A Newfoundland town’s attempt to block FOI law with a bylaw – and other recent notable appeals

A town tries to pass a bylaw to ignore provincial FOI laws and other notable access appeal decisions from January and February.

The time a town council tried to pass a bylaw to ignore an individual’s FOI requests

In September, 2023, an individual filed a freedom of information request with the Town of Victoria in Newfoundland. When the municipality didn’t respond within the legislated 20 days, the individual appealed to the information commissioner. Upon investigation, the commissioner learned that the relationship between the requester and the town was strained. In fact, the town claimed it never received the individual’s request. That’s because in August, 2022, the local council unanimously passed a motion to ignore current and previous access requests from the individual and to disregard any complaints the individual had filed with the Office of the Information and Privacy Commissioner (OIPC):

“Be it resolved, that with the exception of receiving a payment and issuing a receipt from the town’s accounting program, Council, the authority of the Town of Victoria, direct the Town Clerk Manager not to engage in any further communication by any means, with the identified individual [identifying information removed] associated with 3-ATIPP Requests For Information, 2-OIPC Investigations, to delete all emails received from the identified individual, and further resolved not to respond to any new ATIPP Requests For Information or OIPC Investigations.”

In his decision, Michael Harvey, the Information and Privacy Commissioner for Newfoundland and Labrador, directed the town to receive training on its access to information obligations and to amend its 2022 motion to remove any reference to ignoring the individual’s access request — among other things.

“The Town can no more enforce a motion selectively invalidating ATIPPA, 2015 than it can do so regarding the Highway Traffic Act. To think that it even contemplated such a measure is surprising and disappointing. It is particularly concerning that the Town thought not only to disregard access requests but also, prospectively, to not cooperate with OIPC investigations. Municipalities are a level of government, capable of passing and enforcing its own bylaws, and are therefore expected to uphold and respect the laws of this Province,” Commissioner Harvey wrote. 

The Globe reached out to the Town of Victoria for comment but did not receive a response.

The one where the Landlord and Tenant Board is forced to produce records about its tribunal hearings

An adjudicator with Ontario’s information commissioner has ordered the province’s Landlord and Tenant Board to produce adjudicative records about its tribunal hearings. As the decision notes, “the process for receiving access to adjudicative records has changed in recent years, to comply with the constitutional open court principle” thanks to a 2018 decision involving the Toronto Star. The newspaper challenged the way that freedom of information laws were being applied to records from adjudicative tribunals, which includes pleadings, hearing transcripts and evidence. In particular, the Star challenged the way that the "personal information" exemption was being used to shield adjudicative records from the public — a violation of the open court principle, which is essentially that court proceedings need to be public to maintain public confidence that the system is fair. The Star won. Afterward, the provincial government passed the Tribunal Adjudicative Records Act, which requires some tribunals to make adjudicative records available for proceedings that began after the new act became law, July 1, 2019. 

The disputed records relating to recent Landlord and Tenant Board appeals deal with information from hearings that took place between 2012 and 2019 — before the new legislation. 

The one that deals with government policies and the “harmful to law enforcement” exemption

In January, 2018, an individual filed a freedom of information request with Alberta’s Public Safety and Emergency Services — previously known as the Justice and Solicitor General ministry — for information relating to a hunger strike, prisoner complaints and investigations into those complaints. Some information was provided, but other records were withheld under various exemptions, including a section that protects information that — if disclosed — would be harmful to law enforcement. On that point, the ministry said the redacted information related to the Standard Operating Procedures for refusals to eat and other protocols. 

Adjudicator Carmen Mann rejected the public body’s claim and ordered this information to be released. The adjudicator concluded in many cases that the disclosure of the information itself was not likely to cause harm. “I am not persuaded that the harms described by the Public Body that would occur if this [information] was disclosed… Even if I accept that the harms described by the Public Body fall within the parameters of section 20(1)(m), I am not persuaded that the likelihood of these harms occurring is considerably above a mere possibility.”

The one where a private company tried — and failed — to withhold its environmental applications from the public

Last year, an individual filed an access request with Saskatchewan’s Ministry of Environment for documents relating to approval applications and technical proposals under environmental legislation for three specific companies. The ministry agreed to release records, but one of those companies — Louis Dreyfus Company Canada ULC — asked for a review of that decision, citing an exemption in the access law that protects “financial, commercial, scientific, technical or labour relations information that is supplied in confidence, implicitly or explicitly, to a government institution by a third party.” The applicant took issue with 523 pages of responsive records: a permit application relating to aquatic habitat, an industrial waste works construction application and a storm water management plan. 

In his decision, Saskatchewan Information and Privacy Commissioner Ronald Kruzeniski noted that Louis Dreyfus provided the disputed records to government under the the Environmental Management and Protection Act, which “clearly states that all ‘applications, information, data, test results, reports, returns and records and responses … are deemed to be public information.’ Therefore, making all such information a ‘matter of public record.’” Mr. Kruzeniski recommended the ministry release the records.

In an emailed statement, LDC told The Globe that the company “values its relationship with the Government of Saskatchewan and appreciates the public’s right to access information. In this case, LDC did not appeal the vast majority of information sought to be released by the Saskatchewan Ministry of Environment. Rather, LDC sought a review of the decision only with respect to the release of certain limited information contained within LDC’s submission that included commercially sensitive business information.”

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