north central local government management association...foi advancements webinar court ordered costs...

North Central Local Government Management Association

April 11, 2019Carolyn MacEachern, Partner

Ethan Plato, Associate

FOI Update

FOI Advancements Webinar

Today’s topics: 1. Intentional disclosures and “Leaks”2. Serial FOI Requestors3. Procurement and Third Parties4. Proactive Disclosure5. White Rock OIPC Audit6. Public Hearings

Table of Contents

Intentional Disclosures and “Leaks”

What happens when a local government official goes ‘rogue’?Regardless of how information is leaked, a public body still has a responsibility to protect it!


Successful suit by the province at the request of the City of Nanaimo, for return or destruction of personal information in the possession of third partiesSections 73.1 and 73.2 of FIPPA provide that, after a failed written demand, the head of the public body may ask the Attorney General to petition the court for an order requiring the return of the personal information

BC (AG) v. Fuller, 2018 BCSC 1981


Multiple parties, including a former councillorand a member of the public, had posted two records containing personal information (email written to a consultant and letters written by a lawyer) They refused City’s demand to take the material down and return or destroy itCourt ordered the records returned and destroyed

BC (AG) v. Fuller


Court ordered costs against the third partiesNote that the court held that it doesn’t matter what kind of personal information is at stakeWhether documents record private, personal, confidential or embarrassing information, on the one hand, or anodyne and perfectly mundane information on the other, if information is recorded about identifiable individuals then the documents contain “personal information”

BC (AG) v. Fuller


A single persistent requestor can be extremely taxing on staff and resourcesUnsuccessful litigants or aggrieved former employees will often use the FOI process to find the ‘smoking gun’ that will vindicate their causeFirst work with requestor to narrow requests or provide a costs assessmentS.43 of FIPPPA allows a public body to ask permission from the OIPC to ignore a request or requestor

Serial FOI Requestors

Serial FOI Requestors

Vexatious LitigantBrought under s.18 of the Supreme Court Act“habitual, persistent, and without reasonable grounds”Full discretion of court to control its own processUsual remedy is litigant must seek leave before filing anything with court

s.43 PermissionAn FOI request needs to have been madeCan apply prospectively, but usually time-limited and not longer than a yearRare to prohibit all requests, but can limit number of open requests or hours spent by public body


Section 21 and third-party business interestsSuppliers don’t want their bids disclosed and this can result in drawn-out third-party consultation processes and OIPC reviewsGenerally, parties that contract with public bodies should expect disclosure of most contract information impossible to contract out of FIPPAYour procurement documents and processes should manage bidders’ expectations up front

Procurement & Third Parties


Order F18-28, among others, confirms section 21 is not a blanket protection for all negative effects on third parties doing business with governmentThree-part section 21 test is hard to satisfy and courts have upheld it on many occasionsGenerally, you have to show information is commercial, etc., that it was supplied in confidence, and that disclosure would significantly harm third party’s competitive position

Procurement & Third Parties

Non-Disclosure Agreements

Private organizations are requiring these more oftenThe ‘standard’ NDA for a business will not work in a public contextPublic obligations should be spelled out in these to avoid messes down the road


Section 25 requires all public bodies to proactively disclose information that is either:

about a risk of significant harm; orthe disclosure of which is clearly in the public interest.

No need for an access request to trigger this dutyOverrides every other section of FIPPAApplies to information, not recordsDecember 2018 guidance on section 25 issued by the OIPC

Public Interest Disclosure


Public Interest Disclosure

Your FIPPA “Head” makes the decision, but staff will need to work to bring information to the head for a decisionBest practice: develop a clear policy and processes for bringing information forward to your FIPPA head for decision on whether to release


OIPC audit of 2016 and 2017 FOI requests,Findings:

Didn’t meet legislated timelines in 46% of sampled filesAverage of 38 days to respond, with an average of 13 days to forward requests to City departmentsTook on average 22 days longer to respond to recurring applicants

Familiar themes from 2016 City of Vancouver audit

White Rock Audit (Audit & Compliance Report F18-02)


Recommendations:Fully document all requests from the original request to the closing of the file;Forward requests to departments to search for records as soon as possible; and Respond to all requests without delay and within legislated timelines

OIPC emphasised again that insufficient resources does not excuse delay

White Rock Audit


Can personal information collected at public hearings be collected/disclosed?

Collection authorized by sections 26(c) and 26(g)Disclosure authorized by section 33.2(a) and 33.1(1)(q)

Some personal information may be necessary for a public body to collect (like address to confirm residency) but not to disclose or broadcast

Public Hearings


Best practice is to notify individuals upon entering the public hearing that if they speak or make a submission, their information will be collected and may be disclosed publiclyUse signs at entrance to hearing and other noticesPut it on your website on the public hearing page

Public Hearings


If you are webcasting the hearing or posting submitted material on your website, make sure you include a consent provision in the notices, allowing such disclosure outside CanadaThis is due to section 30.1, which prohibits access to personal information outside of Canada, making webcasting problematic without notice and consentAwkward but unfortunately necessary to get this consent

Public Hearings


Disclose only the personal information that is necessary, such as a speaker’s name Note that documents submitted in the context of a public hearing may include personal informationConsider redacting home addresses before posting them

Public Hearings


Questions?


Carolyn MacEachernEmail: [email protected]: (604) 689 7400

Ethan PlatoEmail: [email protected]: (604) 689 7400

Contact Information

north central local government management association...foi advancements webinar court ordered costs...

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