Review Reports:
Below are the five most recent Review Reports issued by the Review Officer. Reports are generally posted here 2 full days after they have been 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: January 14, 2008
Public Body: Department of Education
Issues: When the head of a public body can refuse an Applicant access
to information where the disclosure could reasonably be expected to
harm intergovernmental relations.
When the head of a public body can refuse to disclose information that
would reveal advice for or to a public body to an Applicant.
Summary: The Applicant made an Application for Access to a Record to
the Department of Education requesting information concerning the
Applicant and/or the Applicant’s businesses. Education refused the
Applicant access to the Record citing two discretionary exemptions; s.
12(1) and s. 14(1) of the Act.
The Review Officer found that Education provided sufficient evidence
on a confidential basis to demonstrate that the severed portion of the
Record could reasonably be expected to harm the conduct of relations
between the Province of Nova Scotia and another level of government.
The Review Officer also found that the email discussions in the Record
regarding a proposed plan falls short of what constitutes “advice” for
the purpose of s. 14 of the Act.
Recommendations: 1. Education should provide a copy of the Record to
the Applicant including any personal information, severing only the
portions which would harm intergovernmental affairs;
2. Education should make every effort to inform those within its
Department that it is important to avoid making unnecessary
reference to potential applicants or third parties in email exchanges
that are principally about negotiations, consultations or other sensitive
exchanges between different levels of government and that remotely
involve the other parties to whom they refer.
Key Words: Advice, email, intergovernmental relations, information
received in confidence, Third Party.
Statutes Considered: Nova Scotia Freedom of Information and
Protection of Privacy Act s. 2, 3(1)(i), 5(1), 12(1)(a) and (b), 14(1),
14(2)
Case Authorities Cited: Chesal v. Attorney General of Nova Scotia,
2003 NSCA 124; Do-Ky et al. V. Canada (Ministers of Foreign Affairs
and International Trade) (1999), F.C.J. No. 673; Lavigne v. Canada
(Officer of the Commissioner of Official Languages) (2002) S.C.J.
No.55; McLaughlin v. Halifax-Dartmouth Bridge Commission (1993),
125 N.S.R. (2d) 288; O’Connor v. Nova Scotia (Minister of Priorities
and Planning Secretariat) (2001) 197 N.S.J. No.360; FI-02-49; FI-03-
51; FI-05-11; LA-2007-001.
Summary: An Applicant requested a copy of his/her personal information contained in a report in the custody of the Society. The Society subsequently notified all Third Parties requesting their permission to release the portion of the Record containing the Third Parties’ respective personal information. After considerable delay and receiving responses from three Third Parties, the Society ultimately refused access to the Record citing s. 20 of the Act.
The Applicant filed a Review Request and submitted that s/he was seeking access to his/her personal information and not any Third Party information. The Society advanced the position that the Record contained the personal information of Third Parties, was supplied in confidence and therefore should be withheld.
The Review Officer found that the Applicant is entitled to a copy of the Record with Third Party information removed.
Report Release Date: November 9, 2007
Public Body: Children’s Aid Society Inverness – Richmond
Issue: Whether the Children’s Aid Society Inverness – Richmond [“Society”] properly applied s. 20 of the Freedom of Information and Protection of Privacy Act in withholding the Record in its entirety.
Recommendations: 1. The Society should provide a copy of the Record pursuant to s. 5(2) of the Act with any and all identifying information of all Third Parties severed, other than the personal information referring to the adult Third Parties who have consented to release;
2. Alternatively, where the information is provided in confidence, the Society must provide a summary of the report made to the Society, in other words, a summary of the Record, pursuant to s. 20(5) of the Act. The statute provides that a public body’s duty to provide a summary will not apply when the summary cannot be prepared if to do so would reveal the identity of a Third Party. As an oral summary has already been provided to the Applicant, presumably without jeopardizing any Third Parties identities, the Society is required to provide a summary of the Record, in writing;
3. With respect to Recommendations #1 and #2, having reviewed the Record carefully in its entirety, the Review Officer believes that the Record is capable of being severed.
