Imagine this. You are a professional wanting to move up in your niche field. Your next job requires an enhanced security clearance from a federal agency. You have had security and reliability clearance checks done for previous jobs, you are not worried and expect to clear the enhanced clearance. You do the paperwork, confirm references, attend interviews with the agency and the employer, and wait for few weeks, expecting the clearance to come through.
Instead, you get a notice from your new employer stating that your enhanced security clearance failed, so you don’t qualify for the new job. You look into it, and you are told something to the effect of “there was a police file opened years ago, and while no charges were filed and the file is considered closed, in databases the file remains open for administrative reasons.”
This blogpost discusses what to do in circumstances like this, i.e., how to access records held by the police, and how to request correction or annotation of the information. For our purposes, I use the Vancouver Police Department (“VPD”) and the Royal Canadian Mounted Police (“RCMP”) to explain the procedure. Each police agency, local or federal, have distinct regimes and requirements, so what applies in the context of VPD may not apply to Victoria or Abbotsford police departments, for instance.
These administrative law processes are cumbersome and tricky to navigate, often requiring a lawyer’s assistance. Please do not hesitate to reach out if you need help with accessing and correcting your information.
I. Access to Records
Access to records held by provincial agencies are governed by the Freedom of Information and Protection of Privacy Act (the “FIPPA”),[1] Under FIPPA, you are required to request the records directly from the VPD by clearly and concisely stating in writing that you seek such pertinent records as defined by FIPPA, indicating the record’s type and date (or range of date).
Respecting the VPD, you will need to request your file through the FIPPA mechanism, either using the prescribed form or through a letter. You may mail, fax, or e-mail these documents. I will do this on your behalf. You will need to give the VPD the statutory time of 30 days to respond.[2] It should not take more than 30 days.
Access to records held by federal agencies are governed by federal legislation. The RCMP requires that you make a formal access request, under the federal Privacy Act[3] and the Access to Information Act,[4] to access your personal information held by them. You may do this by mailing in the prescribed form or by filing an Access to Information and Privacy (ATIP) Online Request through the Treasury Board of Canada’s online portal. You will need to create an ATIP account to request your personal information. Because the RCMP is a nation-wide agency, the search is done by division, detachment, program, or employee who holds the records in question. Accordingly, they may request more particulars than provided or may take longer than 30 days to respond to our request.
Keep in mind that the standard of service by which both the VPD and the RCMP are required to respond to your request is that of a “reasonable effort.” This means that both police services are to put a reasonable effort in finding the requested records. That said, the RCMP is highly likely to longer than 30 days to respond due to operational constraints, including but not limited to the agency’s paper-based processes, the order in which the request was received, the ongoing backlog, etc. Once you make an online request via the ATIP portal, the ATIP branch in Ottawa opens a file, and identifies and asks the employee responsible for the records. Expect them to ask for more time to collect those records, and you have to comply or else they simply close the file. Once all relevant materials are search and catalogued, they are reviewed for exemptions and exclusions under the two federal enactments. They will give you the records requested, provide you a letter explaining the exemptions and exclusions, or both.
Keep also in mind that any personal information of a third party will be redacted if providing that information would be an unreasonable invasion of their privacy. Similarly, if there is information that if released could harm another law enforcement matter, then such information will be redacted.
That said, there are successful cases where third party information has been released if the applicant already knows such information. Consider the following case. Order 01-53[5], which helpfully outlines the procedural nuances of section 22 of the FIPPA:[6]
“[17] … Section 22(1) of the Act provides that a public body must refuse to disclose personal information the disclosure of which would unreasonably invade third-party personal privacy…
[22] 3.3 How Section 22 is Applied – When a public body is considering the application of s. 22, it must first determine whether the information in question is personal information within the Act’s definition of “personal information”.
