Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 202-1997
December 11, 1997
INQUIRY RE: An applicant's request for records to the Saanich Police
Department
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.oipc.bc.ca
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 September
22, 1997 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a request for review from
the applicant of a decision by the Saanich Police Department to exclude records
from the coverage of the Act.
2. Documentation of the inquiry process
On April 21, 1997 the applicant requested from the Saanich Police Department
all records relating to an incident that took place on February 5, 1997. The
Saanich Police Department responded to the applicant's request on May 13, 1997
by disclosing three pages of records related to the towing of the applicant's
car. Some information relating to law enforcement was severed from one page
under sections 15 and 16 of the Act (regarding unrelated incidents that
occurred on February 5, 1997). This severing of information under sections 15
and 16 is not an issue in the written inquiry.
In the Saanich Police Department's response of May 13, 1997, the police
excluded all records under section 3(1)(h) of the Act that related to the
incident on February 5, 1997. At the time of the Saanich Police Department's
response, criminal charges against the applicant arising from that incident had
not yet been dealt with by the Provincial Court of British Columbia. The
police therefore referred the applicant to the Office of Crown Counsel for
disclosure under the criminal court process.
Other related records dealt with the applicant's complaints against members of
the Saanich Police Department. These proceedings relate to a complaint under
the Police Act, and thus the police excluded them from coverage of the
Act under section 3(1)(h) until completion of the proceedings. At the time of
the Saanich Police Department's response on May 13, 1997 the hearing had not
yet taken place.
On May 27, 1997 the applicant requested a review of the Saanich Police
Department's disclosure decision. The applicant was not satisfied with the
outcome of mediation and requested an inquiry by the Commissioner on July 28,
1997. On August 1, 1997 the Office of the Information and Privacy Commissioner gave
notice to the applicant and the public body of the written inquiry to be held,
by agreement of both parties, on August 26, 1997. By consent of the parties,
the written inquiry date was rescheduled to September 22, 1997.
On November 4, 1997 I requested additional evidence and supplementary
submissions from the parties on the status of the criminal proceedings at the
time of the records request, the existence of any records pertaining to the
police complaint, and the scope of the request for records. The Saanich Police
Department filed an affidavit on November 18, 1997, and the applicant filed a
response on November 24, 1997.
3. Issue under review and the burden of proof
The issue in this inquiry is the Saanich Police Department's decision to
exclude records from coverage of the Act under section 3(1)(h) with respect to
the proceedings before the Provincial Court of British Columbia and the
proceedings under the Police Act. This section is reproduced below:
Scope of this Act
3(1) This Act applies to all records in the custody or under the control of a
public body, including court administration records, but does not apply to the
following:
Section 57 of the Act establishes the burden of proof on parties in an
inquiry. Under section 57(1), where access to information in the record has
been refused under section 3(1)(h), it is up to the public body, in this case
the Saanich Police Department, to prove that the applicant has no right of
access to the records or parts of the records.
4. The records in dispute
The records in dispute relate to two separate proceedings. The first is the
Provincial Court trial of the applicant on criminal charges arising from an
incident on February 5, 1997. The second is a hearing in relation to the
applicant's complaint against members of the Saanich Police Department under
the Police Act.
5. The applicant's case
The applicant's view is that the Saanich Police Department is
withholding records, including personal information, about an incident
involving him on February 5, 1997. He asserts that:
Certain elements of the Public Body have made false records in an
attempt to evade due process and prosecution under the Criminal Code,
and the withholding of information is accessory to multiple violations of the
law, including the Police Act.
The applicant provided three in camera submissions, which I have also
reviewed.
6. The Saanich Police Department's case
The Saanich Police Department submits that all of the records that it
has withheld related to several Criminal Code charges brought against
the applicant. It has done so on the basis of section 3(1)(h) of the Act,
since the charges were still pending at the time of his application for access
and as of September 10, 1997 (when this inquiry was underway).
7. Discussion
I agree with the Saanich Police Department that most of the applicant's
two submissions did not concern themselves with the issue before me in this
inquiry. I wish to add that this is true for the in camera portions of
these submissions as well. (See Reply Submission of the Saanich Police
Department)
I accept that the request for records was sufficiently broad to encompass
documents relating to both the incident of February 5, 1997 and the complaint
which was subsequently filed by the applicant under the Police Act. The
Saanich Police Department claims that section 3(1)(h) applies to both sets of
documents.
