The first part of this document provides orders, involving municipalities, that deal with issues specific to municipalities under the Freedom of Information and Protection of Privacy Act (FOIP or FOIP Act).
An individual (the Applicant) made an access request under the FOIP Act to the Town of Athabasca (the Public Body) for a legal opinion that was given to the Town Council by a particular lawyer with a named law firm, about a specific matter (the Requested Record).
The Public Body denied the Applicant access to the Requested Record under section 27(1)(a) of the FOIP Act on the basis of solicitor-client privilege. The Applicant sought a review of that decision by this Office. Subsequently, the Applicant requested, and the Commissioner agreed to conduct, an inquiry into the Public Body’s response.
The Adjudicator found that the Public Body had established on a balance of probabilities that solicitor-client privilege applied to the Requested Record. The Adjudicator further found that the disclosure of the Requested Record by the Public Body to the municipal inspector under the Municipal Government Act, was a limited waiver of solicitor-client privilege to the municipal inspector for a limited purpose and did not amount to a waiver of the privilege to the Applicant or to the world at large. The Adjudicator found that none of the other circumstances identified by the Applicant amounted to a waiver or loss of solicitor-client privilege by the Public Body. Finally, the Adjudicator found that if it was appropriate to review the Public Body’s exercise of discretion in withholding the Requested Record, the Public Body had properly exercised its discretion in deciding to withhold the Requested Record.
The Complainant made a complaint to the Commissioner that the former chief administrative officer (CAO) of the Regional Municipality of Wood Buffalo (the Public Body) had disclosed details of a whistleblower complaint he had made to the councillor who was the subject of the complaint.
The Adjudicator found that there was insufficient evidence in the inquiry to support the Complainant’s allegations and dismissed the complaint.
Municipality issue: This case determines that investigation for the purposes of potentially enforcing a by-law fell within “law enforcement” under the FOIP Act, hence the information collection at issue was authorized by section 33)b) of the Act (collection for the purposes of law enforcement); it was also authorized by section 33(c) – collection necessary for an operating program or activity of the public body.
An individual made a complaint to this Office that the City of Edmonton (the Public Body) collected her personal information in contravention of the FOIP Act. The Complainant alleged that a bylaw officer employed by the Public Body peered into her home, in the course of responding to an animal control complaint regarding the Complainant. The Complainant also alleged that the Public Body disclosed her personal information during the prosecution process, and to other departments in the Public Body, in contravention of the Act.
The Adjudicator found that the Public Body did not collect the Complainant’s personal information when the peace officer recorded the number of dogs she observed in a front window. The Adjudicator determined that this was not personal information of the Complainant. The Adjudicator also determined that if the information was personal information, the Public Body was authorized to collect it under sections 33(b) and (c).
The Public Body did record personal information of the Complainant during the investigation of the bylaw complaint. The Adjudicator found that the information disclosed by the Public Body to the Municipal Prosecutor in relation to the contravention of the Animal Licensing and Control Bylaw was the Complainant’s personal information. The Adjudicator determined that this disclosure was authorized under the Act.
The Adjudicator found that the Complainant did not substantiate her claim that her personal information was disclosed to other areas of the Public Body.
An individual (the Applicant) made a request to the County of Two Hills No. 21 (the Public Body) under the FOIP Act for “all records related to expense claims made by members of the County of Two Hills council”. The Applicant requested supporting documentation for each claim. The time period for the requested records was October 1, 2007 to March 15, 2013.
The Public Body provided the Applicant with a fee estimate in the amount of $1,000.00. The Applicant requested that the Public Body waive the fee on the basis that the records were in the public interest. The Public Body declined to waive the fee.
The Adjudicator found the Public Body failed to substantiate that the $0.25 per page that it charged to the Applicant for photocopying did not exceed the Public Body’s actual costs as required by the FOIP Act. The Public Body also did not provide sufficient information or evidence on how it calculated the estimated or actual cost of any of the additional items it charged the Applicant for. As a result, the Adjudicator ordered the Public Body to refund all fees that were paid by the Applicant.
Given the foregoing findings, it was not necessary for the Adjudicator to determine whether payment of any of the fee should be refunded on the basis that the records related to a matter of public interest.
The Applicant made a request under the FOIP Act to the City of Calgary (the Public Body) for copies of two reports created for the Public Body by an outside consultant in.
The Public Body responded to the Applicant, refusing to disclose the requested information, initially citing sections 17(1) (invasion of third party privacy), 20(1)(d) (confidential source of law enforcement information), and 27 (privileged information). The records at issue consist of a document described by the Public Body as a legal opinion (pages 1-22) and a Whistleblower Investigative Report (pages 23-32, the Report).
Later (at inquiry) the Public Body also applied sections 23(1)(b) (local public body confidences) and 24(1)(a) (advice from officials) to information in the Report.
The Adjudicator upheld the Public Body’s claim of solicitor-client privilege (section 27(1)(a)) over the entire record comprising pages 1-22 of the records at issue. The Adjudicator did not accept the Public Body’s claim of “public interest privilege” (section 27(1)(a)) over any of the information in the Report comprising pages 23-32 of the records at issue.
The Adjudicator determined that section 23(1)(b) (local public body confidences) did not apply to any of the information in the records at issue, as it did not reveal the substance of in camera deliberations of the Calgary City Council. While the Report appears to have been discussed by Council, revealing only the subject-matter of a discussion is not the same as revealing the substance of the discussion.
The Adjudicator found that the Public Body properly withheld some information under section 24(1)(a) (advice from officials) but that this provision did not apply to information that consisted of mere background facts.
