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Absurd Results: Part II

July 5, 2022 - Sharon Young, Analyst

In 2017, the Commissioner posted a blog entry about absurd results. He provided examples of absurd results that can be reached when interpreting and applying The Freedom of Information and Protection of Privacy Act (FOIP), The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP), and The Health Information Protection Act (HIPA). He emphasized that public bodies take a liberal approach to these three statutes and provide as much of the record(s) to applicants as is possible.

Since 2017, my office has dealt with more reviews that involve absurd results. Therefore, in this blog, I’m revisiting this topic once again.

When an individual submits an access request to a public body, that individual would be denied access to the personal information of others. In Saskatchewan, government institutions would deny access to third parties’ personal information pursuant to section 29(1) of FOIP. Local authorities would deny access to third parties’ personal information pursuant to section 28(1) of LA FOIP. That is, the application of section 29(1) of FOIP and section 28(1) of LA FOIP to third party personal information is meant to prevent the unauthorized disclosure of personal information, which is one of the purposes of FOIP and LA FOIP.

However, what happens when Person A provides information about other individuals to a public body? An example is when an individual provides a witness statement to a police service about a matter they had witnessed involving other individuals. If Person A submitted an access to information request to the police service for the witness statement containing other individuals’ information, would Person A be denied access to the witness statement?

An “absurd result” occurs when a public body applies an exemption to withhold records that contradicts the purpose of the legislation. Using the example described above, Person A originally supplied the third party personal information to the police service. it would be an “absurd result” to withhold the information from Person A pursuant to either section 29(1) of FOIP or section 28(1) of LA FOIP.

In my office’s Review Report 215-2020, the Commissioner discussed a matter where the local authority withheld portions of emails that the Applicant had originally supplied to the local authority. The Commissioner found it would be an absurd result to withhold portions of these emails from the Applicant even if the emails contained the personal information of third parties. The Commissioner recommended the release of the records in their entirety to the Applicant.

Also in Review Report 215-2020, the Commissioner cited a decision by the Office of the Ontario Information and Privacy Commissioner (ON IPC) that noted two other circumstances in which the ON IPC found the absurd result principle to have applied: 1) where the requester was present when the information was presented to the public body, and 2) where the information is clearly within the requester’s knowledge.

When determining if exemptions set out in Parts III and IV of FOIP and LA FOIP apply to a record, government institutions and local authorities should consider whether applying the exemption to a record would manifest in an absurd result. If so, then perhaps the government institution or local authority should consider releasing the record to the applicant.

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