Review Reports:
Below are the five most recent Review Reports issued by the Review Officer. Reports are generally posted within 7 to 10 days of being sent to the parties. These documents are in PDF format, so you may need to install a free version of Acrobat Reader.
Report Release Date: October 22, 2009
Public Body: Department of Agriculture
Issues: Whether
the Department of Agriculture [“Agriculture”]
appropriately applied the Freedom of Information and Protection of
Privacy Act [“Act”] and, in particular:
1. Whether
the Record is a record responsive to the Original
Applicant’s Application for Access to a Record.
2. Whether
the disclosure of the subject information would be an
unreasonable invasion of the Third Party’s privacy, under s. 20 of the
Act.
3.
Whether s. 21 applies to the subject information.
Record at Issue:
The Record at issue in this Review is one email,
written from the Third Party Applicant, an employee of a public body,
to an Agriculture employee. Agriculture has made a decision to release
the email, including the contact information of the Third Party
Applicant, with some minor severances. The only part of the Record
under Review is the contact information of the Third Party Applicant.
Pursuant to s. 38 of the Act, Agriculture has provided the
Freedom of
Information and Protection of Privacy [“FOIPOP”] Review Office with a
copy of the complete Record including the information withheld from
the Original Applicant. At no time are the contents of the Record
disclosed or the Record itself released to the Applicant by the FOIPOP
Review Officer or her delegated staff.
Agriculture deemed the email a responsive Record and I agree that the
Record fell within the scope of the Form 1 Application for Access to a
Record.
Findings:
1.The Third Party Applicant is an employee of a public body
that is listed in the Schedule of the Act.
2. The
email is a responsive Record to the Form 1 Application for
Access to a Record filed by the Original Applicant.
3. The
Record does contain some personal information of the Third
Party Applicant.
4. The Third
Party Applicant sent the email on the letterhead of the
public body of which s/he is employed and it contained his/her
signature block.
5. The email
Record was sent by the Third Party Applicant in the
course of his/her employment for a public body listed in the Schedule of
the Act.
6. Section
20 of the Act is applied in reverse order in accordance with
the Nova Scotia Supreme Court, where s. 20(4)(e) is decided first. The
Third Party Applicant is an employee of a public body, sent the email as
part of his/her work duties and thus disclosure of personal information
is not considered to be an unreasonable invasion of privacy.
7. Under s.
20 of the Act, the Third Party Applicant contends that the
harm that will result from the release of the Record is that s/he and
the public body will open themselves to liability. The governing
legislation protects the public body and its agents for all matters done
in
good faith under the statute.
8. The
Third Party Applicant relies on a section of the relevant
legislation on the basis that s/he was reporting a violation. The
section
cited neither creates an offence nor a duty to report but rather
stipulates when particular powers can be delegated from a Board to the
public body. While the Third Party Applicant was not under any
statutory duty to report the information contained in the Record to
Agriculture, s/he considered that s/he had a moral duty to report.
Agriculture is not the public body responsible for enforcement under the
relevant legislation and takes the position that the Third Party
Applicant
should be aware of this, and therefore should have known it was not
going to result in an investigation [triggering s. 20(3)(b)].
9. I find
that the personal information contained in the Record was not
compiled as part of an investigation and, therefore, the presumption
has no application in this case.
10.
Agriculture applied the Act appropriately when it made a decision
to
release the Record to the Original Applicant. As part of its decision,
Agriculture appropriately severed other third party information from
the Record.
Recommendation: The
Review Officer recommended the following:
That Agriculture confirm its original decision to the Original Applicant
to release the Record including all information related to the Third
Party Applicant with minor proposed severances
Key Words: email,
employee, investigation, personal information,
presumption, public body, Schedule, Third Party, unreasonable invasion.
Statutes Considered: Freedom
of Information and Protection of
Privacy Act, ss. 2, 3(1)(b), 3(1)(i), 3(1)(j), 15(1)(d), 20(2)(f),
20(3),
20(3)(b), 20(4)(e), 21(1)(a)(ii), 21(1)(b), 21()(c), 22, 38.
Case Authorities Cited: NS Review
Reports FI-05-08, FI-05-70, FI-07-
38, FI-08-44,
FI-07-12;
ON Orders P-257, P-427, P-1412, P-1621, R-
980015, MO-1550-F, PO-2225, PO-2579, MO-2424;
House, [2000]
N.S.J. No 473 (S.C.);
Atlantic
Highways Corporation v. Nova Scotia
(1997), 162 N.S.R. (2d) 27.
