BC FIPA has proposed revisions to s. 13 of the Freedom of Information and Protection of Privacy Act in Response to the Decision in College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner) in its submission to the Special Committee to Review the Freedom of Information and Protection of Privacy Act (FIPPA).
Section 13 of the Freedom of Information and Protection of Privacy Act permits an exception from access for “information that would reveal advice or recommendations be developed by or for a public body or a minister”. Until recently, it had been generally believed that “advice or recommendations” was limited to documents or reports that advocated that government choose a particular course of action or make a particular decision; in effect, “we recommend that you do this”, or “we advise that you do that”.
In the recent “Dr. Doe” case, however, the Sexual Conduct Review Committee of the College of Physicians was able to withhold from an applicant experts’ reports about whether or not she had been hypnotized. The Court of Appeal held that the s. 13 exception was not limited to recommendations as defined above; instead, the investigation and gathering of facts could be exempted from access pursuant to s. 13, regardless of whether or not any decision or course of action was actually recommended.
The result is a departure from the original intent of the statute. Applicants can now be denied access to a great variety of documents that would previously have been available to them. This will be the case even where the documents are about those applicants themselves and directly affect their interests.
The legislation should be amended to reflect the intention that the words “advice or recommendations” in s. 13 are limited to actually advising or recommending that government do something.