Section 3(1)(h): Scope of this Act
The Saanich Police Department has relied upon my interpretation of
section 3(1)(h) in Order No. 20-1994, August 2, 1994, in which I described
section 3(1)(h) [as it is now identified] as "a general exemption for records that
pertain to the administration of justice through the courts." In that Order, I
concluded as follows:
It is my view that this section only applies to records directly associated
with a prosecution that is officially underway, which normally means that a
charge has been laid. At that point the legislature intended to insulate Crown
Counsel from requests for access under this Act until a prosecution is
completed.
The Saanich Police Department further states that once the prosecution
proceedings against the applicant have been completed, he will have a right of
access under the Act to the information in dispute.
I am satisfied on the basis of the evidence filed that the Saanich Police
Department has discharged its burden of proving that the records concerning the
incident of February 5, 1997 related to the prosecution of a criminal offence
that was officially underway and not yet complete at the time of the
applicant's request. The trial is currently scheduled for January 29, 1998.
As a consequence, I conclude that the Saanich Police Department properly
excluded these documents from the application of the Act under
section 3(1)(h).
I do not agree, however, that section 3(1)(h) applies to documents relating to
the Police Act complaint against members of the Saanich Police
Department. Section 3(1)(h) provides that the Act does not apply to "a record
relating to a prosecution if all proceedings in respect of the prosecution have
not been completed." "Prosecution" is defined in Schedule 1 as "the
prosecution of an offence under an enactment of British Columbia or Canada."
In my view, the proceedings under section 58 of the Police Act in this
case did not relate to the prosecution of an "offence." When the Chief
Constable refused to investigate the applicant's complaint against members of
the Saanich Police Department, a panel of the Saanich Police Board was
established under section 58(2)(b) of the Police Act to review that
decision. The panel unanimously upheld the Chief Constable's decision. The
proceedings were in the nature of an administrative review of a decision made
concerning the need for an investigation and did not constitute a prosecution
for a provincial or federal offence.
While section 3(1)(h) does not apply to the police complaint records in this
case, the evidence indicates that the applicant has already been given access
to all of Chief Constable J.R. Arnold's records in relation to that complaint
(Affidavit of Kenneth Schmidt, paragraphs 10 and 13)
Section 2(2): Purposes of this Act
(2) This Act does not replace other procedures for access to information
or limit in any way access to information that is not personal information and
is available to the public.
The Saanich Police Department has also relied on this section of the Act to
deny access to the applicant because he has a right to disclosure by means of
Crown Counsel as provided for in Regina v. Stinchcombe (1991), 68
C.C.C. (3d) 1, a decision of the Supreme Court of Canada. To do otherwise, it
contends, "raises the possibility of compromising the prosecution efforts."
In terms of the application of the Act itself, and the avenues for access to
information that exist under it, I do not find the Saanich Police Department's
submission on this subsection compelling. As I stated in a previous
Order, "section 2(2) simply confirms that other procedures for access to information
continue to exist; it does not limit my jurisdiction under the Act." (See
Order No. 158-1997, April 10, 1997, pp. 3, 4; see also Order No. 51-1995,
September 14, 1995, p. 4.)
8.
Order
I find that the Saanich Police Department has properly applied section 3(1)(h)
of the Act and is authorized to refuse access to the records pertaining to the
incident of February 5, 1997 and the resulting criminal charges against the
applicant. Under section 58(2)(b) of the Act, I confirm the decision of the
Saanich Police Department to refuse access.
I also find that section 3(1)(h) does not apply to the records relating to the
Police Act complaint. Under section 58(2)(a) of the Act, I require the
Saanich Police Department to give the applicant access to any records that
relate to the complaint under the Police Act. However, since I have
found that the Saanich Police Department has disclosed all the responsive
records to the applicant, I find that the Saanich Police Department has
complied with this part of the Order and discharged its duty under section 6(1)
of the Act.
December 11, 1997
David H. Flaherty
Commissioner