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FOI 301

How to appeal a decision

Illustration of two people, one who appears to be a judge, on a clipboard with a document with redactions
Illustration by Romain Lasser

By this point, you’ve already filed a freedom of information request and navigated the request process.

The FOI process isn’t perfect. As access laws were passed across Canada, governments recognized the need for a grievance process. What if your request was overdue? What if the documents you got back were redacted? Worse yet, what if you were told the documents you were seeking didn’t exist?

To address this, the federal and provincial governments each have their own information commissioner – theoretically an impartial third party that can weigh in on these disputes. In the provinces and territories, information commissioners are also privacy watchdogs. Federally, the roles are split between the Office of the Information Commissioner and the Office of the Privacy Commissioner.

Though their powers vary by jurisdiction, each office has an adjudicative function when it comes to FOI, receiving complaints as well as assigning mediators, investigators and adjudicators to help the requester and public body come to a resolution.

There are several reasons you may want to file an appeal:

  • Delays: Your FOI is past its legislated due date. These are often referred to as “deemed refusal” cases.

  • Extensions: The public body has claimed a time extension you feel is unreasonable.

  • Improper search: You suspect the public body did not perform a fulsome search when compiling records responsive to your request.

  • Fees: You disagree with the fee estimate provided by the public body, or their decision around a fee waiver request.

  • Record formats: The public body did not provide records in the format you specified. For instance, this could be the case if you requested an Excel spreadsheet but were instead sent a PDF version of the Excel file, which cannot be read by Excel.

  • Redactions: You disagree with the public body’s redactions for a portion or all of the records you received.

Table of contents

Filing your appeal

Start by consulting the website of the information commissioner that has jurisdiction over your FOI request. Usually, you’ll be filling out a form. Some bodies have online forms, while others want the form mailed or e-mailed. Include as much detail as you can in the form. When did you file this request? What did you ask for? What is the appeal concerning? Attach copies of all letters and e-mail correspondence with the FOI office. In Ontario, an appeal of a freedom of information request will cost you $25 (or $10, if you requested your own personal information). Appeals in all other jurisdictions are free.

Appeals body by jurisdiction

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The appeals process

After you’ve filed your appeal, expect a wait. Most appeals bodies are inundated with complaints and may be slow to assign an officer to your case.

Once the appeal has formally started, most bodies follow a two-step model. First, officers will try to mediate the dispute, arriving at a resolution for the appellant and public body. Almost all cases are resolved during mediation. Failing that, the appeal moves to a more legalistic adjudication or investigation phase, at the end of which a decision, order or set of recommendations will be issued.

In some jurisdictions, including federally, the mediation and investigation phases are run by the same person, while in others there is a strict division between mediators and adjudicators.

If your case reaches the adjudication stage, you will be asked to provide representations – effectively your argument for why the appeal is justified and the appeals body should rule in your favour. The public body will also be invited to make their own representations, which may be shared with you, depending on the information commission’s policies and governing legislation.

Once the adjudication phase is complete, the appeals body will issue a decision. In some jurisdictions, these decisions are binding to the public body. In others, the decision is only a recommendation.

If you disagree with an appeal decision, your only recourse is to take the public body to court and ask for a judicial review of the FOI and appeal decisions.

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Making your case at adjudication

The length and complexity of your representations will depend on the type of appeal you’ve filed. Here’s how one might approach each type of appeal:

  • Delays: These appeals are simplest. If your file is overdue, you simply note the file’s deadline has passed.

  • Extensions: In this case, you state why you believe a claimed extension is unreasonable.

  • Improper search: Give the adjudicator any evidence you might have that more files exist. A real-world example: Years ago, The Globe and Mail requested firearms tracing data from the Royal Canadian Mounted Police’s Canadian National Firearms Tracing Centre. The RCMP said no such information existed. After an appeal that noted the RCMP had published firearms tracing statistics – which suggest they have a database they can use to produce these kinds of numbers – the government released a spreadsheet with more than 4,000 entries.

  • Fees: With fee appeals, you may be challenging a fee estimate or waiver decision. For the former, you might point to past fee estimates from other organizations, or ask for a detailed breakdown of how the public body arrived at the estimate. In the latter case, you need to demonstrate financial hardship or show there’s an overriding public interest in the records qualifying you for a fee waiver.

  • Record formats: Explain why you wanted the record in the requested format (such as an Excel file) and refer to any sections of that jurisdiction’s freedom of information law that touch on whether the public body must release records in a given format. For instance, subsection 4(2.1) of the federal Access to Information Act says that public bodies will “make every reasonable effort to … provide timely access to the record in the format requested.” In practice, this means that unless the format you’ve requested is highly unreasonable, the body should provide the files to you.

  • Redactions: Appealing redactions or withheld records is by far the most complex and time-consuming. If you’re contesting redactions, see the next section.

