Three FOI appeal decisions that will spook you this Halloween
Published on October 31, 2023
Below are three interesting — and spooky! — freedom of information appeal decisions that were released this fall. Why spooky? Because it’s frightening that public institutions withheld this information in the first place.
Once again for the cheap seats in the back: Contracts and invoices are public!
The Town of Pelham, a community of about 17,000 people in Ontario’s Niagara Region, received a municipal freedom of information request for: “Contracts or agreements between Pelham and [specified newspapers], including invoices. Also any similar documents for other media organizations from Jan 2019 to present.” But the town withheld some records under two exemptions: section 10(1), which covers third-party information, and section 11, which covers economic and other interests. The adjudicator ordered Pelham to release the media organization’s invoices.
Some other documents — e-mails that discussed pricing information — were not ordered released, which is in keeping with previous decisions. The distinction comes down to what types of pricing information is agreed upon by both parties, versus numbers that are being proposed and subject to negotiation.
A public institution claimed records “did not exist” ... but the adjudicator isn’t so sure
In June, 2022, the Saskatchewan Health Authority (SHA) received a freedom of information request for records relating to COVID testing. In its reply, the SHA stated that providing access to much of the information would require creating a record, which it is not obligated to do. (If you’ve been following our Secret Canada reporting, you’ll know that Alberta has also been heavily leaning on this argument and the province is now facing a systemic investigation by the Office of the Information Commissioner.)
In his decision, the adjudicator sided with the appellant on almost all fronts against the SHA. In particular, the adjudicator suggested that the health authority did not properly participate in the appeal process.
“Unfortunately, SHA has provided very little to my office to support that it was not able to provide responsive records. I would expect something more than the one-sentence explanation that the ‘information is not found in a record that can be produced using the normal computer hardware and software of the SHA.’ In addition, SHA did not indicate if the information exists in raw format that can be produced (i.e., does not have to be neatly on one spreadsheet but exists in various ways in other existing records). Also, it is unclear what further steps were taken to locate responsive records for the applicant after the SHA representative talked to the ‘Operational Area.’ There are just too few details here for a finding in favour of SHA.”
Unfortunately, adjudicators in Saskatchewan do not have order-making power — meaning they can’t compel a public body to release information — so we shall see what happens next.
Bookmark this one: a case involving access to legal fees
The freedom of information request in question in this case dealt with the total amount of money that the Corporation of the District of Summerland spent on legal fees relating to an employment law issue.
Summerland, a town of about 12,000 in British Columbia’s Okanagan Valley, withheld all of the records citing the solicitor-client privilege exemption and the protection of third-party personal privacy exemption.
But the adjudicator rejected the use of the solicitor-client privilege protection, finding that “there is no reasonable possibility that disclosing the aggregate sum of the District’s legal fees would reveal privileged communications.” The decision also shot down the personal privacy argument.
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