Information and Privacy Commissioner Withdraws Legal Action Against Toronto Police

 New Police Procedure Prevents Attempted Suicide-Related Information
From Being Shared with US Border Officials, Satisfying Commissioner’s Concerns

TORONTO, ON (July 12, 2016) – The Information and Privacy Commissioner (IPC), the Toronto Police Service (TPS) and the Toronto Police Services Board have ended legal action between their organizations after new police procedures, developed in collaboration with the IPC, were put in place to better protect the privacy of Ontarians who have had information related to attempted suicide collected by the Canadian Police Information Centre (CPIC).

The new measures will restrict the disclosure of attempted suicide-related information to U.S. Customs and Border Protection, allow for time-limited public safety disclosures to police in Canada, and provide affected individuals with a right to seek early removal from CPIC.

In 2014, the IPC filed an Application for Judicial Review with the Ontario Superior Court, requesting an order to stop the broad disclosure of suicide-related information to U.S. agencies via the CPIC database.  The IPC had previously called for all Ontario police services to restrict CPIC disclosures under the Mental Health Disclosure Test (MHDT), set out in the special investigation report: Crossing the Line: The Indiscriminate Disclosure of Attempted Suicide Information to U.S. Border Officials via CPIC.

In response, the TPS worked with the RCMP to create a new mechanism allowing all police services to suppress suicide-related entries from being accessed by U.S. CPIC users.  Subsequent dialogue between the IPC and the TPS led to additional changes to its “Attempt and Threaten Suicide Procedure.” Under the new TPS procedure:

• Disclosure to U.S. CPIC users is restricted to entries that meet the MHDT.
• The TPS’ flagging system more clearly differentiates between suicide attempts and threats that include harm to others and those that do not.
• All suicide-related entries are subject to a default rule requiring their removal from CPIC after two years (if no other attempt or threat has been made).
• The TPS will continue to conduct periodic audits of its suicide-related entries.
• Suicide-related information may be disclosed to police in Canada if the MHDT is met, or if it relates to an apprehension by the TPS under the Mental Health Act, and one of its officers confirms that the individual was involuntarily admitted to a psychiatric facility by a physician under a “Form 1.”

The TPS has also created a process that provides members of the public with the right to learn about and request the removal of a suicide-related CPIC entry. Requesters can submit relevant information for review by senior TPS staff and will receive a decision in writing (with reasons if their request for removal is denied).

Commissioner Beamish described the new approach as a privacy compliant model for police across Ontario. “By working collaboratively, the IPC and the TPS have been able to address privacy and public safety. Input from police, privacy, mental health and human rights stakeholders made all the difference. I recommend that other Ontario police services incorporate the new safeguards into their suicide-related CPIC disclosure procedures.”
~ Brian Beamish, Information and Privacy Commissioner of Ontario

“This is an excellent example of a truly collaborative partnership between the Toronto Police Service and the Information and Privacy Commissioner to respond, meaningfully, to genuine concerns about privacy and public safety. I thank the Information and Privacy Commissioner for all his assistance. I would also like to thank the RCMP, whose prompt, thorough response, sensitive to privacy issues, helped make this agreement possible.”
~ Deputy Chief Mike Federico, Toronto Police Service

“I applaud the collaborative work of the IPC and the Toronto Police Service in reaching a resolution that balances public safety with individuals’ privacy rights in an important and sensitive issue of public interest.”
~ Andy Pringle, Chair, Toronto Police Services Board

Backgrounder
TPS Attempt and Threaten Suicide Procedure

IPC Background:
The IPC initiated an investigation upon hearing a number of stories of Ontarians being denied entry into the United States, apparently on the basis of their mental health history.  This information was found to be recorded by police services and uploaded into the Canadian Police Information Centre (CPIC) database. Maintained by the Royal Canadian Mounted Police (RCMP), CPIC contains extensive law enforcement and public safety information. It is available to Canadian law enforcement agencies and to U.S. border officials through an information-sharing agreement with the U.S Federal Bureau of Investigation. The IPC’s findings were published in the special investigation report: Crossing the Line: The Indiscriminate Disclosure of Attempted Suicide Information to U.S. Border Officials via CPIC.  The IPC developed the Mental Health Disclosure Test (MHDT), and in its report, recommended the test be used before sharing this sensitive information. By following the criteria of this test, attempted suicide information is only shared in limited and justifiable circumstances. The new Toronto Police Service procedure follows the MHDT before sharing information with U.S. border officials.

Controlling Access by U.S. CPIC Users 

• Working with the RCMP, the TPS assisted in establishing a new CPIC
  mechanism, allowing all police services to prevent suicide-related
  entries from being routinely accessed by U.S. CPIC users.
• Disclosure to U.S. CPIC users is restricted to entries that meet one of
  the following four suicide-related criteria:
  1. the suicide attempt involved the threat of serious violence or
     harm, or the actual use of serious violence or harm, directed
     at other individuals;
  2. the suicide attempt could reasonably be considered to be an
     intentional provocation of lethal response by the police;
  3. the individual involved had a history of serious violence or
     harm to others; or
  4. the suicide attempt occurred while the individual was in
     police custody.
• Only entries that meet one of the above four criteria
  are accessible to U.S. CPIC users.
• The TPS suppresses all other suicide-related entries from
  disclosure to the U.S.
• U.S. CPIC users cannot use the CPIC system to learn that
  an entry has been suppressed.

Controlling Access to Canadian CPIC Users 

• In addition to the four criteria above, the following, additional
  suicide-related criterion is used by the TPS to facilitate disclosure
  to Canadian CPIC users: The individual is apprehended under
  Section 17 of the Mental Health Act and a Form 1 has been
  issued allowing a patient to be held in hospital up to 72 hours
  for psychiatric assessment.
• Unless a police officer confirms that an individual has been admitted
  involuntarily, under a Form 1, no entry will be made under the fifth
  criterion.

Controlling Access to All CPIC Users 

• A suicide-related entry is only created after its Records
  Management Services Operations Group Leader has
  confirmed that it falls within the criteria.
• Entry procedures have been modified to more clearly differentiate
  between suicide attempts and threats that include harm to others.
• A default rule has been established, requiring the removal of all of
  its suicide-related entries after two years. If there is a subsequent
  suicide-related attempt or threat that satisfies one of the TPS’s five
  criteria, the entry will be renewed for another two years.
• As a result of an audit of all of its suicide-related entries, 9,766 of
  15,180 entries were removed from CPIC. The TPS continues to
  conduct periodic audits of its existing suicide-related entries to
  ensure that staff are correctly applying entry and suppression
  criteria, and that retention limitations are followed.
• The TPS has also improved its CPIC removal procedure. Now,
  members of the public have a right to:
  • ask for and receive written confirmation as to whether they currently have a suicide-related entry on CPIC;
  • apply for removal of such an entry, to a three-member reconsideration panel composed of senior TPS staff, at any time;
  • submit any relevant information to the panel;
  • be notified of the panel’s decision in writing; and
  • where the panel refuses a request for removal, receive written reasons for the refusal, based on the relevant information and the stated criteria.
• For further information, visit: www.torontopolice.on.ca/recordsmanagement/mha_info_cpic.php.