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OVERVIEW
Section 15 is a discretionary exception to the public’s general right of access under section 4 of the Act. Section 15 lists the types of harms to law enforcement.
SECTION REFERENCE
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(1) |
The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to |
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(a)
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harm a law enforcement matter, |
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(b)
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prejudice the defence of Canada or of any foreign state allied to or associated with Canada or harm the detection, prevention or suppression of espionage, sabotage or terrorism, |
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(c)
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harm the effectiveness of investigative techniques and procedures currently used, or likely to be used, in law enforcement, |
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(d)
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reveal the identity of a confidential source of law enforcement information, |
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(e)
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reveal criminal intelligence that has a reasonable connection with the detection, prevention or suppression of organized criminal activities or of serious and repetitive criminal activities, |
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(f)
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endanger the life or physical safety of a law enforcement officer or any other person, |
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(g)
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reveal any information relating to or used in the exercise of prosecutorial discretion, |
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(h)
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deprive a person of the right to a fair trial or impartial adjudication, |
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(i)
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reveal a record that has been confiscated from a person by a peace officer in accordance with an enactment, |
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(j)
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facilitate the escape from custody of a person who is under lawful detention, |
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(k)
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facilitate the commission of an offence under an enactment of British Columbia or Canada, or |
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(l)
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harm the security of any property or system, including a building, a vehicle, a computer system or a communications system. |
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(2) |
The head of a public body may refuse to disclose information to an applicant if the information |
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(a)
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is in a law enforcement record and the disclosure would be an offence under an Act of Parliament, |
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(b)
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is in a law enforcement record and the disclosure could reasonably be expected to expose to civil liability the author of the record or a person who has been quoted or paraphrased in the record, or |
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(c)
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is about the history, supervision or release of a person who is in custody or under supervision and the disclosure could reasonably be expected to harm the proper custody or supervision of that person. |
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(3) |
The head of a public body must not refuse to disclose under this section |
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(a)
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a report prepared in the course of routine inspections by an agency that is authorized to enforce compliance with an Act, |
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(b)
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a report, including statistical analysis, on the degree of success achieved in a law enforcement program unless disclosure of the report could reasonably be expected to interfere with or harm any of the matters referred to in subsection (1) or (2), or |
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(c)
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statistical information on decisions under the Crown Counsel Act to approve or not to approve prosecutions. |
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(4) |
The head of a public body must not refuse, after a police investigation is completed, to disclose under this section the reasons for a decision not to prosecute |
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(a)
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to a person who knew of and was significantly interested in the investigation, including a victim or a relative or friend of a victim, or |
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(b)
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to any other member of the public, if the fact of the investigation was made public. |
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SUMMARY
Section 15 is a discretionary exception to the public's right of access to information, the disclosure of which could reasonably be expected to harm law enforcement. Section 15 lists the types of harms to law enforcement.
Under section 15, a head of a public body must not refuse to disclose routine inspection reports or statistical prosecution information. A head must not refuse to disclose a report on the effectiveness of a law enforcement program, unless disclosure of the report would interfere with or harm any of the matters listed in section 15, or if any other exception applies.
If a record contains information the disclosure of which would be harmful to law enforcement, subsection 8(2) permits the head to refuse to confirm or deny its existence. A refusal to confirm or deny the existence of a record is a significant limit to the right of access.
Law enforcement is not limited to the investigative activities of police forces; paragraph 15(1)(a) provides an exception for a wide variety of investigations and proceedings by public bodies, including bylaw enforcement by a municipality or disciplinary proceedings by a self-governing profession.
The degree of harm to law enforcement will depend, in part, on the sensitivity of the law enforcement information. For example, life-and-death information relating to the identity of confidential sources of law enforcement information may be withheld even if there is a possibility, as opposed to a probability, of harm to law enforcement.
Cases may arise where there is a presumption of a mosaic effect inherent in the disclosure. The requested information may not satisfy the threshold test when considered in isolation. A public body may except information where it forms part of a larger picture, or is one of many requests that collectively fall within one or more of paragraph 15(1)(a) to (k).
Subsections 15(3) and (4) require the head to release certain types information under particular circumstances.
POLICY
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Public bodies may refuse to disclose information which would harm a law enforcement matter.
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Although it is not necessary to demonstrate that actual harm will result, or that actual harm resulted from a similar disclosure in the past, public bodies should consider past experiences as a factor in determining whether harm to a law enforcement matter has occurred.
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Public bodies who refuse to disclose information on the basis of the mosaic effect must be able to demonstrate that the cumulative effect related to the requested information can satisfy the harm test.
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Public bodies shall provide explicit assurances of confidentiality to confidential sources of law enforcement information, wherever possible.
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Public bodies may refuse to disclose law enforcement information provided by an anonymous source if there is no way to determine whether disclosure of the information would result in the identification of that anonymous source.
