Step 4: What if there are exceptions to disclosure?
There are numerous reasons for which access to records may be denied or only partially made available under the FOIPP Act and the ATI Act. If one or more exceptions apply, a public body may remove or “sever” the excepted information and release the rest of the record to you. Interpreting this part of the legislation is difficult and complex and constitutes a whole body of legal study. Public bodies don’t always get it right, and if they err, it will usually be to disclose less rather than more.
If you are denied access for one or more of the reasons below, familiarize yourself with the section of the legislation the public body has relied upon to withhold information. If you feel they’ve been a little too generous with their erasures, ask them to review their decisions.
If you still aren’t satisfied with what you have been given and what has been withheld, you can ask the Office of the Information and Privacy Commissioner for a review of the public body’s decision. Starting this process is something like the opening bid in a bargaining or negotiation session. You are required to first ask the organization that provided you with a response to reconsider their position. They may or may not release a little more information. Then you ask the Commissioner’s Office to intervene and they will first try to mediate a resolution and will try to bring you and the public body a little closer by encouraging a bit of give and take. If you aren’t satisfied, you can demand the Commissioner’s Office render a decision, called an Order. In rare cases, and depending on the outcome, you or the public body may appeal the Commissioner’s Order.
It is often the case that asking the Commissioner’s Office to intervene will net you more information than you would otherwise receive, but bear in mind that you shouldn’t use this right frivolously. The Commissioner’s Office (which is notoriously understaffed and underfunded) has a huge backlog of cases and formal reviews can be costly for the Office (and taxpayers).
On the other hand, public bodies will tend to withhold more information than they should in their initial response. This is due to unwritten policy stemming mainly from human nature: if in doubt about a particular piece of information, it is safer to withhold it than release it. If forced to, a public body can always release the information afterwards, but once released, it cannot be taken back. This maxim is especially true of information that is sensitive, politically charged or potentially damaging to government. Here are the legal exceptions to disclosure that a public body can cite as a reason for withholding information. Remember, just because a public body cites one of these exceptions, it doesn’t necessarily mean it actually applies.
Section 14 – Legal advice
Section 15 – Disclosure harmful to law enforcement
Section 19 – Disclosure harmful to individual or public safety
Section 22 – Disclosure harmful to personal privacy
Section 22.1 – Disclosure of information relating to abortion services
Section 16 –Disclosure harmful to law enforcement
Section 17– Disclosure harmful to individual or public safety
Section 18– Disclosure harmful to the financial interests of a public body or the economic interests of Canada
Section 19– Disclosure harmful to personal privacy
Section 20– Disclosure harmful to the business interests of a third party
Section 23– Legal advice
Section 26– Information that will be published or released within 90 days
Section 68– Material that is already public
Section 68.1– Information under the control of CBC (with exceptions)
Section 68.2– Information under the control of Atomic Energy of Canada (with exceptions)
Section 69– Cabinet and Queen’s Privy Council confidences
Section 69.1– Certificate issues under s.38.13 of the Canada Evidence Act
Public bodies tend to apply these exemptions too broadly. If you receive a refusal on the basis of one or more of the above exceptions and you feel it might not be justified, you should appeal for review to the Information Commissioner (see below for more information).
Many provincial Information and Privacy Commissioners have the power to order their government to release records or waive fees, but the federal Commissioner regrettably does not. This is one reason the federal Commissioner can go to the Federal Court on your behalf. If they do not, you have the option to do so yourself.