Report Release Date: September 30, 2009
Public Body: Department of Community Services
Issues: Has the Department of Community Services [“Community
Services”] properly withheld portions of the Record in accordance with
the Freedom of Information and Protection of Privacy Act [“Act”], and,
in particular:
1. Whether s. 14(1) of the Act allows Community Services to withhold the
severed information.
2. Whether Community Services appropriately exercised its discretion
under s. 14(1) of the Act.
3. Whether ss. 20(1), 20(3)(d) and 20(3)(g) of the Act require Community
Services to withhold the severed information.
Record at Issue: Pursuant to s. 38 of the Act, Community Services
has provided the Freedom of Information and Protection of Privacy Review
Office with a copy of the complete Record, including the information
withheld from the Applicant. The Record consists of four Investigation
Reports prepared by an external consultant for Community Services, which
were the result of internal workplace complaints initiated by the
Applicant.
Summary: An Applicant requested a Review of decisions made by
Community Services to sever personal information of third parties from
the Record which consisted of four Investigation Reports prepared by an
external consultant for Community Services.
Recommendations: The Review Officer recommended the following:
1. Community Services should seek the consent of the Applicant to make
his/her identity known to the third parties. Once that step is taken,
re-seek the consent of the third parties’ consent to the release of the
Record in full.
2. Alternatively, if the Applicant does not provide his/her consent to
make his/her identity known to the third parties and/or the third
parties do not consent to release of the Record in full, Community
Services should release the responsive Record as requested by the
Applicant with minor severances of the third parties’ personal
information. These severances should not include any personal
information about the third parties related to their employment with
Community Services.
Key Words: advice, agent, background information, consent,
discretion, employees, employment history, external consultant,
Investigation Report, notice, personal information, recommendations,
summary, third parties, Union, unreasonable invasion of personal
privacy, witness statement, workplace investigation.
Statutes Considered: Nova Scotia Freedom of Information and
Protection of Privacy Act s. 2, 3(1)(a), 3(1)(b), 3(1(i), 3(1)(m), 5(2),
14(1), 20(1), 20(3)(d), 20(3)(g), 20(4), 20(5), 22(1), 22(4), 45.
Case Authorities Cited: NS Reports FI-05-32, FI-08-66; ON
Orders P-118, MO-2222, M-444; NL Order A-2009-002; BC Order F-05-32,
F-01-53; R. v. Fuller (2003), 213 N.S.R. (2d) 316 (S.C.); Re House,
[2000] N.S.J. No. 473 (S.C.); Dickie v. Nova Scotia (Dept of Health),
[1999] NSCA 7239.
Other Cited: BC FOIPP Act Policy and Procedures Manual.
Report Release Date: September 1, 2009
Public Body: Department of Justice
Issues:1. Whether s. 20 of the Freedom of Information and
Protection of Privacy Act [“Act”] requires the Department of Justice
[“Justice”] to withhold the Record in full.
2. Whether it is necessary to consider any other exemptions.
3. If yes, whether the Review Officer will accept Justice’s late claim of
s. 18 of the Act.
4. If yes, whether s. 18 of the Act allows Justice to withhold the
Record in full.
Record at Issue: Three handwritten letters from the Third Party to the
Minister of Justice.
Summary: The Applicant made an Application for Access to a Record to
the Department of Justice for handwritten correspondence from the
Third Party to the Minister of Justice. Justice made a decision to
withhold the Record in full because it contained personal information of
the Third Party who did not consent to its release, was provided in
confidence, and would result in an unreasonable invasion of the Third
Party’s privacy. In addition, Justice claimed a late exemption under s.
18 of the Act, which was accepted by the Review Office after Justice
gave notice to the Applicant. Justice did not make out the test under
s. 18 of the Act allowing it to refuse the Applicant access to his/her
personal information.
Recommendations: The Review Officer recommended the following:
1. Justice re-affirm its decision to withhold all personal information about Third Parties in the Record under s. 20 of the Act by letter to the Applicant with a copy to the Review Officer;
2. Justice provide the Applicant with a severed copy of the Record, after it has been transcribed to avoid the release of a severed version of the Third Party’s handwritten letters.
Key Words: confidential, discretion, discretionary exemption, duty to
assist, handwritten, financial or other harm, in-camera, late
exemption, litigation, mandatory exemption, mental or physical health,
Minister of Justice, notice, opinions, personal information, private,
Representations, safety, severed, transcribe, unreasonably interfere
with the operations, views.
Statutes Considered: Freedom of Information and Protection of
Privacy Act, ss. 2, 3(1)(i), 4(2)(j), 5(1)(2), 7(1)(a)(2)(a), 8(3), 18, 2
(1)(2), 37(1), 37(3); BC Freedom of Information and Protection of
Privacy Act s. 22.
