Noteworthy November appeals decisions show two takes on the public-interest override

Freedom of information laws in many Canadian jurisdictions contain public-interest overrides. This is a section in the legislation that gives access applicants an opportunity to argue for a record’s release, even if it is protected from disclosure under one of the law’s exemptions, such as advice to government, trade secrets or personal information. The public-interest override exists as recognition that some information is so crucial to public safety and public discourse that it’s worth some harm that might come from disclosure. 

Many FOI requesters who file appeals try to make a public-interest argument, but the bar is very high. Two cases in November dealt with this section, and they had very different outcomes.

The one with the successful public-interest override argument

An engineering association in British Columbia filed an FOI request with the Metro Vancouver Regional District for records that included a copy of a report that had been prepared for WorkSafeBC. The document dealt with an incident at a dam that led to two deaths. The municipality withheld some information under various exemptions, including a section that protects advice and recommendations to government, a section that deals with law enforcement and a section that protects the privacy of third parties.

The association filed an appeal with the information commissioner, arguing s. 25(1):

Information must be disclosed if in the public interest: Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information • about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or • the disclosure of which is, for any other reason, clearly in the public interest.

The public body, meanwhile, argued s. 19(1), which is that disclosure could harm public safety.

In the decision, adjudicator Jay Fedorak noted: “Because s. 25 overrides all other provisions in FIPPA, previous orders have found that it applies in only the clearest and most serious situations. Section 25 sets a high threshold, intended to apply only in significant circumstances.” Mr. Fedorak found that the engineering association’s appeal met that bar, and the decision unpacks why as well as some of the case law.

The one with the unsuccessful public-interest override argument

This is a bit of an odd one in that the public institution – a Northwest Territories school district – decided to be transparent and release surveillance video of a high-profile incident between a teacher and a child, but after an investigation, the Information Commissioner concluded they should not have disclosed the footage. The incident garnered significant media coverage and unrest in the community. The employee was fired. The school board received an access request for a copy of the footage and quickly released the information. Subsequently, a complaint was filed with Information Commissioner Andrew Fox’s office.

The appeals decision stated that the school district argued it was “focused on trying to maintain the ‘trust within the community’ that it had made efforts to rebuild over some years. The public body felt this trust was at risk” and thus disclosure under 5.1(1)(b), which is that information shall be disclosed when it is “clearly in the public interest,” was justified.

But the Information Commissioner noted that “the public interest is not synonymous with what interests the public.” In his analysis, Mr. Fox found that “there is no indication that the videos relate to a systemic problem.” He found that the videos contained the personal information of the individuals depicted in the footage.

“In my view, protection of personal privacy is not only a key part of the Act, it is an important component of the public interest,” Mr. Fox wrote. “The potential negative effect of an unreasonable invasion of personal privacy and the denial of the opportunity to provide full submissions regarding the impact on the third party’s personal privacy are aspects that weigh against the disclosure being in the public interest. As discussed above, the purported benefits of disclosure are not well founded.”

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