Canada: Why is FOI so Hard?

Last Updated: August 11 2010
Article by Dianne Saxe

Freedom of information (FOI) laws are important, in that they are supposed to provide citizens with access to information that is under the control of government institutions. However, the FOI request process is cumbersome and confusing, and many requests are rejected with little or no explanation. In Canada, the Access to Information Act applies to federal government institutions, and each province has its own FOI statute(s), all of which operate in a similar manner. In Ontario, for example, there are separate laws for information held by provincial institutions (e.g., ministries, agencies, boards, commissions and universities) and municipal ones (e.g., municipalities, police services boards, school boards, conservation authorities, health boards). We will use Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) to highlight concerns with the FOI process, in particular in light of a recent Supreme Court of Canada (SCC) decision relevant to the issue.

The FOI request process

Making an FOI request sounds easy: a written request (made on the prescribed government form) along with a fee must be sent to the government institution that likely has the records sought. It is acceptable to attach a letter to the FOI request form that sets out the request in as much detail as possible, to avoid misinterpretation and omission of relevant documents. It is wise to file FOI requests with all government institutions that may have relevant information (e.g., environmental material may be held by the Ministry of the Environment (MOE), city, regional municipality, certain boards). Of note, information may be in various forms, and includes documents, computer files, photographs, films, videotapes and sound recordings.

Generally, the institution must respond to the FOI request within 30 days, but an extension may apply where the request is for a large number of records or consultations with external persons are required to comply with the request. There are also other ways in which the process can be delayed. For example, some requests are subject to third party notification, and party may object to information being disclosed. As well, in some cases, the institution requires further applications; recently, we made an FOI request for environmental records relating to a defined geographical area, and the MOE responded that we must submit a separate FOI request form plus fee for each of the many street addresses within the area of interest.

If the request is refused, the requester may appeal within 30 days to the Information and Privacy Commissioner, who is appointed by the legislature but is independent of the government. This may be a wise option, as the government institution may simply reject a request by reciting the clause number of the FIPPA exemption, without providing reasons. Details concerning the basis for the rejection will be clarified on appeal.

If the request is accepted, the requester will be provided with an estimate of the fee to cover costs associated with locating, retrieving and copying the records. This can be high, for example if a lot of time must be spent to review the documents or if hundreds of pages are involved. The requester may opt not to proceed, to narrow the scope of the search, or to request a review of the fee amount.

In 2009, of the 10,240 general information requests received by provincial government organizations, the Ministry of the Environment received the most of any provincial institution, 4944 requests. (see attached Commissioner's report at 10-11)

Exemptions

Exemptions under FIPPA limit or prevent disclosure of certain information. Where only part of a document is exempted from disclosure, the remainder of the record must be disclosed. Exemptions include Cabinet records; advice to governments (e.g., by public servants, consultants or others); law enforcement records; defence records; third party information (e.g., trade secret, scientific, technical or labour relations information); information relating to Ontario's economic and other interests; records that are subject to solicitor-client privilege; records that, if disclosed, could threaten an individual's safety or health; personal information; records that put species at risk; and information that is already or soon to become publicly available.

FIPPA contains an override provision that mandates disclosure of records if there is a compelling public interest to do so. However, this provision doe not apply to all exemption categories, for example, to records subject to solicitor-client privilege and law enforcement privilege.

A recent SCC decision in Criminal Lawyers' Assn. v. Ontario (Ministry of Public Safety & Security) is important as it recognized a limited Charter right to access government information. A lower court judge stayed murder charges relating to a 1983 mob killing because of abusive conduct by the police and Crown attorney. The Ontario Provincial Police (OPP) investigated the conduct of the officials and exonerated them, without explaining why the misconduct found by the judge did not attract criminal charges. The Criminal Lawyers' Association (CLA) requested disclosure of the OPP investigation report under FIPPA. The Minister refused, claiming exemptions that included solicitor-client and law enforcement privilege, among others, although he failed to explain how these exemptions applied. The Assistant Information and Privacy Commissioner reviewed and upheld the Minister's decision with respect to these two claimed exemptions, which were not subject to the FIPPA override.

The CLA argued that freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms would be breached unless the documents were released under FIPPA's public interest override provision. The Divisional Court upheld the Minister's decision and found that the FIPPA exemption scheme did not violate freedom of expression; the Court of Appeal disagreed and held that the scheme violated the Charter.

The SCC overturned the Court of Appeal decision, ruling that the Charter guarantee of freedom of expression does not extend to access to all information held by the government. Access to such documents is constitutionally protected only where it is necessary to permit meaningful discussion on a matter of public importance, does not encroach on protected privileges (e.g., solicitor-client or law enforcement privilege) and is compatible with the function of the institution (e.g., Ministry) concerned. Unfortunately, the Court did not clarify what "meaningful discussion" means.

The SCC upheld the Commissioner's decision on the solicitor-client privilege claim. However, it noted that the absence of reasons and failure by the Minister to order disclosure of any part of the "voluminous documents" sought by the CLA raised concerns that should have been investigated by the Commissioner; accordingly, it sent the matter back to the Commissioner for reconsideration of the decision relating to the law enforcement exemption.

The SCC decision should serve as a warning to government officials that merely refusing an FOI request without providing the rationale behind the refusal is no longer appropriate. Nor is withholding an entire document where only portions are exempted from disclosure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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