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Public bodies must not refuse to disclose routine inspection reports or statistical prosecution information.
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Public bodies must not refuse to disclose under section 15 a report on the effectiveness of a law enforcement program, unless disclosure of the report would interfere with or harm any of the matters as listed in the section.
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Subsection 8(2) permits public bodies to refuse to confirm or deny the existence of a record if the record contains information the disclosure of which would be harmful to law enforcement.
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Public bodies shall interpret the definition of "law enforcement" to include investigations that lead or could lead to the imposition of a penalty or sanction either by the public body itself, or by another public organization.
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If a public body has started an investigation, records that are relevant to the investigation are excepted from disclosure regardless of when the record was created.
PROCEDURE
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Preliminary Examination
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Line by Line Review
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Program Effectiveness Assessment
Determine whether the information is an assessment of the effectiveness of a law enforcement program. If so, the information must be released unless one of the specified harms to law enforcement could reasonably be expected to result from its disclosure, or if another exception applies.
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Routine Inspection Report or Prosecution Statistics
Determine whether the information is a routine inspection report, or statistical information on prosecution decisions. If so, the information must be released unless another exception applies.
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Exercise of Discretion
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Severance
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Refuse to Confirm or Deny the Existence of the Record
There are situations in which the disclosure of the mere existence of a record could result in harm to law enforcement. For example, disclosure of investigation records or criminal intelligence might reveal information to the applicant that would harm an investigation or intelligence-gathering activity.
If a record contains information the disclosure of which could reasonably be expected to harm law enforcement,
subsection 8(2) permits the head to refuse to confirm or deny its existence. Where the head refuses to confirm or deny the existence of a record, the public body notifies the applicant of the refusal under subsection 8(1) of the Act.
A refusal to confirm or deny the existence of a record is a significant limit to the right of access. If an applicant asks the Commissioner to review a refusal to confirm or deny the existence of a record, the public body will be required to provide detailed and convincing reasons why subsection 8(2) was claimed.
INTERPRETATION
The "mosaic" effect
Law enforcement investigations sometimes resemble jigsaw puzzles. Crucial pieces of evidence are often collected without initial awareness of their importance. Different agencies collect parts of the puzzle and then collectively draw this information together to complete an investigation. An assumption that disclosure of information will cause harm presumes that the law enforcement agency is already aware of the information's importance. In reality, the opposite often is true during an investigation.
Cases may arise where there is a mosaic effect inherent in the disclosure. The requested information may not satisfy the threshold test for harm under section 15 when considered in isolation. However, a public body may except information where it forms part of a larger picture, or is one of many requests that collectively fall within one or more of paragraphs 15(1)(a) to (k). A public body that excepts information on the basis of the mosaic effect must be able to demonstrate that the cumulative effect of a series of disclosures related to the requested information could satisfy the injury test.
As noted above, public bodies need not demonstrate that actual harm will result from disclosure of information. The test is whether harm is reasonably likely to result from the disclosure. Public bodies should exercise caution in the application of this exception.
Interpretation 15(1):
"Disclosure could reasonably be expected to"
There must be objective grounds to believe that disclosure will reasonably result in one of the harms contemplated by this exception.
The demonstration of harm will depend, in part, on the sensitivity of the law enforcement information. For example, life-and-death information relating to the identity of confidential sources of law enforcement information may be withheld even if there is a possibility, as opposed to a probability, of harm to law enforcement.
In the event of an inquiry into a decision to deny access to information under this exception, the Information and Privacy Commissioner (the Commissioner) will require the public body to present detailed and convincing evidence of the facts that led to the expectation that harm could occur if the information were disclosed. There must be a link between the disclosure of the specific information and the harm that is expected from its release.
Interpretation 15(1)(a):
Paragraph 15(1)(a) permits the head to refuse disclosure of information that would harm a law enforcement matter. "Law enforcement" is not limited to the investigative activities of police forces; paragraph 15(1)(a) provides an exception for a wide variety of investigations and proceedings by public bodies, including disciplinary proceedings by a public body.
To "harm" a law enforcement matter matter means that disclosure would damage or be detrimental to law enforcement. This threshold provides adequate protection for law enforcement activities, while preserving the public right of access to some types of law enforcement information. A fear that disclosure would hinder, impede or minimally interfere with a law enforcement matter does not satisfy this harm test.
To rely on this paragraph, the head must demonstrate that disclosure of a record could reasonably be expected to harm a matter relating to policing; criminal intelligence; or investigations or proceedings that could result in a penalty or sanction being imposed.
Examples:
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Release of an investigation file on a drug trafficking ring would alert the suspects to the police investigation and could reasonably be expected to harm the investigation.
