Reviews for factual errors in a draft report
If the Commissioner is going to issue a report in a review or privacy investigation, he will provide the draft copy of the report to the public body’s Access and Privacy Coordinator to review for factual errors. The public body usually has seven days to review the draft report and provide its suggested corrections to the Information and Privacy Commissioner (IPC). At times, there is confusion as to what a review for factual errors entails. Though this stage of the review or investigation process may be confusing for Coordinators or public bodies, this blog will hopefully provide some clarity.
It is important that public bodies, when participating in a review or investigation by the IPC, understand the procedures the IPC will follow. These are set out in IPC’s The Rules of Procedure. The rules are set out to be as procedurally clear to all parties as possible. In general, when a review or investigation is underway, a public body is invited to make representations that set out its position with respect to the issues noted in the IPC’s notification. Representations include the arguments, documents, statements, affidavits or other evidence provided by the public body in support of its position.
After the IPC has all representations and supporting documentation from the public body in hand, it begins its analysis. The IPC may ask the public body for clarification on its representations, or may ask for additional information. What usually results is a draft report that includes analysis of the public body’s representations, as well as findings and recommendations. The opportunity to review the draft report for factual errors will occur at this stage.
Let me begin with what our office is not seeking when it asks a public body to review a draft report for factual errors. First, it is not seeking further representations from the public body on matters already raised in the public body’s representation (repetition does not assist). Second, it is not seeking arguments about the Commissioner’s approach, findings or recommendations. For example, upon review of draft Investigation Report 240-2018, the trustee objected to their name being included in the report. As such, the trustee applied to the Court of Queen’s Bench seeking an injunction on release of the report by the Commissioner. In that matter, 2019 SKQB 91, the Court dismissed the application for injunction on the basis that the Commissioner has the right to include whatever facts in a report that he deems appropriate or necessary within his statutory mandate.
What does a review for factual errors entail, then? Quite simply, it is an opportunity for a public body to provide corrections to details such as names, dates, places, page numbers, etc. These are generally details that may not change the substance of the report or the findings and recommendations, but rather ensure that such factual details are correct.
This is why public bodies need to be thoughtful and thorough in structuring their arguments at the outset. They also need to consider which documents and/or materials will support their arguments – remember, the burden of proof is on the public body to convince the Commissioner that an exemption applies, or to support its position on whichever issues are under consideration. For example, in Review Report 158-2018 concerning the University of Regina (the University), the Commissioner considered the University’s application of subsection 17(1)(f) of LA FOIP, a harms-based provision, to the release of donor information in one part of the record. The Commissioner found the University failed to successfully argue subsection 17(1)(f) of LA FOIP applied to this part of the record because evidence to support the expected harm was lacking. Although the University provided an affidavit, the Commissioner suggested that materials such as copies of donor agreements could have helped verify or support the University’s claims of expected harm. Otherwise, their claims were speculative; that is, they could be true, but they could also not be true. In a matter such as this, the consideration is what proof will push the balance of probabilities towards a successful argument, or that will move the argument past mere speculation. A public body needs to meet the burden of proof when it provides its representation and documentation and not after it receives the draft report.
The IPC publishes many resources that can help public bodies build their arguments. These include The Rules of Procedure, IPC Guide to FOIP, and A Guide to Submissions. Public bodies are also encouraged to research past decisions of the Commissioner, which can be found at the Reports section of IPC’s website. By researching past decisions, public bodies can see how successful other public bodies were at arguing their positions to the Commissioner, or where and how their arguments failed. They can also see what types of materials or information can support an argument, or clarify what is required to describe matters such as search efforts or how records are not responsive. All this will help a public body be more successful in making its case, and in not being confused on what is required when asked by the Commissioner to review a draft report for factual errors.