Case Authorities Cited: NS Review Reports FI-07-72, FI-07-59, FI-06
79; BC Orders F-08-19, F-07-24; ON Order MO-2371; Re: House [2000
N.S.J. No. 473 (S.C.).
Other Cited: Procedure for Claiming Additional Exemption Claims;
BC’s FOIPP Act Policy and Procedures Manual – Interpretation Note 1
(Section 22(1)), Interpretation Note 2 (Section 22(2)), Interpretation
Note 1 (Section 19(1)(a); Ontario IPC Practices, Number 9.
Report Release Date: August 14, 2009
Public Body: The Municipality of the District of Lunenburg
Issues:Whether the Municipality of the District of Lunenburg [“the Municipality”] appropriately applied Part XX of the Municipal Government Act [“MGA”] and, in particular:
1.Whether
a Conflict of Interest affected the handling and processing of the
Applicant’s Application for Access to a Record.
2.Whether s. 474 of the MGA allows the
Municipality to withhold the severed information.
3.Whether s. 476 of the MGA allows the Municipality to withhold the
severed information.
4.Whether the Municipality has conducted an adequate search for the
responsive Record in accordance with the duty to assist.
Summary: An Applicant requested a Review of the Municipality’s
decision to refuse access to a Record pursuant to s. 474 [advice] and s. 476 [solicitor-client privilege] of the MGA. The Applicant alleged that the Freedom of Information and Protection of Privacy [“FOIPOP”]Administrator who is also the Chief Administrative Officer for the Municipality/Responsible Officer and was formerly the Director of Planning and Development was in a conflict of interest. At all times throughout the Review process, the Applicant took issue with the adequacy of the search conducted and remains dissatisfied. The Record was partially released along with three decisions over a period of nearly two years.
Recommendations: The Review Officer recommended the following to the Municipality:
1. Conduct a new search for the entire responsive Record to be
provided to the Applicant at no cost. In conducting the new search, the Municipality should take the following into account:
a. The start date for the search be February 18, 2004 and be up to and including August 9, 2007, in accordance with the Applicant’s Form 1;
b. Do not restrict the search for records only to those in the custody of the Chief Administrative Officer/Responsible Officer/FOIPOP Administrator;
c. Search all records in the custody or under the control of the Municipality;
d. Rely on a proper keyword search including the names of all staff and involved third parties, and the acronyms for all involved companies and agencies and, in particular, the local resident groups and advisory committees;
e. Include archived files and emails in the search, but not backup tapes;
f. Prepare a comprehensive Index of Records for the new Record;
g. Even if it means the Applicant will have some duplicates, the FOIPOP Administrator is to disregard all previous packages given to the Applicant in preparing the Record that is responsive to the original Form 1.
2. In addition to conducting a new search, the following pages should be released to the Applicant, in full, immediately:
-
Pages 950 – 952
-
Page 1094
-
Pages 1132 – 1136
-
Page 1164
-
Pages 1183 – 1185
3. With respect to the document from the in-camera meetings, the Municipality should consider exercising its discretion to release it in full. Alternatively, the small portion of the Record to which solicitor-client privilege applies could be severed and the remainder of the Record released.
4. With respect to the three documents to which s. 474 [advice] has been applied, the Municipality should re-confirm its decision to withhold that information because the exemption was applied appropriately under the MGA.
Key Words: advice, Attorney General of Nova Scotia, background information, conflict of interest, Crown Prosecutors, discretion, FOIPOP Administrator, in-camera meetings, Information Access and Privacy Office [IAP], minutes, offence, reasonable, RCMP, Responsible Officer, search, severed, solicitor-client privilege.
Statutes Considered: Part XX, Municipal Government Act, ss. 461(a)(i), 461(h), 465(1), 465(2), 474, 476, 482, 498(1), 497, 500; Part I, Municipal Government Act, s. 22.
Case Authorities Cited: FI-07-50(M); FI-08-66; ON Order MO-2227; FI-08-26(M); ON Order MO-1283; O'Connor v. Nova Scotia, 2001 NSSC 6; R. v. Fuller (2003), 213 N.S.R. (2d) 316 (SC); FI-05-27; FI-05-84; FI-05-08; FI-04-25; ON Order MO-2334; BC Order 02-03; FI-07-58; NL Report 2007-014.
Other Cited: Freedom of Information and Protection of Privacy Act Regulations; FOIPOP Policy and Procedure Manual; McNairn, Colin and Woodbury, Christoper, Government Information: Access and Privacy.
Report Release Date: July 16, 2009
Public Body: Department of Transportation and Public Works [now the Department of Transportation and Infrastructure Renewal]
Issues: Whether the Department of Transportation and Public
Works [“Transportation”] appropriately applied the Freedom of
Information and Protection of Privacy Act [“Act”] and, in particular:
1. Whether the letter requested by the Applicant qualifies as
solicitor-client privileged.
