Can Public Bodies be a Third Party?
As you probably know, section 19 of The Freedom of Information and Protection of Privacy Act (FOIP) and section 18 of The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) are intended to protect the business interests of third parties and to ensure that public bodies are able to maintain the confidentiality necessary to effectively carry on business with the private sector.
A third party is defined separately in both FOIP and LA FOIP.
Subsection 2(1)(j) of FOIP provides a definition of third party as follows:
2(1) In this Act:
…
(j) “third party” means a person, including an unincorporated entity, other than an applicant or a government institution.
Subsection 2(k) of LA FOIP provides:
2 In this Act:
…
(k) “third party” means a person, including an unincorporated entity, other than an applicant or a local authority.
You will note that a government institution cannot be a third party for the purposes of FOIP and a local authority cannot be a third party for the purposes of LA FOIP.
So the question is: does this support a principle that a public body cannot qualify as third party for the purposes of access to information legislation? In other words, can a local authority be a third party for the purposes of FOIP and visa-versa?
One hint of this principle is section 13 of both FOIP and LA FOIP. These sections allow both government institutions and local authorities to withhold records obtained from both government institutions and local authorities in some cases. Further, these sections do not contemplate a formal notification process.
A former Commissioner of this office promoted this principle. In Review Report F-2012-001/LA-2012-001, he found that FOIP and LA FOIP should be read together and as such a local authority could not be a third party for the purposes of FOIP and a government institution could not be a third party for the purposes of LA FOIP. This report cited various sources to support this view.
The current Commissioner recently released Review Report 080-2018. He also agrees with this principle. However, he was not persuaded that it is supported by the wording of the current legislation. He recommended that the Minister of Justice consider an amendment to the definition of third party in both FOIP and LA FOIP that excludes both government institutions and local authorities in both Acts.
So for now, at least, a government institution can treat a local authority as a third party for the purposes of an access to information request. Also, you guessed it, a local authority can treat a government institution as a third party for the purposes of an access to information request.
Party on!