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Absurd Results (updated)

September 21, 2023 - Ron Kruzeniski, Information and Privacy Commissioner

From time to time, when interpreting and applying legislation, one can end up with a result that will be absurd. This can happen from time to time with The Freedom of Information and Protection of Privacy Act (FOIP), The Local Authority Freedom of Information and Protection of Privacy Act (LAFOIP) or The Health Information Protection Act (HIPA). These statutes are to be liberally interpreted and through court decision have been given a quasi-constitutional status. Because they are to be liberally interpreted, absurd results should be at a minimum, but in the application of the legislation to particular access requests, sometimes absurd conclusions can be reached.

For example, an applicant (citizen) applies for records and the request is denied, or part of the record is severed, because it is personal information. Section 29 of FOIP, section 28 of LA FOIP and section 27 of HIPA provide that personal information is not to be released except with consent (there are exceptions). So, a public body could say they won’t release the applicant’s personal information because of subsection 29(1) of FOIP. That is an absurd result when the public body is refusing to give the applicant their own personal information (unless there is another exemption that applies).

Another example is where a public body refuses to provide a document that is already public. If the request is for a book, then it is understandable that the public body does not want to photocopy the entire book but is not a legitimate reason not to provide. I would suggest in the instances where the document is on a website, that the public body either copy the document or advise the applicant where they can find the document. Advising the citizen/applicant of the URL for the document is just a helpful thing to do and if a formal access to information request is made, referring the applicant to the publication is required pursuant to subsection 7(2)(b) of FOIP/LA FOIP.

Another example is where a public body believes part of a document is non-responsive to the access request, but other parts of the document are responsive (relevant) to the request. A public body might decide to sever the non-responsive portion. This is a bit of a waste of time. The applicant has the right under section 5 of FOIP, section 5 of LAFOIP or section 12 of HIPA to any record the public body has (subject to exemptions).  If the applicant becomes suspicious because of the severing, they could submit a second access request and be entitled to the portion considered non-responsive (subject to exemptions). Why make citizens jump through unnecessary hoops to get to what they are otherwise entitled to get?

A final example is where an applicant has submitted something like a letter to a public body. Usually, the letters include complaints about someone else which is technically the other person’s personal information, so a public body often withholds the letter as personal information of a third party. The problem is the applicant provided the information to the public body thus, the applicant is already aware of it. In this instance, the public body should release the letter to the applicant because the applicant has previously provided it. See my office’s Review Report 155-2022 and Review Report 254-2022 where the applicant provided information to the police and participated in interviews with the police.

So, I would ask public bodies to take a liberal approach to these three statutes and if specific exemptions do not apply, to provide as much of the records as is possible. Such an approach will reduce frustration of applicants and increase trust in the public body that is trying to do the right thing and help citizens.

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