Severing Email Records
My office released a blog in June of 2017 regarding the obligation under section 8 of The Freedom of Information and Protection of Privacy Act (FOIP) and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) and section 38(2) of The Health Information Protection Act (HIPA) to release as much information in a record as can be reasonably severed without disclosing the exempt information.
The advice provided in that blog continues to apply today – public bodies and trustees cannot apply an exemption to an entire page or record just because some or most of the information in the record is exempt. To comply with FOIP, LA FOIP and HIPA, public bodies and trustees need to conduct a line-by-line review of each page and only withhold information that is subject to an exemption. This basic rule applies regardless of the exemption that may be found to apply – mandatory or discretionary – and includes records that may be subject to solicitor-client privilege.
For email records, this means that a public body or trustee needs to consider if the ‘header’ (that is: the to, from, cc, bcc, date and subject line), signature blocks (name and contact details of the sender), confidentiality statements, and opening and closing statements of the email are exempt. If the public body or trustee claims that any of this information is exempt, it will be required to demonstrate that the exemption applies to this type of information if the applicant requests a review by my office.
For examples of recent reports where the Commissioner recommended release of this type of information in email records, see Review Reports 026-2019, and 188-2022. For more information about the obligation to sever and the application of exemptions, please see IPC Guide to FOIP, Chapter 3 and Chapter 4, and the IPC Guide to LA FOIP, Chapter 3 and Chapter 4. Our Modern Age Severing Webinar may also be of interest. It provides guidance on how to sever information from responsive records easily and electronically.