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Appealing redactions

Adjudication usually follows a tribunal model – it’s a courtlike process where arguments are made about the law and whether those laws were properly applied. 

Because of this, redaction appeals can often seem inscrutable to people that have never filed one before. Take Ontario, where a public body’s representations are shared with appellants. The body’s representations might be written by lawyers, who may make their arguments over dozens of pages, backed up by appendices containing hundreds of pages of case law.

In most cases, appellants are not lawyers, and appeals bodies recognize that this creates a power imbalance between the appellant and the public body. To address this, many appeals bodies say that they don’t expect legalistic arguments from appellants, and that adjudicators are trained to scrutinize the public bodies’ arguments even if the appellant has made none.

However, experts on appeals that The Globe spoke with are split on the question of whether appellants should provide detailed representations. 

While some said that appeals bodies already have all the information they need to make a ruling, others said representations are still important, that appellants have a better chance of succeeding if they provide them, and that some investigators and adjudicators will not spend much time thinking about an appeal if they don’t receive arguments from the appellant.

Put simply: If your appeal has reached the adjudication stage, you’ll need to decide whether you want to put on your lawyer hat – or, if you have the resources to do so, retain counsel.

The easy way

There are several reasons why you may not want to get into a lengthy legalistic fight. You may not feel comfortable making legal arguments; you have other, more pressing FOIs you’re fighting for; your interest in the redacted information may be minimal; or you may feel like you have a weak case. Since redaction appeals can become very involved, it’s important to pick your battles.

If you elect not to engage in a protracted fight with the public body, you should still write a short letter to the appeals body providing context on the FOI. Why did you file the request? Why are you interested in obtaining the records in question? What do you or the public have to gain from the withheld information? Why, broadly speaking, do you feel like the information should be unredacted?

The hard way

If you’re invested in your FOI and up to the challenge of going toe-to-toe with a public body’s lawyers, you can respond to their representations with your own legal arguments.

These representations hinge on case law established in court and the precedents set by past information commission decisions. Each jurisdiction will have its own body of legal analysis and decisions with which you’ll need to familiarize yourself.

Recognizing that most appellants are not FOI lawyers, appeals bodies often send summaries of the questions at issue in the appeal that may serve as a useful launching point for your arguments. In Ontario, for instance, once an appeal reaches the adjudication stage, all parties are sent a “Notice of Inquiry” that lays out the questions each side should answer, as well as a short guide of past interpretations of the law. These kinds of summaries aren’t exhaustive; you are allowed to raise other issues if you think they’re relevant.

As with court cases, appeals are argued based on the law, established legal precedents and past information commissioner decisions. This means you’ll want to take a three-step approach when constructing your arguments.

  1. Identify the exemption being claimed. Is it related to law enforcement? Trade secrets? Advice to government?

  2. Read the section of your jurisdiction’s freedom of information law that details the exemption. How does it define the exemption? Are there exceptions to that exemption, or clauses elsewhere in the law that reference that section?

  3. Search through past decisions and court cases. How has the language around that exemption been interpreted in situations similar to yours? Have other appeals made winning arguments you could apply? If not, are there new legal theories you could test?

Reading past information commissioner decisions is essential. Use them as a guide on how to construct your arguments. Decisions for every jurisdiction except Manitoba’s, New Brunswick’s and Yukon’s are available on CanLII, a free legal database. These cases can be searched through here, or individually for each jurisdiction at the following links:

The federal government’s Office of the Information Commissioner used to make an “Investigator’s Guide to Interpreting the Act” available online. The guide walked through how various aspects of the federal law, the Access to Information Act, have been interpreted in past court cases. While it’s out of date, it’s still a useful resource. An archived copy can be found here.

During the appeal, the public body will usually be asked to make its representations first and send those to the commission. In most cases, the onus is on the body to show why its redactions apply. This is another safeguard built into legislation that recognizes most appellants are regular people with no background in freedom of information law.

Some redaction appeals are harder to win than others, though each appeal will of course be case-specific. That said, some of the most frequent redaction reasons include:

  • Personal information. At the federal level, these are the most commonly-claimed exemptions. Personal information is a broad category, and personal information exemptions appeals are always very case-specific. The next section breaks down how to argue these cases.

  • Advice to government. Redactions made under this umbrella are intended to protect the policy analysis process and allow public servants to offer full and frank recommendations to the government. While the rules for what qualifies under this exemption vary by jurisdiction, organizations can be overzealous in their application of this type of redaction. Read the law and past decisions carefully; it is possible that some of the information redacted under advice-to-government exemptions could be released.

  • Law enforcement information. Every law has a section that protects information obtained during law enforcement investigations, information on police investigative techniques and other areas of law enforcement. While these kinds of appeals can be difficult, police are often quick to apply these exemptions, and information commissions are aware of this. A close reading of the law and of past decisions will help determine whether you have an arguable case.