2. If the Record qualifies as falling within the definition of
solicitor-client privilege, whether Transportation has properly applied
the s. 16 solicitor-client privilege exemption to the Record.
Record at Issue: Pursuant to s. 38 of the Act, Transportation has provided the FOIPOP Review Office with a copy of the information withheld from the Applicant. The Record at issue in this Review is one letter, written from a Department of Justice Solicitor to an employee with Transportation. At no time are the contents of the Record disclosed or the Record itself released to the Applicant by the FOIPOP Review Officer or her delegated staff.
Findings: The Review Officer found that:
1. Transportation’s FOIPOP Administrator’s decision letter did not
provide any explanation or rationale to the Applicant regarding the
exercise of discretion under s. 16 of the Act, contrary to the duty to
assist, or give any reasons for its decision contrary to s. 7(2)(a) of
the Act. It is somewhat perplexing that decades after access legislation
came into force in Nova Scotia and after countless Review Reports on
proper procedure regarding discretionary exemptions that a public body
would be responding to an Applicant in this manner in 2008.
2. The actual decision provided to the Applicant from Transportation to
not release the Record appears to have been made by an employee other
than the FOIPOP Administrator not designated under the Act and who,
therefore, had no authority to make a decision not to provide access.
3. The Applicant’s Representations support the fact that there may be
sufficient local public interest in understanding government’s decision
to require Transportation to exercise its discretion to waive the
solicitor-client privilege exemption and release the Record.
4. Solicitor-client privilege involves a confidential communication in
the context of a longstanding legally sanctioned and protected
relationship that deserves respect. However, in the context of access to
information legislation, solicitor-client privilege has been included in
the statute in the form of a discretionary exemption leaving it open to
public bodies to release the information where the circumstances call
for openness. It is not sufficient under the scheme of the Act for a
public body to simply cite the exemption in s. 16 solicitor-client
privilege without giving reasons as to how it has exercised its
discretion. Included in those reasons must be an indication of what harm
would result from its release.
5. Solicitor-client privilege belongs to the client, which in this case
is Transportation, and it is an option for the FOIPOP Administrator or
the head of Transportation to make a determination under s. 16 of the
Act as to whether or not to waive the privilege and grant the Applicant
access to the requested information.
6. Transportation did not provide any evidence or argument to support
the fact that harm would result from disclosure of the Record.
7. Though raised by the Applicant in the Application for Access to a
Record and included in the Review Office Investigative Summary given to
the parties, Transportation did not address the issue of public
interest.
8. I find that it is possible to sever the privileged portion of the
Record.
Recommendations: The Review Officer recommended that:
1.The FOIPOP Administrator reconsider its decision and exercise its
discretion by deciding whether to waive privileged information by
recognizing that no demonstrable harm would result, being cognizant of
the local public interest and recognizing that such full disclosure
would be consistent with the Act’s purpose to ensure fairness in
government’s decision-making; or
2.Transportation, at a minimum, provide the Applicant with a copy of the
Record severing the few sentences near the conclusion of the letter that
include legal advice and are subject to solicitor-client privilege.
Key Words: balance, burden, construed liberally, construed narrowly, delegated authority, discretion, employee, fair process, fait accompli, FOIPOP Administrator, front line staff, harm, legal advice, new decision, public interest, reasoned and seasoned, reasons, solicitor-client privilege.
Statutes Considered: Freedom of Information and Protection of Privacy Act, s. 2, 7(2), 16, 31(1)(b), 31(4), 38(1), 39(2), 42(6), 45(1).
Case Authorities Cited: NS Review Reports FI-05-08, FI-00-116, FI-04-25, FI-08-66, FI-05-25; Blood Tribe (Department of Health) v. Canada (Privacy Commissioner) (F.C.A.) (2006), [2007] 2 F.C. 561; R. v. Fuller (2003), 213 N.S.R.(2d) 316; O'Connor v. Nova Scotia, 2001, 10 C.P.R (4th) 129; Stevens v. Canada (Prime Minister), [1997] 2 F.C. 759 (Fed. T.D.); McCormack v. Nova Scotia (1993), 123 N.S.R.(2d) 271; McLaughlin v. Halifax-Dartmouth Bridge Commission (1993) 125 N.S.R.(2d) 288.
Other Cited: McNairn, Colin and Woodbury, Christopher,
Government Information, Access and Privacy; Rankin, Professor Murray T.,
The New Access to Information and Privacy Act: A Critical Annotation
(1983), 15 Ottawa Law Review.