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The disclosure of the identities of witnesses could reasonably be expected to result in witnesses no longer being willing to come forward with similar information.
The fact that an investigation is ongoing is not in itself sufficient to satisfy this exception.
Interpretation 15(1)(b):
Paragraph 15(1)(b) allows a head to refuse disclosure of information that could reasonably be expected to be detrimental to national security, or information that would harm the detection, prevention or suppression of espionage, sabotage or terrorism.
British Columbia public bodies hold only limited information related to national security. However, the presence of federal military installations within the province and the need for cooperation between the federal and provincial governments and local public bodies for emergency planning are both matters that could be of interest to a foreign power.
"Prejudice"
"Defence of Canada" means any activity or plan relating to the defence of Canada. This includes activities that improve Canada's resistance to attack.
An "allied" state is a state with which Canada has concluded formal alliances or treaties.
An "associated" state is a state with which Canada may be linked for trade or other purposes outside the scope of a formal alliance.
Example:
The "harm" test in the second part is higher than the prejudice required in the first part of the provision. That is, there must be clear and convincing evidence that harm to the detection, prevention or suppression of espionage, sabotage or terrorism could occur if the requested information were to be disclosed.
"Espionage" is any activity carried out by spies, or activity related to spying. Espionage generally is a covert activity.
"Sabotage" is malicious or wanton destruction. Acts of sabotage are usually directed against property, but are not limited to property.
"Terrorism" means acts of serious violence or other activities that create fear in individuals, groups or nations. Terrorist tactics are generally used to coerce governments or communities into taking or ceasing specific actions.
Example:
Interpretation 15(1)(c):
Paragraph 15(1)(c) permits a head to refuse disclosure of information that could harm the effectiveness of investigative techniques used in law enforcement. It recognizes that unrestricted access to law enforcement techniques could reduce their effectiveness. The exception is limited to investigative techniques or procedures currently in use or likely to be used.
"Effectiveness" in this context means the investigative technique or procedure remains useful, productive and proficient.
"Investigative techniques and procedures" means the methods or processes by which examinations, enquiries or observations are carried out. The meaning of this phrase includes the equipment and technology employed to conduct these examinations, enquiries or observations.
The requirement that harm could reasonably be expected to result precludes the exception of information about commonly known investigative techniques such as wiretapping or fingerprinting. This is consistent with the underlying philosophy of the exception: the only reason for withholding information about investigative techniques and procedures is to ensure their continued effectiveness.
If the fact that a specific investigative technique was employed could reasonably be expected to harm a law enforcement matter, this information may be withheld under paragraph 15(1)(a).
"Likely to be used" forms part of the exception to protect techniques and technology in the development phase, or new equipment or technology acquired by law enforcement bodies but not yet used.
Examples:
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Sophisticated DNA testing to identify perpetrators of crime.
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New electronic eavesdropping equipment.
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Sensitive training materials or procedures, such as mobile surveillance methods.
Interpretation 15(1)(d):
Paragraph 15(1)(d) enables a head to refuse disclosure of information that reveals the identity of a confidential source of law enforcement information. The fact that the information, if disclosed, could reveal the identity of a confidential source is sufficient to apply this exception. The head need not demonstrate that harm could come to the source.
"Identity" includes the name or identifying characteristics, symbols and numbers of the confidential source.
A "confidential source" is someone who has provided information to a public body with the assurance that his or her identity will remain secret. The assurance may be express or implied. There must be evidence of the circumstances in which the information was provided to establish whether the source is confidential.
Information provided by the confidential source must be "law enforcement information" to qualify for this exception.
After satisfying these requirements, the head of the public body determines whether the particular information provided by the confidential source could reasonably be expected to enable the applicant (or any other person) to identify the source. This could occur where the source is the only individual who was aware of the information. Law enforcement information provided by an anonymous source may be excepted if there is no way to determine whether disclosure of the information would result in the identification of that anonymous source.
In some cases, it may be difficult to determine whether the disclosed information could be pieced together with other information available to the applicant to enable the applicant to identify the source. Therefore, public bodies should exercise caution in applying this exception to ensure the safety of the confidential source (see note on the mosaic effect).
Examples:
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Information given in confidence to an auditor, where the employee is a whistle-blower providing information about wrongdoing.
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Name and address of a police informant.
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Information provided in confidence by a parent about her son’s activities while at home.
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Details about how and when an informant gathered the information about a crime if these details could reasonably be expected to enable the applicant to identify the informant
Interpretation 15(1)(e):
Paragraph 15(1)(e) enables a head to refuse disclosure of the most sensitive of law enforcement information, criminal intelligence. The improper disclosure of criminal intelligence concerning these types of criminal activities would cause serious harm to law enforcement and confidential sources of law enforcement information.