4. As a minimum, the Record is clearly capable of being summarized to provide the information to the Applicant.
5. The Society adopt the format and wording of Form 1 available on the homepage of the Freedom of Information and Protection of Privacy Review Office that will require an Applicant to choose between “an applicant’s own personal information” or “other information” or both.
6. The Society request the Department of Justice Information Access and Privacy Office (Freedom of Information and Protection of Privacy Coordinator), or whatever public body is responsible for training Children’s Aid Societies, to provide the people responsible for processing Applications for Access to a Record with comprehensive training in access to information and privacy including but not limited to
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ensuring the Society has a copy of the FOIPOP Administrators Policy and Procedure Manual;
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those responsible for the training considering including instruction on:
The duty to assist an Applicant
How to determine what is within the scope of a Record that is responsive to the Application for Access to a Record
The distinction between an applicant’s personal information and personal information about third parties
When third parties need to be given Notice and when they do not under the Act
How to sever a record to provide information to which an applicant is entitled and remove any information that would constitute an unreasonable invasion of third parties’ personal privacy
How to provide a summary of the personal information for an applicant if severing of a record is impossible
How to describe the contents of a record to a third party without disclosing the contents of the actual record when soliciting their consent to disclosure
7. Apologize to the Applicant for the inordinate delay in processing this request for access to his/her personal information; delay caused by contacting Third Parties unnecessarily and delay resulting from failure to provide a complete Record to the Review Office in a timely fashion. This is particularly important given the sensitive nature of the events surrounding the report and the Applicant’s explicit purpose in accessing his/her personal information – to bring closure to an unfounded report. Delay in such situations can exacerbate an otherwise reparable harm.
Key Words: apology, child protection, delay, describing the contents of the record, duty to assist, duty to report, notice or no notice to third parties, personal information, supplied in confidence, unreasonable invasion of a third party
Statutes Considered: Nova Scotia Freedom of Information and Protection of Privacy Act s. 2(a)(ii), 2(c), 3(i), 5(i), 5(2), 7(1)(a), 10(1)(c), 20(1), 20(2)(f), 20(3)(b), 20(4)(a), 20(5), 22(1)(b), 22(1A)(a)25(1); Children and Family Service Act s. 23(1), 24(2)
Case Authorities Cited: Dickie v. Nova Scotia (Department of Health), 1999 CanLII 7239 (NS C.A.), (1999), 176 N.S.R. (2d) 333; Cyril House et al, Unreported, Court File #160555, NSSC; R. v. Ryan (1991), 107 NSR(2d) 357 (CA); Nova Scotia (Department of Community Services) (Re), 1999 CanLII 912 (NS F.O.I.P.O.P.), FI-99-64; BC Information and Privacy Commissioner Order No. 44-1995; Halifax Regional Police (Re), 2007 CanLII 12675 (NS F.O.I.P.O.P.), FI-06-71(M); House, Re, 2000 CanLII 20401 (NS S.C.), Cyril House (Abascus Security Consultants) 2000 NSSC; Metropolitan Toronto Police Services Board (Re), 1995 CanLII 6573 (ON I.P.C.), M-444
Other Cited: FOIPOP Administrators Policy and Procedure Manual [Department of Justice]
Summary:
An Applicant requested a Review of an Executive Council decision to
apply s. 13(1) (Deliberations of Executive Council) of the Freedom of
Information and Protection of Privacy Act in withholding part of a
Record. The Applicant specifically, requested the Review Officer to
consider whether s. 13(2)(c) overrides s. 13(1).
The Review Officer found the decision by the Executive Council to
provide a response based on a broad interpretation of the request for
access is consistent with the duty to assist in s. 7 of the Act and that the Executive Council released as much of the
information to the Applicant that formed part of its deliberations prior
to implementation of the decision as it could without comprising the
principle of Cabinet confidentiality.
The Review Officer upheld the decision of the Executive Council to
exercise its discretion to withhold a portion of the Record under
s. 13(1).
