When responding to access to information requests under The Freedom of Information and Protection of Privacy Act (FOIP), The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) and The Health Information Protection Act (HIPA), there may be circumstances where information is exempt from release under mandatory or discretionary exemptions. However, each of these statutes requires public bodies to release as much information as possible when responding to requests and this is done through severing.
Section 8 of both FOIP and LA FOIP provide:
8 Where a record contains information to which an applicant is refused access, the head shall give access to as much on the record as can be reasonably be severed without disclosing the information to which the applicant is refused access.
Subsection 38(2) of HIPA has similar language.
Severing is the exercise by which portions of a document are blacked out before the document is provided to an Applicant. It is also considered severing where a responsive record is withheld in full. In order to be compliant with section 8 of FOIP/LA FOIP and subsection 38(2) of HIPA, public bodies need to conduct a line-by-line review of each page and apply severing where appropriate. In addition, each severed item should have a notation indicating which exemption(s) applies in each instance. It must be clear to the Applicant as to what exemption(s) is being relied upon for each item that is severed.
It is important that public bodies not apply a blanket exemption(s) to an entire page or record just because the majority of the information contained on that page is exempt from release. A great example is an email chain. A communication may almost fully be exempt from release. However, if a public body is severing the header information (to, from, cc, date, and subject), opening and closing sentences, signature lines, etc., it needs to demonstrate how the exemption applies to that information also.
Going forward, our office will be adding additional language to its notification emails asking public bodies to address how it met its obligations under section 8 of FOIP, section 8 of LA FOIP, or subsection 38(2) of HIPA. Further, if it is apparent that the public body withheld a record in full by applying an exemption(s) to all of its contents, we could be recommending the public body conduct a line-by-line review and release as much as possible to the Applicant.
We encourage you to refer to the IPC Guide to FOIP, the IPC Guide to LA FOIP and/or the IPC Guide to HIPA at the time you are processing an access to information request as these resources outline the tests you need to consider when determining if an exemption should be applied.
On a final note, if you are still severing using hard copies of documents and find this to be onerous, you may want to look into options that are available for electronic severing. Who knows, you may already have this capability with the software that is installed on your system.
To learn more about severing electronically, check out our webinar Modern Age Severing Made A Lot Easier.