[23] The next step in the s. 22 analysis is to determine whether disclosure of the personal information would be an unreasonable invasion of a third party’s personal privacy. The public body must consider whether disclosure of the disputed information is considered, under s. 22(4) of the Act, not to result in an unreasonable invasion of third-party privacy. …
[24] Next, the public body must decide whether disclosure of the disputed information is, under s. 22(3), presumed to cause an unreasonable invasion of privacy. According to s. 22(2), the public body then must consider all relevant circumstances in determining whether disclosure would unreasonably invade personal privacy, including the circumstances set out in s. 22(2). The relevant circumstances may or may not rebut any presumed unreasonable invasion of privacy under s. 22(3) or lead to the conclusion that disclosure would not otherwise cause an unreasonable invasion of personal privacy.
[25] …There is no basis in the Act for a zone or cloak of confidentiality. The question of whether information can or must be withheld from investigation-related records must be addressed on an exception-by-exception basis in the circumstances of each case. The sensitivity of workplace complaint investigations can be an appropriate contextual factor in such cases, but the same rules under the Act apply to such materials as apply to personal information in other records.
The facts of this case favoured the applicant, who received nearly all the records requested, including, amongst other things, the information that identified the third party, because the applicant already knew that information, and disclosure to the applicant of the third part’s identifying information would not, even in association with the applicant’s allegations, be an unreasonable invasion of the third party’s personal privacy.[7]
II. Correction of Records
A. VPD and the Office of the Information and Privacy Commissioner (“OIPC”)
To request correction or annotation of your provincial police file, you must first formally request, under section 29 of the FIPPA, that the VPD carry out the correction or annotation. If the request is refused or unsatisfactory, you proceed to the OIPC. Any complaints with respect to the VPD’s release of information must be made to the OIPC.
The first step in the OIPC complaint process is the required attempts to resolve the complaint with the responsible public body prior to contacting the OIPC. This means that you must:
- submit a written complaint to the VPD after reviewing the contents of the released information;
- that written complaint must be as detailed as possible, and must include arguments or reasons for believing that the VPD has violated FIPPA; and
- allow them 30 more days to respond to this complaint.
Note that these conditions are in addition to first asking the VPD to correct or annotate your records.
Should there be no response to the written complaints, then you proceed with a complaint to the OIPC. This time, the complaint has to be succinctly stated, and copies of the original complaint to the VPD and any response received must be appended. Upon review by a case review officer, your complaint will go to an investigator, who will attempt resolution of the matter and will make a finding on the complaint’s merits. If there is no resolution, then your complaint will be referred to the adjudication division, which may proceed to written inquiry resulting in a legally binding order.
B. RCMP and the Office of the Privacy Commissioner (“OPC”)
Any complaints respecting the RCMP’s release of records must be addressed in writing to the OPC. Once you have received and reviewed the records held by the RCMP, you have to specifically ask the RCMP to correct the coding error, or alternatively, request to have your personal information so annotated. If they refuse to do correct or annotate as requested, then the next step is to file a “Record Correction Form” with the RCMP ATIP Coordinator. Subject to the response, you file, either online or in paper, a complaint with the OPC to request the correction. The OPC has a flexible approach to complaints: they may either pursue an early resolution process, if suitable, or conduct a standard investigation, which will culminate in a Report of Findings addressing the specific corrections.
Understand, however, that the OPC does not have the power to force the RCMP to correct the records, and judicial review of the OPC decision is limited to instances involving denial of access to personal information.
[1] Freedom of Information and Protection of Privacy Act, [RSBC 1996] Chapter 165 (the “FIPPA”).
[2] FIPPA, section 7(1), and OIPC Order 03-32 at para 16.
[3] Privacy Act (R.S.C., 1985, c. P-21).
[4] Access to Information Act (R.S.C., 1985, c. A-1).
[5] Order 01-53, [2001] B.C.I.P.C.D. No. 56 (the “Order 01-53”).
[6] FIPPA, section 22.
[7] Order 01-53 at para 82.