Report Date: September 21, 2007
Public Body: Executive Council
Issue: Whether Executive Council properly exercised its discretion to sever information in applying the exemption in s. 13(1) (Cabinet Confidence) or whether the information constitutes background information under s. 13(2) and should be released.
Recommendation: Executive Council re-affirm its decision to sever under s. 13(1) in a letter to the Applicant with a copy to the Review Officer.
Key Words: Ad Hoc Committee, Background Information, Cabinet Confidences, Clearly in the Public Interest, Executive Council, Factual Material, Matter of Public Record, Oath of Allegiance, Oath of Confidentiality.
Legislation Considered: Nova Scotia Freedom of Information and Protection of Privacy Act s. 2( b), 3(1)(a)(xii), 4(1), 5(2), 13(1), 13(2)(c), 31(1), 45(1). Freedom of Information and Protection of Privacy Regulations s. 24(1), s. 24(2).
Case Authorities Cited: O'Connor v. Nova Scotia, 2001 NSCA 132 (CanLII), 2001 NSCA 132, O'Connor v. Nova Scotia, 2001 NSSC 6 (CanLII), 2001 NSSC 6, FI-02-58, Nova Scotia (Department of Justice) (Re), 2002 CanLII 12493 (NS F.O.I.P.O.P.), Babcock v. Canada (Attorney General), 2002 SCC 57 (CanLII), [2002] 3 S.C.R. 3, 2002 SCC 57, FI-02-77, Nova Scotia (Department of Justice) (Re), 2002 CanLII 15363 (NS F.O.I.P.O.P.).
Others Cited: Management Guide #100, Chapter 3, for the Government of Nova Scotia, Procedures Manual - FOIPOP (2005), The Access to Information Act and Cabinet Confidences, A discussion of New Approaches, 1996, Treasury Board Secretariat, Access to Information Act: Policies and Guidelines, [Ottawa, 1983], Confidences of the Queen’s Privacy Council for Canada, Province of Ontario, Report of the Royal Commission on Freedom of Information and Protection of Privacy, vol.2, Freedom of Information, Freedom of Information and Protection of Privacy Act, R.S.O. 1990 c. F.31, Information Commissioner of Canada, The Access to Information Act and Cabinet Confidences: A Discussion of New Approaches, Government Information: Access and Privacy, McNairn and Woodbury, Thomson Carswell.
Summary: An Applicant requested a Review of
a decision by the Department of Justice [“Justice”], not to provide a
copy of a videotape showing the Applicant being tasered by correctional
workers. Justice refused to disclose the videotape initially citing s.
15(1)(k), and s. 15(a)(1) of the Act and subsequently s.
18(1)(a), as late exemption. Justice stated it had never disclosed
a video or audio tape, or provided a screening of correctional
facility tapes because of the related property security, law
enforcement and health and safety issues.
The
Applicant submitted that the names and identities of correctional staff
could not be determined from the videotape as they are wearing disguises
and that the cells of the correctional facility have been shown
on television in the past.
Justice provided the Applicant with a transcript of the audio portion of the first videotape during mediation. There was a material error in the transcription and when it was corrected, Justice apologized for this mistake. Neither party objected to reference to the transcription in this Review despite it being a part of the mediation process.
The Review Officer found that Justice had failed to exercise its discretion contrary to the Act, had inappropriately relied on particular exemptions, had not provided any evidence to support the use of the discretionary exemptions, and had filed late exemptions with the Review Officer, without explanation.
Report Date: September 10, 2007
Public Body: Department of Justice
Issue: Whether s. 15 and s. 18 of the Freedom of Information and Protection of Privacy Act [“Act”] allow a public body to withhold videotapes containing the personal information of the Applicant.
Recommendations: That Justice reconsider its initial decision to withhold and exercise its discretion appropriately in granting access to the Applicant’s personal information. The Review Officer provided options to Justice to assist in meeting this recommendation.