Some types of redactions are very difficult to overturn. Those include:

  • Cabinet confidence. The rules on the appealability of cabinet confidences vary by jurisdiction, but these are virtually impossible to overturn on appeal.

  • Solicitor-client privilege. The situation is similar for solicitor-client privilege. Though some public bodies overuse this exemption, in many cases the adjudicator is not legally able to see the documents in question, making these appeals tricky. Courts also tend to be very deferential to solicitor-client privilege claims.

  • Defence and national security. As with cabinet confidences and solicitor-client privilege, appeals commissions and the courts are often inclined to give the government the benefit of the doubt when it comes to matters of defence and national security.

Jurisdictions differentiate between mandatory and discretionary redactions. Mandatory exemptions are ones the public body is required by law to invoke. Cabinet confidences, personal and third-party information are mandatory exemptions in Ontario, for instance. Discretionary exemptions are effectively optional. The body can choose whether it wants to apply them, though in practice discretionary exemptions are treated much like mandatory ones.

FOI laws will explicitly note whether an exemption is mandatory or discretionary, so you will need to read the sections of the law dealing with the exemptions at issue. Discretionary exemptions will often say something like, “The head of an institution may withhold …,” while mandatory ones will say, “The head of an institution shall withhold … .” If you can’t figure out whether an exemption is mandatory or discretionary, ask the public body or appeals commission.

If your appeal concerns a discretionary exemption, you can also question the public body’s “exercise of discretion” – that is, whether they properly considered whether the information should be withheld or not. Exercise-of-discretion disputes are tough to win, but appeals bodies have occasionally ruled that a public body didn’t consider the interest in disclosure before making a redaction and ordered the information turned over.

Reverse onuses, personal information and the public interest

As we’ve already discussed, the public body must show appeals commissions why its redactions apply. There are two major exceptions to this, however.

If the body redacts information on the basis that it is personal information, the onus is reversed in most jurisdictions: The appellant has to show that the information does not qualify for the exemption. Each jurisdiction has its own detailed case law and legal tests you should follow. See, for instance, this example of a real Ontario Notice of Inquiry that lays out the various legal tests used for establishing whether information qualifies as personal information.

Depending on the jurisdiction of your appeal, FOI law may also have a ”public interest override” provision. These rules allow appellants to argue that, even though a certain redaction may apply, the information should be released anyway because it is in the public interest. The Ontario Information and Privacy Commissioner has a useful guide on this override here. This override does not apply to all types of exemptions and its exact mechanism varies by jurisdiction. (The federal law, for instance, does not have a general-purpose public interest override.)

If you’re arguing for a public interest override, you’ll need to show why it should supersede the public body’s claimed exemptions. Is the information going to promote public discourse or enhance public safety? How will the information be used once you get it?

If you are an academic, activist or journalist doing research that benefits the public, you should strongly consider making public-interest arguments in virtually every redaction appeal. In practice, very few appeals hinge on a question of public interest, but a public-interest argument could tilt the balance in your favour if the case is a close one. It also never hurts to remind the public body and information commissioners of the principles under which freedom of information laws exist in the first place.

Bear in mind that you can argue against a given exemption and, at the same time, claim that the exemption is superseded by a public-interest override. For example, when appealing an advice-to-government exemption you can first argue the exemption doesn’t apply for X and Y reasons, then later in your submission claim that even if the adjudicator finds the exemption applies, it should be overridden on a public-interest basis.

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Going to court

If you lose some of or all of your appeal, you’re entitled to request a judicial review in court. If you’re taking an appeal this far, first consult a lawyer with experience bringing judicial review applications.

Keep in mind that judicial reviews can be costly, both in terms of time and money. Filing fees will cost you hundreds of dollars, a lawyer could cost several thousand dollars, and, if you lose, you could be on the hook for the other side’s legal fees. 

Even if you win your appeal at the adjudication stage, the public body may disagree and take the case to court. At this point, speak with the information commission – they may be willing to argue the case on your behalf for free.

Few lawyers in Canada have ever handled judicial reviews of freedom of information appeals, so finding the right person to take your case may require some research. Check with your closest university’s law centre; they may have a legal clinic with law students who are willing to help you pro bono (for free). If your neighbourhood has a legal clinic, speak with them, as well. If you think your case has a public interest component or touches on civil rights or freedom-of-expression of issues, you could also try organizations such as the Canadian Civil Liberties Association, B.C. Civil Liberties Association, B.C. Freedom of Information and Privacy Association, the Canadian Internet Policy and Public Interest Clinic in Ottawa, the Centre for Free Expression at Toronto Metropolitan University or the Centre for Law and Democracy in Halifax.

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