October 23, 2020

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Police have right to remain silent

Manitoba law enforcement agencies can refuse document requests as shield against civil suits

A loophole in Manitoba’s freedom-of-information legislation allows law enforcement officials to block the release of internal documents if they could be used to sue police agencies in civil court.

The legislative exception confounded two access-to-information scholars who spoke to the Free Press, both of whom were surprised to hear the clause — which grants police the power to withhold information from the public — existed at all.

"This particular exemption is, on its face, quite broad, and I cannot think of the policy reason behind it," said Kris Klein, an Ontario-based lawyer and leading expert on freedom of information in Canada.

A loophole in Manitoba’s freedom-of-information legislation allows law enforcement officials to block the release of internal documents if they could be used to sue police agencies in civil court.

JOHN WOODS / THE CANADIAN PRESS FILES

A loophole in Manitoba’s freedom-of-information legislation allows law enforcement officials to block the release of internal documents if they could be used to sue police agencies in civil court.

Klein said that while most provinces have disclosure exemptions for police, he’d previously been unaware of a clause in provincial legislation specifically addressing concerns of civil court liability.

Section 25-1 of Manitoba’s Freedom of Information and Protection of Privacy Act spells out various situations where the release of public records could be deemed "harmful to law enforcement or legal proceedings."

The exemptions include cases where records may hurt an ongoing investigation, endanger a police officer or help facilitate the escape of a prisoner, as examples. In such cases, police have the right to refuse to release documents to the public.

But a subsection in the legislation includes the following exemption: "Expose to civil liability the author of a law enforcement record or a person who has been quoted or paraphrased in the record."

“This particular exemption is, on its face, quite broad, and I cannot think of the policy reason behind it.” — Kris Klein, an Ontario-based lawyer and freedom of information expert

The Free Press approached the Manitoba Office of the Ombudsman, which adjudicates disputes over FIPPA requests, to confirm the clause grants the police the right to refuse access to internal documents that could expose officers to civil lawsuits.

"This exception protects law enforcement officials who might be sued as a result of disclosure of information in records made while carrying out their duties," a spokeswoman for the ombudsman said in a written statement.

"’Expose to civil liability’ means disclosure of the information could reasonably be expected to lead to a civil claim for damages."

Winnipeg Police Service spokesman Const. Rob Carver.

MIKAELA MACKENZIE / WINNIPEG FREE PRESS FILES

Winnipeg Police Service spokesman Const. Rob Carver.

The ombudsman said it does not "maintain stats on the frequency in which this section is used where a complaint was made about its use."

Winnipeg Police Service spokesman Const. Rob Carver said the police force does not track "statistics on the number of times access under FIPPA is refused for any specific section."

Kevin Walby, an associate professor and criminologist at the University of Winnipeg, said he would like to know the history behind the clause, including who advocated for its inclusion in the legislation.

"The justice implications of that small little part of the legislation are huge," said Walby, whose research has focused on, in part, the intersection of access-to-information and policing in Canada.

“I believe secrecy is foundational to police power in Canada…. This subsection is really significant in that regard. It creates conditions of secrecy and information control that will forever be in favour of the police until it is struck or amended.” — Kevin Walby, associate professor and criminologist at the University of Winnipeg

As a freedom-of-information scholar, Walby said the loophole surprises him, since advocates are often pushing for changes to legislation that lead to greater transparency. But as a policing scholar, Walby said it "doesn’t surprise me at all."

"I believe secrecy is foundational to police power in Canada…. This subsection is really significant in that regard. It creates conditions of secrecy and information control that will forever be in favour of the police until it is struck or amended," Walby said.

"This definitely deserves attention, and it’s part of a bigger discussion of information control and police. It isn’t just an abstract thing here in Manitoba. There’s been struggles between the (Independent Investigation Unit) and the WPS that have to do with information control."

In April 2019, the IIU took the Winnipeg Police Service to court to try to force the release of internal records the watchdog said were needed to probe an in-custody death. The WPS repeatedly refused to disclose the records.

This week, a judge ruled the police have to turn over the documents to the IIU.

ryan.thorpe@freepress.mb.ca

Twitter: @rk_thorpe

Ryan Thorpe

Ryan Thorpe
Reporter

Ryan Thorpe likes the pace of daily news, the feeling of a broadsheet in his hands and the stress of never-ending deadlines hanging over his head.

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