Absurd Results

July 27, 2017 - 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 section 29. That is an absurd result when the public body is refusing to give the applicant his or her own personal information (unless there is an exemption).

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 book.  Also it is understandable if the document is on the public body’s website or another website.  I would suggest in these instances that the public body either copy the document or advise the applicant where he or she can find the document. Advising the citizen of the URL for the document is just a helpful thing to do.

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, he or she 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 includes 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, 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 Review Report 044-2017 and Review Report 059-2017 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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