A disclosure order for name of cyclist involved in accident – and other notable March appeals

As part of due diligence in preparing the completed FOI database, we had to read each of the summaries we had collected. We did this out of an abundance of caution, in case an institution accidently sent us something they shouldn’t have. (For example, we found a child’s name had been improperly redacted in a sensitive file.) Although this job was incredibly tedious, it was also fascinating, because we got a real sense of the information Canadians were asking for.

One common request we saw dealt with individuals asking for the names and contact information of people involved in car or bike accidents. Often, the public institutions denied these requests — at least in part. So it was interesting to see this issue come up at the appeal stage in Ontario. Meanwhile, in Nova Scotia, another business being paid tax dollars for public work wanted to shield information from the public.

Here are two noteworthy FOI appeals published in March.

The one about an accident between a cyclist and a pedestrian

An individual filed a freedom of information request with the Windsor Police Services Board, for an accident report connected to a Jan. 1, 2023, incident between a cyclist and a pedestrian. The individual’s lawyer has alleged that their client — the pedestrian — was seriously injured by a cyclist. No charges were laid. The police granted partial access, but withheld the name and address of the cyclist under the “personal information” exemption, as the cyclist did not consent to having the information released. In the appeal, the pedestrian’s lawyer argued that “common sense, let alone natural justice should require the disclosure of the identity and contact information of a party who causes such injury to another human being.” Both the police and the appellant’s lawyer highlighted previous cases that they argued supported their position. The cases are linked in the decision.

In the end, adjudicator Chris Anzenberger ordered the police to release the information: “Based on the information provided by the appellant, the incident resulted in significant injuries to her, and the appellant submits that, aside from any potential legal claims, this gives rise to a reason that the affected party should be identified to the appellant. I agree with this analysis in this particular case, and find that this raises an inherent fairness issue that, while not determinative, favours disclosure.”  

Another one where a third-party business that does work for government thinks it can do so in secrecy

Acadia University received an access request for copies of audits, reports and analyses prepared by a third-party business (third party) for Acadia University (public body). The university identified a 55-page document and a six-page document and initially planned to release the information to the applicant, but the third party objected, claiming the information would reveal trade secrets. Acadia University withheld the records in full.

In her decision, information commissioner Tricia Ralph asked the question: “The Nova Scotia Government engaged the third party to provide financial advisory services to the public body. It is evident from the records that the third party conducted analyses of the information supplied to it by the public body. The third party also provided financial and managerial advice on the responsive records. But can the analyses be said to be a ‘trade secret’?” Her conclusion was no. “Aside from the position put forward that the records contain proprietary third party information, I was provided with no explanation of what specific information on the responsive records is proprietary and how,” she wrote.

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