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Case study

Three rare examples where FOI appeals commissions handed out consequences

Michael Harvey, Newfoundland and Labrador Information and Privacy Commissioner, is photographed in the Quidi Vidi area of St. John's. Alex Spracklin/The Globe and Mail
Newfoundland and Labrador Information and Privacy Commissioner Michael Harvey. Alex Spracklin/The Globe and Mail

One of the major flaws with Canada’s freedom of information regime is that there are few – if any – consequences for refusing to release records that should be made public. 

If a requester believes a public institution has inappropriately withheld documents, the only recourse they have is to file an appeal with the jurisdiction’s information commissioner or ombudsman. But it usually takes years for an adjudicator to release a decision. And even if the requester wins, the best-case scenario is that the institution is forced to release the record. (In several provinces, the appeals commissions can’t even do this as they only have the power to make a recommendation.) 

It’s very rare for a public body to face any further consequence. However, The Globe conducted an analysis of publicly-posted appeals decisions from the past two years and located a handful of examples where appeals commissions went further.

A Newfoundland and Labrador government department, December, 2022

After reviewing the facts in this case, Information and Privacy Commissioner Michael Harvey was so troubled by how the Department of Industry, Energy and Technology handled this freedom of information request that he recommended new training and policies for government staff.

A requester had asked for records relating to proposed wind turbine farms and an ammonia/hydrogen plant. The department disclosed some records, but withheld others under several exemptions: policy advice or recommendations made to government; information that, if disclosed, would be harmful to the financial or economic interests of a public body; and information that, if disclosed, would be harmful to the business interests of a third party. 

The requester appealed. They asked for a review of the exemptions and also complained that the only records produced from the government came from e-mail. The requester wanted to know, for example, why the department hadn’t released documents such as meeting minutes.

In his decision, Mr. Harvey sided with the requester on both concerns. First, he concluded that the government had not adequately explained why exemptions had been applied in many cases. He also determined that the department had not conducted a reasonable search for records. 

“Many public bodies are experiencing significant challenges regarding staffing and resourcing, and the Department is no exception,” Mr. Harvey wrote. “However, fulfilling access-to-information requests is a legislated part of each public body’s responsibilities. Efforts must be made to ensure transparency and accountability is not compromised while dealing with other departmental concerns.” 

He recommended the department release the records, but his decision was notable for another reason: He advised department staff to take additional training on access-to-information law. He also recommended that the department prioritize improving its records management policies and procedures.  

Newfoundland and Labrador is one of the jurisdictions in which the appeals commissioner does not have “order-making power,” meaning the ability to force a public body to do something. It does, however, have more power than the recommendation-only appeals bodies. The province operates in a hybrid system whereby if a public body doesn’t want to adhere to the commission’s recommendations, it must apply to the courts for a declaration that it’s allowed to ignore the ruling.

The Globe reached out to the ministry to comment on the case. In a statement, spokesperson Tansy Mundon said: “The department accepted all of the commissioner’s recommendations. Implementation of measures to respond to the recommendations is ongoing and in various stages.”

A Nova Scotia police service, March, 2022

The backstory of this decision is a curious one, involving a small police force in Nova Scotia and a strange inquiry it made with an unnamed municipality. 

In this case, the requester learned that someone from the municipality had contacted New Glasgow Regional Police to see if officers were aware of the requester’s “background.” After learning of this inquiry, the requester filed an FOI with the New Glasgow police to obtain copies of any communications that may have been exchanged between the municipality and the police, and also to see what actions officers may have taken after receiving the municipality’s message. (The requester sent the same request to the municipality.)

Initially, the police service told the requester that they couldn’t locate any records. The individual appealed to Nova Scotia’s Office of the Information and Privacy Commissioner (OIPC), prompting the police to conduct a second search. This time, they located two sets of documents.

With the first, the requester had actually already obtained a copy from the municipality, as a result of the other FOI. (The police department tried to explain this away by saying it “mistakenly” assumed it wasn’t obligated to produce those records because it knew that the municipality in question had already released them.) As for the second set of documents, the police force’s description of those files was something of a head scratcher. Although New Glasgow acknowledged that it had located records in response to the requester’s FOI, it simultaneously insisted that they weren’t about the requester and shouldn’t be released. The requester was never able to get any clarity because the police service lost the file. 

By the time Information and Privacy Commissioner Tricia Ralph got around to rendering a decision, it had been four years since the requester filed an appeal. During that time, there had been lots of personnel turnover at the New Glasgow police service, and at some point, the records disappeared. Ms. Ralph never had an opportunity to review them.   

In her decision, Ms. Ralph scolded the police department for shoddy record keeping.

“To the best of my knowledge, the Police did not have rules in place to keep copies of all records that related to this access request until the review was complete,” she wrote. “This case highlights how public bodies, municipalities and municipal bodies should have processes in place for records management generally and for managing their access-to-information regime. The OIPC does not have oversight over records management practices, therefore I can make no finding in this regard.”

Still, she recommended that within six months, the New Glasgow Regional Police review its policies and procedures related to requests and records management and “make the necessary adjustments.” 

The New Glasgow Regional Police did not respond to a request for comment.

A Saskatchewan rural municipality, March, 2021

As part of the reporting for Secret Canada, The Globe and Mail interviewed staff that work within appeals commissions about the most common problems they see when processing complaints. One comment we heard over and over was that smaller municipalities seemed to struggle the most with meeting their freedom of information obligations. These jurisdictions are often operating with few resources. It’s not uncommon for the person tasked with responding to FOIs to be juggling other jobs as well. This can create a lack of expertise with respect to the law and also a lack of time to properly process requests. 

This appeal concerning the Rural Municipality of Sherwood No. 159 in Saskatchewan is an extreme example.

In this case, a requester asked for correspondence between senior municipal officials and someone else (possibly a person or a company) about various real estate developments. That was in March, 2019. A few months later, the municipality told the requester it would cost $1,368.25 to process the request. The requester paid 50 per cent, which is customary, and appealed. (The complaint included concerns about “exorbitant fees” and delays.) 

The municipality identified 697 relevant pages, but the vast majority were withheld. Only  55 pages were released and each included redactions. 

In the decision, the adjudicator found a litany of errors in the way that exemptions were applied. For example, the municipality withheld large swaths of records under an exemption aimed at protecting “financial, commercial, scientific, technical or labour relations information that is supplied in confidence,” to the local authority by a third party.

The adjudicator wrote: “I would like to reiterate that simply marking something confidential does not make it confidential. I would also like to remind the RM [Regional Municipality] that it should be indicating to businesses that they cannot automatically assume the expectation of confidentiality through business dealings with the RM. The RM is a local authority, and as such, is subject to and must comply with [the legislation].” 

As for the fee, the adjudicator found that the public body lost the ability to charge a fee because they did not reply within the legislated 30 days. The municipality was ordered to refund the requester.

In addition to recommending the municipality release a large portion of the withheld documents, the adjudicator advised the officials at Sherwood No. 159 to address a long list of access shortcomings. The commissioner asked the municipality to:

  1. Review its procedures when responding to access requests to ensure it is meeting the legislated timelines.

  2. Develop a procedure for conducting line-by-line reviews and properly severing records for release.

  3. Develop policy and procedures for processing access to information requests.

  4. Implement access to information training for its staff involved in processing requests.

The Rural Municipality of Sherwood No. 159 did not respond to a request for comment.

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