What is evidence in a review?
Simply saying something is true doesn’t always make it so. For example, telling me a particular store is closed on a given holiday won’t necessarily make me believe it is. Showing me the store’s website holiday schedule is likely to make me believe it a bit more. Driving me by the store on Christmas day and showing me its doors are locked will convince me.
What does this have to do with evidence? In the access and privacy world, evidence supports your positions in meeting the burden of proof, which is placed on the head of a government institution pursuant to section 61 of FOIP or a local authority pursuant to section 51 of LA FOIP or a trustee pursuant to section 47 of HIPA. Chapter 2 of the IPC Guide to FOIP and Chapter 2 of the IPC Guide to LA FOIP define “burden of proof” as the “obligation of one of the parties in a review to persuade the Commissioner to decide an issue in its favour”. The IPC Guide to HIPA’s definition is similar.
When the Commissioner considers if a public body or trustee has met its burden of proof, he does so based on a balance of probabilities or preponderance of the evidence. Under a review and after considering a public body’s or trustee’s arguments, the Commissioner needs to be able to say, “I think it is more likely, or more probable, than not” that whatever is being argued is the case (Guide to FOIP, p. 41). For example, when the Commissioner considers if a public body has met its burden of proof with respect to Part III of FOIP or LA FOIP, the starting point is considering the tests the IPC has laid out in Chapter 4 of the IPC Guide to FOIP and Chapter 4 of the IPC Guide to LA FOIP. In applying these tests, the Commissioner considers the arguments or assertions the public body makes in defending its application of the exemptions at issue, and also any supporting evidence the public body or trustee provides to bolster its positions or assertions.
Chapter 2 of the IPC Guide to FOIP, Chapter 2 of the IPC Guide to LA FOIP, the IPC Guide to HIPA and Part III of IPC’s A Guide to Submissions all cover the topic of evidence and making your case. The Commissioner has also covered the topic of providing evidence in various reports, including Review Report 205-2019, 255-2019 concerning the Rural Municipality of Sherwood. Regarding the topic of evidence, the Commissioner had this to say at paragraphs 130 to 132:
[130] Evidence is the material that parties must submit in reviews/investigations to establish the facts on which they are relying. Arguments are the reasons why a party thinks that the evidence shows certain facts to be true, or why the Commissioner should interpret the law in a particular way, so as to make the decision that the party wants the Commissioner to make.
[131] Parties may not succeed in a review if they do not provide evidence to support their arguments. If the success of an argument depends on underlying facts, providing the argument alone is not sufficient. Examples of evidence include affidavits, expert reports, news articles, meeting minutes, policy documents or contracts. In a review, the records at issue are treated as evidence. Although news articles are not generally thought of as reliable evidence, they may be relevant in cases such as where a party is trying to demonstrate that something is publicly available, or where personal information has been disclosed without authority.
[132] It would not be sufficient to provide my office with records and leave it up to my office to draw from the records the facts on which the decisions will be based. In addition, it would not be sufficient to simply state “access is denied because of section 18.” It is up to the local authority to ‘make the case’ that a particular exemption applies. That means presenting reasons why the exemption is appropriate for the part of the record that has been withheld. This is usually done in the form of written representations, commonly called a submission.
Further to this, in Eaton v University of Regina, 2019 SKQB 127, the court considered if the public is entitled to know who funds research conducted at a public university and who receives the funding. In their analysis, Justice McCreary stated the University of Regina could use hypothetical examples to support an argument, but that their examples needed to be backed by facts rather than speculation or opinion. Such facts could be established in other materials. In other words, examples may provide perspective on a matter or help someone visualize what you mean, but you still need to back up your examples with facts and evidence.
Also, public bodies need to understand it’s not always obvious to the IPC what a record consists of, or what harms may come from its release. For example, in Review Report 196-2020 concerning the Ministry of Highways, the Commissioner considered Highways’ assertion that releasing forecast costs in a financial table could lead individuals to know the details of a negotiation pursuant to subsection 18(1)(d) of FOIP. The Commissioner ultimately found Highways did not make its case because it failed to link the forecast costs in the table to the negotiations, which is required in order to find this subsection applies. The Commissioner added that, on the face of the record, the forecast costs did not make this link apparent, but what may have supported Highways’ assertions is if it provided the IPC with supporting documentation such as briefing notes or decision items – in other words, evidence.
Evidence, or the lack thereof, can make or break a position taken or assertion made. It can include, among others, documents such as affidavits, expert reports, meeting minutes, policy documents, briefing notes, decision items or contracts – whatever is appropriate in the circumstance to support your position. After he considers your arguments or assertions – and evidence – you want the Commissioner to be able to say, “I think it is more likely, or more probable, than not”. Because simply saying something is true doesn’t always make it so.