the pages are
statements by witnesses to the event. There is also the record of a five-page
interrogation of the accused. I find that this record has been appropriately
withheld under sections 15(1), 16(1), and 16 (3) of the Act.
6. Port Angeles, Washington, Police Department reports and documents (withheld
under sections 15 and 16)
This record concerns the police investigation of a homicide in April 1978 in
Port Angeles, Washington. It includes witness statements and photographs. I
find that this record has been appropriately withheld under sections 15(1),
16(1), and 16(3) of the Act.
7. Sacramento Police Department reports and documents (withheld under
sections 15 and 16)
This record contains copies of various offences reported to the Sacramento
Police Department between 1969 and 1973 involving the applicant. I find that
this record has been appropriately withheld under sections 15(1), 16(1), and
16(3) of the Act.
8. San Diego Police Department documents (withheld under sections 15 and 16)
This record consists of only two pages. I find that this record has been
appropriately withheld under sections 15(1), 16(1), and 16(3) of the Act.
9. Other police agency reports and documents (withheld under sections 15 and
16)
Only one of the three records in this file concerned the applicant, and then
only in small part. I find that these records were appropriately withheld
under sections 15 and 16 of the Act.
10. Follow-up correspondence file (withheld under section 15(1)(c))
This record is a miscellaneous collection of investigative material
surrounding the 1978 murder in Victoria and police efforts to solve it. I find
that the relatively small amount of information that concerns the applicant has
been appropriately withheld under section 15 of the Act.
11. Canadian Police Information Centre (CPIC) correspondence (withheld under
sections 15 and 16)
These records are file copies of communications over CPIC during Canada-wide
police investigations of the Victoria murder. They are mainly messages among
and between police departments, only a small amount of which concerns the
applicant. I find that these records have been appropriately withheld under
sections 15 and 16 of the Act.
12. Investigating detective's working notes (withheld under sections 15(1)(a)
and 15(1)(c))
Victoria police investigators met with various United States law enforcement
officials to discuss a series of homicides that seemed to show similar
patterns. This record contains information about the various crimes. I find
that these records have been appropriately withheld under sections 15 and 16 of
the Act.
13. Photograph file on the 1978 homicide investigation and other crimes
believed to be related (withheld under sections 15 and 22)
This file contains crime scene photos and photographs compiled during the
murder investigation in Victoria. Only two or three pages of photos out of
approximately fifty pages of photos concern the applicant directly. There are
many more photos of victims. I find that the records have been appropriately
withheld under sections 15 and 22 of the Act.
7.
Order
I find that the Victoria Police Department was authorized or required to
refuse access to the records in dispute.
Under section 58(2)(b) of the Act, I confirm the decision of the Victoria
Police Department to refuse access to the records in dispute to the applicant
under sections 15, 16, and 19. Under section 58(2)(c), I require the Victoria
Police Department to refuse access to those parts of the records in dispute
under section 22.
October 12, 1995
David H. Flaherty
Commissioner