Freedom Of Information requests - important, but not always easy
Some government institutions are becoming more open about
sharing information with the public. For example, Ontario's
Ministry of the Environment (MOE) recently posted all recent
air, sewage and waste certificates of approval (permits) and
renewable energy approvals on-line.
However, governments often resist releasing information.
Freedom of information (FOI) laws provide individuals with a way
to access information that governments control. Although
the FOI request process may be cumbersome and time-consuming, it
is worthwhile to persevere, as it may yield a wealth of
information.
FOI laws at different government levels
Canada's Access to Information Act applies to federal government
institutions, and each province has its own FOI law(s), which
operate in a similar manner. In Ontario, for example,
there are separate laws for accessing information held by
provincial institutions (e.g., ministries, agencies,
boards, commissions and universities) and municipal ones (e.g.,
municipalities, conservation authorities, health boards).
The FOI request process
To make an FOI request, send a written request along with an
application fee to the government institution that likely has
the records of interest. Records come in many forms, such
as documents, computer files and photos. Include as much
detail as possible about the records being sought, to ensure
that the scope of the request is clear. Where more than one
institution may have relevant information, it is wise to file
FOI requests with each of these.
Generally, the institution must respond to the FOI request
within 30 days, although this period may be extended. The
process can also be delayed, for example, where the government
must notify another party about the request, and that party
objects to disclosure of the information.
If the request is denied, written reasons must be provided, but
these usually do not include a detailed explanation. It is
important to follow up with the government institution for
additional details. The requester may appeal to the
Information and Privacy Commissioner, who is appointed by the
legislature but is independent of the government.
If the request is accepted, the government will provide 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 is needed 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.
Exemptions to disclosure
There needs to be a reasonable balance between information that
is publicly available and that which should not be disclosed,
but the distinction is not always clear. There are many
categories of exemptions under FOI laws that limit disclosure of
information. For example, mandatory exemptions in
Ontario's Freedom of Information and Protection of Privacy Act
(FIPPA) include Cabinet records and personal information about
others. Discretionary exemptions permit the government
organization to decide whether to disclose information, and
include advice or recommendations provided to governments by
public servants or consultants, law enforcement records,
confidential third party information (e.g., trade secrets), and
records that are subject to solicitor-client privilege.
However, where the compelling public interest favours disclosing
a record, an "override" provision under FIPPA is triggered.
This applies to many, but not all, exemption categories.
Recent Supreme Court decision
A recent Supreme Court of Canada (SCC) decision, Ontario (Public
Safety and Security) v. Criminal Lawyers' Association,
considered whether exemptions that were not subject to this
override provision breached the Canadian Charter of Rights and
Freedoms. In that case, the Criminal Lawyers' Association
(CLA) requested disclosure of a police investigation report and
related documents concerning the conduct of officials in a
murder case. The government Minister refused the request,
claiming the solicitor-client and law enforcement privilege
exemptions, without explaining how these applied. His
decision was upheld by the Assistant Information and Privacy
Commissioner. The CLA argued that freedom of expression as
guaranteed by the Charter would be breached unless the documents
were released under the public interest override provision.
The SCC ruled 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 necessary to permit
meaningful discussion on matters of public importance, where
access does not does not encroach on protected privileges (e.g.,
solicitor-client or law enforcement privilege) and where it does
not impair the functioning of government institutions.
Documents dealing with solicitor-client privilege continue to be
exempted from disclosure. However, the court asked the
Commissioner to reconsider the law enforcement exemption
decision. It noted that the Minister had not provided
reasons for denying the request, and had not disclosed any part
of the "voluminous documents" the CLA sought, raising concerns
that should have been investigated by the Commissioner.
The SCC decision is important because it recognizes a limited
Charter right to access government information. This
strengthens the FOI process, and reminds us of its complexity.
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