Legal Commentary

Battle over Toronto police data brings landmark access ruling

By David Canton

For the London Free Press - February 23, 2009 

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The Ontario Court of Appeal recently handed down what is being hailed as a landmark decision in terms of openness and transparency in electronic records.

A complaint by James Rankin, a journalist at the Toronto Star newspaper, led to an adjudicator’s decision, an appeal to the Divisional Court and a further appeal to the Ontario Court of Appeal. It has significantly broadened rights to view electronic records of governmental agencies.

Rankin had written a series of articles in the Star in which he hypothesized that the Toronto police engaged in racial profiling — an allegation vehemently denied by the police.

In an effort to substantiate his claims, Rankin applied under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) for disclosure of certain police records. Specifically, Rankin wished to know whether individuals with police records had been arrested only once or on multiple occasions.

The journalist acknowledged the information he sought would contain personally indentifying information that would violate privacy laws if disclosed. However, Rankin felt the indentifying information could be replaced by a system of coded numbers, essentially assigning a specific number to each individual. This system would allow him to access the information he needed without compromising the right to privacy of those individuals with police records.

His request was denied by the Toronto Police Services Board, which stated that processing Rankin’s request would force them to design a new computer program to rid the data of the identifying information. The police did not deny they could create such a program, but instead denied the request on the grounds the information did not constitute a record as set out in the MFIPPA.

Upon the refusal of his request, Rankin filed an appeal with the Information and Privacy Commissioner of Ontario. The adjudicator held that the information being requested by Rankin was a record under the MFIPPA and ordered the police services board to disclose the records with the understanding that Rankin was to pay the board’s cost in obtaining the requested information.

The Toronto Police Services Board appealed the adjudicator’s decision to the Divisional Court. The court accepted the board’s arguments and ruled the information being requested by Rankin was not a record pursuant to the definition set out in the MFIPPA.

The Divisional Court’s decision was then appealed by Rankin to the Ontario Court of Appeal, which overturned the lower court’s ruling and reinstated the adjudicator’s decision.

In a statement released just after the Court of Appeal decision, Ontario Information and Privacy Commissioner Ann Cavoukian said: “This case represents a victory for openness and transparency in the context of electronic records. Welcome to the 21st Century.”

Full post as published by eLegal Canton on February 23, 2009 (boomark / email).