The Adjudicator determined that section 17(1) required the Public Body to withhold personal information of the unnamed individuals (including complainants and witnesses) who participated in the whistleblower investigation that resulted in the Report. The Adjudicator also found that the personal information of the named individuals who were the subjects of the investigation must be withheld under section 17(1), in part because revealing the identity of the named individuals could also reveal the identity of the unnamed individuals.
The Adjudicator determined that the information that could reveal a confidential source of law enforcement information (section 20(1)(d)) was properly withheld under section 17(1). Information that did not identify an individual (and therefore to which section 17(1) could not apply) could not be withheld under section 20(1)(d).
The Adjudicator ordered the Public Body to disclose some additional information in the Report to the Applicant.
The second part of this document deals with orders involving municipalities that rely on general FOIP principles.
An Applicant made a request for information to the Municipality of Crowsnest Pass using a FOIP request form. He requested a review by this Office, stating that he had not yet received a response by the Public Body as required by the FOIP Act.
The Public Body stated that the request had been characterized by the Public Body as a Development Research Request, and that it has an alternate, routine disclosure process for fulfilling such requests, which is separate from its FOIP request process.
The Applicant stated that despite a phone conversation with the Public Body, he did not understand that the Public Body would be processing his request outside of the FOIP Act, and that the Public Body’s duties under the FOIP Act would no longer apply.
The Adjudicator found that the Public Body could not transfer the request to an alternate process outside the FOIP Act without informing the Applicant that the Public Body’s obligations under the FOIP Act, and the right of review afforded to the Applicant, would no longer apply.
The Adjudicator held that it is the Public Body’s burden to satisfy her that it properly transferred the request to another process. While she accepted that the Public Body intended to transfer the Applicant’s FOIP request to its alternate process, on the facts before her she could not conclude that it did so with the Applicant’s informed agreement. Therefore, she held the Public Body’s obligations under the FOIP Act continued to apply, including its obligation to respond within the timeframe set out in section 11.
An individual (the Applicant) made an access request to the Regional Municipality of Wood Buffalo. The Public Body extended the time for responding, but did not respond by the date set in the extension.
The Adjudicator reviewed the reasons provided by the Public Body for failing to respond within the timelines, including request volumes and staffing issues. She held that the Public Body had not provided her with enough information about the steps it took to try and respond to the Applicant’s access request within the timelines under the Act in order for her to conclude that it had made every reasonable effort to respond to the Applicant’s access request within the time limit set out in section 11.
An Applicant made an access request under the FOIP Act. The Applicant requested a review, indicating that no response had been received. The Public Body provided evidence that it had responded by email. There was nothing to suggest the Applicant had followed up with the Public Body regarding the failure to receive a response.
The Adjudicator held that it was reasonable for the Public Body to respond via the email address the Applicant had included in his FOIP request, and that had been used to communicate with the Applicant during the processing of the request. In the circumstances, it was also reasonable for the Public Body to assume its response had been received by the Applicant. Without something to alert it, the Public Body could not be expected to know or guess that there was an issue with its response and/or the Applicant’s receipt of its response.
The Applicant made an access request to the City of Spruce Grove for records relating to contracts from 2010-2017, specifically, information about the amounts paid for tenders and sole source contracts with the date awarded and winning supplier, as well as the total money paid to every supplier.
The Public Body provided the Applicant with a fee estimate of $5,525.00 and requested a deposit of $2762.50 in order to continue processing the request. The Applicant requested a fee waiver on the grounds of public interest. The Public Body denied the Applicant’s fee waiver request.
The Applicant requested that this Office review the Public Body’s response to his fee waiver request. Subsequently, the Applicant requested an inquiry.
The Adjudicator found that the request did not meet the test for a fee waiver in the public interest. Nor were there any factors that weighed in favour of a fee waiver on the grounds of fairness.
The Adjudicator accepted the Public Body’s estimate for the amount of time required to search for, locate, and retrieve responsive records. The Adjudicator found that the Public Body could not charge the Applicant to compile information from existing records into a list as he requested, as it is not a fee public bodies can charge for under the FOIP Regulation. The Public Body also does not have a duty under the Act to create a new record as requested by the Applicant.
The Applicant made an access request to the City of Edmonton for records relating to a decision to locate an LRT station at a particular site. The Applicant requested a review by this Office when the Public Body did not respond. During that review, the Public Body provided responsive records, with some information withheld under sections 24 and 25. The Applicant submitted a second request for a review of the Public Body’s application of those exceptions, as well as the adequacy of the Public Body’s search.
The Applicant subsequently requested an inquiry into the exceptions applied by the Public Body, and the adequacy of its search.
The Adjudicator found that the records of the searches conducted by the Public Body were insufficient to find that it conducted an adequate search for records. The tracking sheets used by employees conducting the searches were largely blank, such that the scope of the search was unclear. The Adjudicator ordered the Public Body to conduct another search for responsive records.
The Applicant made an access request to the Regional Municipality of Wood Buffalo for records “held by Human Resources about [him] from May 13, 2012 to present, including communications with WCB and various departments involved in the accommodation process”. The Public Body provided the Applicant with a fee estimate for the photocopying involved. The Applicant paid the fee and received records but believes that the Public Body did not adequately search for responsive records.
The Applicant requested a review of the Public Body’s fees and response to his access request. After the review, the Applicant requested an inquiry, which the Commissioner agreed to hold.
The Adjudicator found that the Public Body ultimately performed an adequate search, with the exception of the search performed by an employee identified by the Applicant as possibly having records. That employee is no longer with the Public Body so the Adjudicator ordered the Public Body to search relevant types of records and/or areas where that employee may have maintained responsive records.
The Adjudicator found that the Public Body failed to substantiate that the $0.25 per page for photocopying that it charged to the Applicant did not exceed the Public Body’s actual costs, as required by the Act. The Adjudicator therefore ordered a refund of some of the fees.