Tips for a Good Submission
I have worked at the IPC for the past 5 1⁄2 years and I am leaving for an exciting opportunity in the Ministry of Justice. As I reflect on my years at the IPC, I wondered how I could help those who work in this area. I have seen a lot of submissions and I thought some tips on what, in my view, made a persuasive submission would be helpful.
A submission contains a party’s arguments in support of their position. For public bodies or third parties, depending on the nature of the case, this often means arguments for why particular exemptions apply. For applicants, it means arguments for why information should be released and why particular exemptions do not apply. Here are some tips and things to avoid.
When drafting your submission, our office encourages parties to rely on its resource called the IPC Guide to Exemptions (the Guide). The Guide lays out all of the exemptions under Parts III 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) along with the tests our office relies on when determining whether an exemption applies. These tests reflect the precedence set by the current and former Information and Privacy Commissioners in Saskatchewan, Commissioners in other jurisdictions and court decisions from across Canada. We use these tests in our reviews.
A persuasive submission should have just enough information to support your position but not more than what is needed. It should have the following four things for each exemption relied on:
- List the exemption that has been applied;
- List the page numbers that it applies to (group pages if the records are similar);
- Reproduce the test from the Guide for that exemption; and
- Lay-out your arguments for each part of the test (make sure to tie it to the information in the record).
Things to Avoid
- Avoid just stating “yes” to the test questions in the Guide;
- Avoid citing court cases and/or orders from other jurisdictions unless necessary (e.g. if diverging from test in the Guide or no test is available);
- If citing court cases and/or orders from other jurisdictions, simply provide the URL. No hard copies are required;
- If providing supporting documentation (e.g. court cases or evidence) explain in the submission how it supports your position (i.e. tie it into your arguments);
- Avoid just restating the exemption as an argument;
- Ensure that your submission matches your Index of Records and the record itself (i.e. page numbers and exemptions relied on);
- Make sure you explain sufficiently how the information meets the test threshold (e.g. explain the ‘harm’ that you foresee in detail for harms based exemptions); and
- Avoid arguments that go beyond what is contemplated by the exemption (e.g. public interest override arguments when it’s not part of exemption).
For more assistance on preparing your submission, Index of Records and/or the record itself, you can refer to our resource, What to Expect During a Review with the IPC: A Resource for Public Bodies and Trustees. Pages 4 through 6 provide guidance on preparing materials for the OIPC. Here is a link to the resource: https://oipc.sk.ca/assets/hipa-investigation-142-2015.pdf
Now, when I am at the Ministry of Justice, I wonder if I will be able to take my own advice and give the OIPC persuasive and compelling submissions.