A university professor and researcher has lost his bid to have internal disciplinary records for members of Sault Ste. Marie Police Service released.
Earlier this month, Ontario's Information and Privacy Commissioner (IPC) rejected an appeal launched by Dax D’Orazio and upheld the police service’s decision to deny him access to statistics on internal disciplinary measures requested under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).
The three-page police document D’Orazio was looking to access would have shown the monthly number of internal disciplinary measures applied to Sault Ste. Marie Police Service members between January 2015 and April 2021 in chronological order. The record did not contain information such as the name of the individual disciplined, their rank or the nature of the disciplined conduct, according to the recent IPC order.
In an email to SooToday, D’Orazio — a Post-Doctoral Fellow in the Department of Political Studies at Queen's University and an advocate for transparency and accountability in public institutions — called the IPC decision to deny his appeal “a huge blow to transparency in police oversight.”
He added that while there are external disciplinary processes that takes place through the Office of the Independent Police Review Director and the Special Investigations Unit — triggered by complaints from the public, or when a member of the public sustains a serious injury as a result of their interactions with the police — internal disciplinary measures have also been used in response to other serious forms of police misconduct in Ontario.
“The big picture here is that the publicly available statistics may only be showing us the tip of the iceberg, and the two-tiered process of oversight and discipline arguably leaves too much discretion in the hands of police services, who might opt for a disciplinary process that's shielded from the public, if possible,” D'Orazio said.
Sault Ste. Marie Police Service argued to the privacy commissioner that disciplinary records were excluded under Section 52(3)3 of the municipal freedom of information act, which states the act doesn’t apply to “meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.”
The police service also argued that a personal privacy exemption under Section 14(1) of the act also prevented it from releasing the internal records.
During the mediation process with the privacy commissioner, D’Orazio took the position that the disclosure of the disciplinary records was in the realm of public interest under Section 16 of the act.
The appeal then moved to the adjudication stage after mediation failed to resolve it. After receiving representations from both parties, the privacy commissioner upheld the police service’s decision that the records did not apply to the municipal freedom of information act and subsequently denied D’Orazio’s appeal.
In its representations to IPC, Sault Ste. Marie Police Service said it’s not common practice for other institutions to make monthly or annual numbers of internal disciplinary measures publicly available. It also argued that internal discipline is “not necessarily related to a complaint by a member of the public.”
“The police submit that by requesting ‘internal’ information the appellant is seeking to know what happened in employee-related matters that don’t involve him or affect him,” the IPC said in its order.
D’Orazio, on the other hand, argued that the requested information is within the scope of public interest and wouldn’t have contained details on individual cases.
“The appellant submits that given the extraordinary powers granted to police services across Canada, the public is justified in advocating for robust oversight, accountability, and transparency through the disclosure of information like the information at issue in this appeal,” the order said.
D’Orazio believes excluding information on internal disciplinary measures isn’t without consequence: When internal disciplinary mechanisms are used in response to serious police misconduct, he told SooToday, “the public is likely to be completely in the dark.”
“My hope was that aggregate statistics, devoid of specific information about an employee or potential misconduct, wouldn't qualify for that statutory exemption,” D’Orazio said. “I think I requested something that was minimally intrusive and wouldn't prejudice labour relations and/or reveal specific information that's not in the public interest.”
D’Orazio, who has been collecting data on police oversight in the Sault for a few years now, believes legislation can easily be amended in order to subject incidents involving police misconduct through both external and public disciplinary processes.
“Police have extraordinary power and the only way to make sure that power is exercised responsibly is to make sure there's robust oversight and misconduct is treated appropriately,” he said.
