Elections and Responding to Access to Information Requests
In Canada, we are fortunate to live in a democratic society where citizens are able to express their wishes of who governs us through our right to vote. By living in a democratic society, citizens are able to ask questions and exercise their access to information rights to ensure elected officials and provincial and municipal governments are acting in an open, accountable and transparent manner. One tool citizens are able to utilize to exercise this right are access to information laws.
The purpose of access to information laws was eloquently stated by Justice La Forest in the Supreme Court of Canada decision Dagg v. Canada (Minister of Finance). Justice La Forest stated, in part “the overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry” (Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 SCR 403, <https://canlii.ca/t/1fr0r>, retrieved on 2024-08-21).
As summer is coming to a close, Saskatchewan is preparing for both provincial and municipal elections this fall. With election season upon us, it is a good time to remind everyone about their obligations under The Freedom of Information and Protection of Privacy Act (FOIP) and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP). This includes the importance of responding to access to information requests during election periods.
Public body employees may be nervous when responding to access to information requests during the election period, especially requests that may relate to hot topic or controversial issues. Our office also recognizes there are specific communication directives during the election period that employees must follow. However, during an election, your obligations under FOIP and LA FOIP do not change.
Public bodies must respond to formal access to information requests during an election as they would any other time during the year. This means, you must respond to the request, in writing, within 30 days of receiving the request. You may extend the response time an additional 30 days only if a limited and specific circumstance exists as provided for in section 12 of FOIP and section 12 of LA FOIP. However, it is important to note that one of the reasons to extend a response time does not include a provision that covers elections.
I would also like to mention that when an applicant makes an access to information request and does not receive a response to the request in the legislated timelines, my office expedites requests for review on late responses/deemed refusal cases. We have established this process so we can work with public bodies to get a section 7 decision to the applicant as quickly as possible in order to decrease the chance that the file will need to proceed to a formal review. For more about this process, please see Part 2.1: Priority Procedure on Reviews of Failure to Provide a Section 7 Decision in my office’s Rules of Procedure. In short, if an applicant submits as access to information request and does not receive a response in 30 days, on day 31 they have a right to request a review by my office.
I would also like to touch on delegation of powers under FOIP and LA FOIP. In a provincial government institution, the Minister is the designated Head under FOIP. In a municipality, the Mayor of the Town or City and the Reeve of the Rural Municipality is the designated Head under LA FOIP. During an election period, if the duties of the Head have not already been delegated to an official within the public body who is not an elected official, the Head may consider delegating those powers to a non-elected official. Some common positions my office sees with delegated powers under FOIP and LA FOIP are Access to Information Officers, City Clerks and Administrators of Towns and RMs. By taking this step, decisions regarding access to information are being made by a delegated official – not an elected official – and helps to remove perceived political bias from the decision-making process.
If the Head decides to delegate powers imposed under FOIP / LA FOIP, this does not mean the Head no longer has decision making powers. It means that the Head is giving another official the ability to make decisions under FOIP / LA FOIP. For more on delegation of powers, Chapter 2 of my office’s Guide to FOIP and Chapter 2 of my office’s Guide to LA FOIP.
For further background, please see Review Report 064-2016 to 076-2016 where the Information and Privacy Commissioner, in part, looked at the issue of responding to access to information requests during an election.
To close, as you enter the election season, my office would suggest having internal conversations about FOIP and LA FOIP and your obligations to respond to access to information requests. That way, if you receive a request during the election period, everyone is on the same page, and you can continue with business as usual as it relates to your FOIP and LA FOIP obligations.