What is FIPA’s Analysis of the Public Interest Disclosure Under BC’s Freedom of Information and Protection of Privacy Act?

BC Freedom of Information and Privacy Association (FIPA) is a non-profit organization whose goal is to empower citizens by increasing their access to information and their control over their own personal information. BC FIPA provides public assistance and public legal education.

BC FIPA cannot and does not provide legal advice.

Introduction

The legislation governing access to information and privacy law in BC is the Freedom of Information and Protection of Privacy Act (FIPPA), which establishes the rules and rights for requestors and public bodies. One of the strongest disclosure mechanisms in FIPPA is section 25, “information must be disclosed if in the public interest”, and applies in two cases. First, as per s. 25(1)(a), disclosure is required when the information is about a risk of significant harm to the environment or to the health or safety of the public. Second, as per s. 25(1)(b), the disclosure of the information for any other reason than those in s. 25(1)(a) is clearly in the public interest. 

It is very common for requestors to believe their requests should be disclosed under section 25 as it is potentially in the public’s interest, and often it is; however, the threshold requirement for public bodies to disclose information under section 25 is very high. As noted in Order F22-20, section 25 has a high threshold as it overrides all other sections of FIPPA, thus only applying in the clearest and most serious situations.¹ As per Order 02-38, public bodies have a practical incentive to provide evidence to the extent of their abilities that supports the determination of s. 25(1).² The following document attempts to clarify section 25 by providing relevant caselaw.

Section 25(1)(a)

Investigation Report F15-02 states that s. 25(1)(a) applies when there is both a compelling or urgent need for the disclosure and that it is clearly in the public’s interest.³ As per Order F20-57, the risk must be about a future harm; further, the element of temporal urgency is considered a high threshold.⁴ In Order 02-38, one relevant example of information required for disclosure under s. 25(1)(a) after the risk has been identified is “information that allows the public to take action necessary to meet the risk or mitigate or avoid harm”.⁵

Section 25(1)(b)

Investigation Report F15-02 provides guidance on the application of s. 25(1)(b), stating that a public body must disclose information when a “disinterested and reasonable observer, knowing what the information is and knowing all of the circumstances, would conclude that disclosure is plainly and obviously in the public interest”.⁶ Investigation Report F16-02 on page 36 also notes that the duty to disclose under s. 25(1)(b) will not be triggered every time someone “suspects that a public body is not adequately carrying out its functions, or every time there is an ongoing environmental or public safety risk”.⁷

Order 02-38 determined that the duty to disclose under s. 25(1)(b) “only exists in the clearest and most serious of situations where the disclosure is clearly (i.e., unmistakably) in the public interest”, and when the withheld information is “of clear gravity and present significance to the public interest.”⁸ In Investigation Report F15-02, it was clarified that “clearly in the public interest” meant something more than a possibility or likelihood.⁹ Further, the British Columbia Supreme Court in Clubb found that the withheld information cannot just pique the interest of the public; rather, the disclosure of the information must be in the interest of the public.¹⁰

For s. 25(1)(b) to be applicable, the withheld information must first concern a matter that engages the public interest as per Order F23-24.¹¹ Additionally, some reasons that could justify mandatory disclosure include subjects of widespread public debate or discussion by the media or the Legislature, or matters that relate to systemic problems.¹² If the withheld information is determined to engage the public interest, then the next question as per Order F23-24 is whether the nature of the withheld information meets the threshold for disclosure.¹³ The relevant factors from the non-exhaustive list in Order F23-24 are whether the disclosure of the withheld information (1) would educate the public; (2) facilitates the expression of public opinion or enable the public to make informed political decisions; or (3) contributes in a meaningful way to holding a public body accountable for its actions or decisions.¹⁴

Conclusion

In conclusion, public bodies commonly argue that specific withheld information does not meet the high threshold level of magnitude required under s. 25; however, BC FIPA believes that enforcing an overly high threshold for this analysis is inconsistent with the purposes of FIPPA, namely ensuring that public bodies are accountable to the public by allowing the public a right to access information.

References

[1] Re British Columbia (Provincial Health Services Authority) (2022), 2022 BCIPC 22 (CanLII) para 8.
[2] Office of the Premier & Executive Council Operations v Ministry of Skills Development & Labour (2002), [2002] BCIPCD No 38 at para 39.
[3] British Columbia, Office of the Information and Privacy Commissioner, Investigation Report F15-02, 2015 BCIPC No 30 at 12.
[4] Order F20-57 2020 BCIPC 66 at para 49. [1] Supra note 2 at paras 45-46.
[5] Supra note 2 at paras 45-46.
[6] Supra note 3 at 6.
[7] British Columbia, Office of the Information and Privacy Commissioner, Investigation Report F16-02, 2016 BCIPC No 36 at para 36.
[8] Supra note 2 at para 65.
[9] Supra note 3 at 28.
[10] Clubb v Saanich (Corporation of the District), 1996 CanLII 8417 BCSC at para 33.
[11] Re College of Physicians and Surgeons of British Columbia (2023), 2023 BCIPC 28 (CanLII) at para 22.
[12] Ibid at para 22.
[13] Ibid at para 23.
[14] Ibid at para 23.

Updated 2024.07. 27