"Criminal intelligence" means information relating to a person or group of persons compiled by law enforcement agencies to anticipate, prevent or monitor possible criminal activity.
Intelligence gathering is a separate activity from the conduct of investigations. Intelligence may be used for future investigations, for activities aimed at preventing the commission of an offence, and to ensure the security of individuals or organizations.
This paragraph does not require that harm be proven in order to withhold a record containing criminal intelligence. Due to the nature of criminal intelligence, it would normally not be possible to demonstrate that probable harm could result from disclosure of the intelligence. It could take months or years before the significance of the intelligence becomes apparent.
"Organized criminal activities" means criminal conspiracies and other criminal activities of organizations or groups of people. Organized refers to a degree of coordination of the criminal activity, thus excluding random criminal activities. The criminal activity need not be serious, but must be organized.
Example:
"Serious and repetitive criminal activities" means serious criminal activities committed more than once by the same person, group of persons, or organization. The criminal activities may be committed randomly or in a pattern.
Example:
Interpretation 15(1)(f):
Paragraph 15(1)(f) allows a head to refuse disclosure of information where disclosure could endanger the life or physical safety of a law enforcement officer or any other person. This exception recognizes that the disclosure of some information might jeopardize the safety of other individuals. The need for this type of protection may arise most frequently with law enforcement records.
"Endanger the life or physical safety" means where disclosure of information could threaten, or put in peril, someone's life or physical well-being. An individual's physical safety can be threatened as a result of a physical attack or an attack against property that is likely to cause casualties.
"Law enforcement officer" means any individual engaged in policing duties, including criminal intelligence operations.
"Any other person" extends the protection provided by this exception to individuals who are not law enforcement officers. This includes civilians, persons in the witness protection program, family members of law enforcement officers and civilians, and other individuals who assist law enforcement interests.
Examples:
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Witness to a crime.
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Identity of an undercover officer.
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Home address of an arresting police officer.
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Identity of a police informant.
Interpretation 15(1)(g):
Paragraph 3(1)(g) of the Act expressly excludes from coverage by the Act records relating to a prosecution if all proceedings in respect of the prosecution have not been completed. This exclusion recognizes that premature disclosures before trial would impair the ability of the prosecution to present its case effectively.
Paragraph 15(1)(g) permits a head to refuse to disclose information relating to the exercise of prosecutorial discretion. For example, a public body may withhold background information relating to prosecution decisions - these discussions should continue to be made in a candid manner based on relevant factors, without fear that outside influences will interfere with these issues.
The "exercise of prosecutorial discretion" applies to offences under the Criminal Code of Canada or any other enactment of Canada for which the Attorney General of British Columbia may initiate and conduct a prosecution. The exercise of prosecutorial discretion also extends to offences under any enactment of the province (e.g., prosecution of provincial regulatory offences).
Interpretation 15(1)(h):
The head may refuse to disclose information where its disclosure could reasonably be expected to deprive a person of the right to a fair trial or impartial adjudication.
"Deprive"
"Person"
"Fair trial" means a hearing by an impartial and disinterested tribunal; a proceeding which hears before it condemns, which proceeds upon inquiry, and renders judgment only after consideration of evidence and facts as a whole [Black's)].
"Impartial adjudication" means a proceeding in which the parties' legal rights are safeguarded and respected.
This exception does not contain a reference to law enforcement and, therefore, also applies to proceedings that do not fall within the definition of law enforcement. The exception, therefore, applies to civil court actions, criminal court actions, regulatory and disciplinary proceedings, and proceedings before tribunals established to adjudicate individual or collective rights. For example, this exception may apply to a civil action for monetary action or recovery of a debt.
In relying on this exception, the head must present specific arguments about how or why the disclosure of information could deprive a person of the right to a fair trial. The commencement of a legal action is not enough to apply this paragraph.
Example:
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Information about alleged sexual abuse collected as part of the Crown’s case against an individual that, if released prematurely, would prejudice public opinion before legal proceedings were completed.
Interpretation 15(1)(i):
Paragraph 15(1)(i) permits the head to refuse disclosure of information where disclosure could reasonably be expected to reveal a record that has been seized from a person by a peace officer in accordance with a statute or regulation.
"Confiscated" means seized or appropriated by authority or summarily.
"Person" includes both individuals, corporations and partnerships and their representatives, as indicated above.
"Peace officer" includes a mayor, sheriff and sheriff’s officer; a warden, correctional officer, and any other officer or permanent employee of a penitentiary, prison or correctional centre; and a police officer, police constable, constable or other person employed for the preservation or maintenance of the public peace (Interpretation Act, Section 29).
"In accordance with an enactment" means that the authority to confiscate the records in question must be found in a statute or regulation and that the confiscation was carried out in line with the requirements of the statute or regulation.
Example:
Interpretation 15(1)(j):
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