The appellant, a lawyer, made a request to the Ministry of the Solicitor General for records of calibration tests performed on a specific breathalyzer used by a detachment of the Ontario Provincial Police over a two-month period. The appellant was asking for results of periodic “standalone” tests conducted on the equipment to determine if it was in proper working order and not any tests conducted on actual breath samples. As the appellant would not confirm whether the requested records related to an ongoing prosecution, the ministry assumed the records related to a prosecution for an alcohol related offence under the Criminal Code and issued a decision denying access. The ministry maintained that the Criminal Code provides a complete code for disclosing records relating to breathalyzer equipment. Consequently, the ministry claimed that the doctrine of federal paramountcy applies to oust the application of the Freedom of Information and Protection of Privacy Act (the Act).
During the inquiry into the appeal, the possible application of section 65(5.2) of the Act that excludes records relating to an ongoing prosecution was added as an issue to be determined.
In this order, the Commissioner finds that there is no direct conflict in the operation of the Act and the Criminal Code and that the operation of the Act does not frustrate the legislative intent of the Crown disclosure provisions of the Criminal Code. As a result, the doctrine of federal paramountcy does not apply to oust the application of the Act.
However, the Commissioner finds that the records are excluded from the scope of the Act under section 65(5.2). The right of access and the Commissioner’s jurisdiction under the Act are determined based on the facts and law existing at the time the institution issues its decision. Given that the requested records related to a prosecution that was ongoing at the time of the ministry’s decision, the exclusion at section 65(5.2) of the Act applied and the appellant did not have a right to access them. The Commissioner upholds the ministry’s decision denying access and dismisses the appeal.