Key Words: apology, correctional facility, correctional officer, duty to assist, exercise of discretion, fettered discretion, function as an employee or officer, late exemptions, mandatory exemptions, mediation, personal information, source of law enforcement information, taser, third party, transcript, videotape
Statutes Considered:
Nova Scotia Freedom of Information and Protection
of Privacy Act s. 2, 3(1)(i), 3(1)(k),3(1)(m), 7(1)(a), 8(2)15(1)(d),
15(1)(k), 18(1)(a), 20(4)(e)
Case Authorities Cited: BC Order 00-01; Langley Township Bylaw Enforcement Records, Re, 2000 CanLII 9670 (BC I.P.C.); Cyril House and 144900 Canada Inc. (Abacus
Security Consultants and Investigators)(2000) unreported S.H. No. 160555
(N.S.S.C.); House, Re, 2000 CanLII 20401 (NS S.C.); Dickie v. Nova
Scotia (Department of Health) (1999), 176 N.S.R. (2d) 333; 1999 CanLII
7239 (NS C.A.); FI-06-07; Halifax Regional Police (Re), 2007 CanLII
12675 (NS F.O.I.P.O.P.); Order F07-17 Ministry of Forests and Range,
July 31, 2007;
Other Cited: Procedures Manual - FOIPOP (2005) [Late Exemptions; Mediation]; Review Office “Citing Late Exemptions Policy”
Summary: A Third Party Applicant requested a Review of a decision of Acadia University to grant partial access to a Request for Proposal submitted by the Third Party Applicant for food services. The Third Party objected to the release of any part of the Record, claiming the information was confidential, citing s. 21 of the Freedom of Information and Protection of Privacy Act ["Act"]. The Original Applicant sought access to the Record submitting they had the right to know how public money is spent. The Review Officer found that the Third Party Applicant had successfully met the three-part test of s. 21 and recommended the Record not be disclosed.
Report Date: July 27, 2007
Public Body: Acadia University
Issue: Whether a Third Party’s bid to provide food services to Acadia University should be released to the Original Applicant.
Recommendations: 1. The Record not be disclosed by Acadia to the Original Applicant because the Third Party Applicant has successfully met the three-part test in s. 21 of the Act; and
2. Acadia, and all public bodies, should review both their REIs and RFPs, in particular, references to the Act, and consider being more specific with respect to the three requirements of s. 21; to put potential proponents in the procurement process on notice and to assist members of the public to understand when this mandatory exemption will apply. Also to ensure that all public bodies are aware that a mutual agreement between themselves and RFP proponents to keep information confidential does not meet all three parts of the statutory test in s. 21. While Acadia brought confidentiality to the attention of the Third Party Applicant in the REI and the RFP, a mere claim to confidentiality is not sufficient under the Act to withhold a Record under s. 21.
Key words: Trade secret, supplied implicitly or explicitly in confidence, a reasonable expectation of significant harm, onus, procurement process, mandatory exemption, unsuccessful proposal, Third Party Applicant, unsuccessful proponent
Statutes Considered: Nova Scotia Freedom of Information and Protection of Privacy Act s. 2, s. 3(1)(n), s. 20, s. 21(1)(a), (b) and (c), s. 45(3)(b).
Case Authorities Cited: Atlantic Highways Corporation v. Nova Scotia (1997), 162 N.S.R (2d) 27; 1997 CanLII 11497 (NS S.C.); Brookfield Lepage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services (2003), 230 F.T.R. 315; 2003 FCT 254 (CanLII); Chesal v. Attorney General of Nova Scotia, 2003 NSCA 124; 2003 NSCA 124 (CanLII); O'Connor v. Nova Scotia, 2001 NSCA 132; 2001 NSCA 132 (CanLII); Shannex Health Care Management Inc. v. Attorney General of Nova Scotia representing the Nova Scotia Department of Health, 2004 NSSC 54; 2004 NSSC 54 (CanLII); BC Order 331-1999; Vancouver Police Board's Refusal to Disclose Complaint-Related Records, Re, 1999 CanLII 4253 (BC I.P.C.); FI-05-54; Acadia University, Re, 2005 CanLII 45575 (NS F.O.I.P.O.P); BC Order 00-10; Liquor Distribution Branch Data on Annual Beer Sales, Re, 2000 CanLII 11042 (BC I.P.C.).