Following a recent decision of the Ontario Court of Appeal, government institutions now have to go the extra mile to comply with their MFIPPA obligation to provide access to information stored in their electronic databases – even if they have to design special software, from scratch, to get at the information.
James Rankin, a journalist with the Toronto Star, wanted to test the claim of the Toronto Police Services that their policemen do not engage in racial profiling. He wanted information from Police about whether certain people had been arrested only once, or more than once, so he submitted a requested under Ontario’s “access to information” laws. Mr. Rankin did not need to know the names of these people who had been arrested – that information is protected by our privacy laws – he just wanted to know the number of arrests. The difficulty was that the electronic databases couldn’t give just the “numbers’ – it contained the personal information as well. The Police complained that in order to comply with Mr. Jenkin’s request, they would have to design special software to get the numbers from the computer system (which would take them about two weeks). Further, this information would be only 65-70 % accurate.
The matter made its way to the Court of Appeal, in Toronto Police Services Board v. (Ontario) Information and Privacy Commissioner . The police argued that, since the information did not exist in the form that Mr. Jenkins wanted, it wasn’t a “record.” They argued that, although they might be required to produce records already in their database, they weren’t obliged to create new records. Further, the process of having to create new software to get this information would be too onerous.
The issue turned on the proper construction of the term “record” in s. 2(1) of the Municipal Freedom of Information and Protection of Privacy Act. Section 2 defined a “record” to include:
any record of information however recorded, whether in printed form, on film, by electronic means or otherwise, and includes…any record that is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution; (“document”).
In a lovely game of semantics, the Court decided to construe the word “record” broadly. It wasn’t necessary that the police “normally use” the software needed to get Mr. Jenkins the information – it was only necessary that the Police normally use the technical expertise (and computer programs/software etc.) used to create the software needed by Mr. Jenkins.
Since municipal institutions such as the Toronto Police serve the public, they ought to be open to public scrutiny. The overarching purpose of “access to information” legislation is to facilitate democracy. It is fundamental to a healthy democracy that government processes be easily scrutinized.