This Practice Note provides direction to
- public bodies under the Freedom of Information and Protection of Privacy Act (FOIP Act) and Access to Information Act (ATIA);
- organizations under the Personal Information Protection Act (PIPA); and
- custodians under the Health Information Act (HIA)
when making submission to an inquiry addressing a response to an access request under the relevant Act.
In this document, “Commissioner” means the Commissioner or the Commissioner’s delegated Adjudicator. Public bodies, custodians and organizations are referred to as “respondents” for the remainder of this publication.
Following an inquiry into respondent’s decision to apply exceptions to access in responding to an access request under the FOIP Act, ATIA, PIPA or HIA, the Commissioner will determine whether:
- The mandatory exceptions cited by the respondent apply to the relevant information;
- The discretionary exceptions cited by the respondent apply to the relevant information;
- If any discretionary exceptions apply, whether the respondent properly exercised its discretion to apply that exception.
Respondents may not be permitted to raise the application of new discretionary exceptions at the inquiry phase.
Exceptions to access under the Acts each have specific requirements that must be met in order to be applied. Respondents applying exceptions to access should ensure that their submission addresses each component of these requirements. Each application of an exception must be justified. Submissions that fail to address each component, or that do not address how the specific information at issue satisfies each component will not establish that the exception applies.
Submissions should include two main aspects: arguments and information about the law, and arguments and information about the factual context of the information at issue.
Arguments and information about the law
Arguments and information about the law include citing the applicable tests for applying an exception, as set out in past Orders and court decisions. This part of the submission may be brief for each exception applied, especially where the interpretation of the exception and tests to be applied are settled.
Where an exception has not been considered in past Orders or court decisions, the respondent should explain how it believes the exception applies. Similarly, if a respondent disagrees with how an exception has been applied in past Orders, the respondent should explain how it believes the exception should be applied and why. Respondent should provide support for such arguments, such as case law.
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Arguments and information about the factual context of the records
Arguments and information about the factual context of the records includes information that shows why an exception applies to the particular information at issue.
Many exceptions to access can be applied only in particular circumstances. For example,
- Under the FOIP Act and the ATIA, some exceptions to access apply only where the relevant information is created by or for individuals holding specific positions or is in correspondence between individuals holding specific positions[1].
- Under PIPA, some exceptions apply to personal information that was collected in specific circumstances, such as for an investigation[2] or information collected by mediators in the course of conducting a mediation[3].
- Under the FOIP Act, ATIA, HIA, and PIPA, several exceptions apply where the disclosure of the relevant information could reasonably be expected to result in a specified outcome[4]. The Supreme Court of Canada has set out the evidentiary standard to be used in access-to-information legislation wherever the phrase “could reasonably be expected to” appears: there must be a reasonable expectation of probable harm, and the party claiming the exception must provide sufficient evidence to show that the likelihood of the specified outcome is considerably above a mere possibility[5].
It is important for respondents to provide sufficient factual information to show that the circumstances set out in each exception being applied are present in each case. Relevant information may include the position titles and responsibilities of individuals involved in creating and receiving the information, and details of the circumstance in which the records were created.
Respondents applying exceptions that include the phrase “could reasonably be expected to” must provide sufficient evidence to meet this evidentiary standard. Respondents should clearly explain how the information being withheld could lead to the stated outcome; merely assertions are generally insufficient.
Parties may not succeed in an inquiry if they do not provide evidence to support their arguments. It is not sufficient to provide the Commissioner with records and leave it up to the Commissioner to try to draw from the records the facts on which the decisions will be based. The Commissioner requires that persons representing the public body, custodian or organization provide evidence speaking to the contents of the records, for example by explaining how each part of a record for which an exception to disclosure is claimed falls within the exception.
If the success of an argument depends on underlying facts, providing the argument alone is not sufficient. The underlying facts must be established by evidence. As well, evidence should not be provided in the form of unattributed assertions made in the context of an argument. If a fact is being put forward, it must be shown how this fact is known to be true (e.g., by way of a statement, preferably sworn, of someone who knows the fact, or by other objective evidence, such as documents).
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Points to address in drafting a submission
- Clearly identify each part of a record that has been withheld from disclosure and address each exception applied.
- Review previous Orders [or relevant Interpretation Bulletins] to determine how the exceptions have been applied, and how those interpretations apply to the information being withheld.
- Clearly state how each provision, and the relevant tests for each provision, apply to the information being withheld.
- This should be done on a record-by-record, page-by-page, or line-by-line basis, as appropriate.
- Respondents may identify and group similar information in the pages in their arguments.
- Where the exception applied is a discretionary exception, the respondent should include a discussion of the exercise of discretion in applying that exception to withhold information.
- The exercise of discretion should be addressed on a record-by-record, page-by-page, or line-by-line basis, as appropriate.
- The respondent should ensure it addresses all relevant factors, and explain why they do or do not apply in the specific circumstances of the information/record.
- Where the exception applied requires proof that a record was created for a particular purpose, or was created by or for particular positions, provide the relevant facts to support the application of that exception.
- Where the respondent is providing an affidavit in support of its factual or legal claims, ensure that the affidavit includes the requirements set out in Practice Note: Providing Affidavits and Other Evidence.
- Ensure each issue set out in the Notice of Inquiry is addressed.
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[1] For example, sections 27(1)(b) and (c) of the FOIP Act and 32(1)(b) and (c) of the ATIA
[2] For example, section 24(2)(c)
[3] For example, section 24(2)(e)
[4] For example, sections 20(1) of the FOIP Act and 21(1) of the ATIA; section 11(1)(a) of the HIA; section 24(3)(a) of PIPA
[5] Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (CanLII), [2012] 1 SCR 23
