Practice Note – Late Raising of Discretionary Exceptions – ATIA

In this document, “Commissioner” means the Commissioner or the Commissioner’s delegated Adjudicator or authorized Senior Information and Privacy Manager.

This Practice Note clarifies whether and when the Office of the Information and Privacy Commissioner (OIPC) will consider a new discretionary exception to access raised by a public body after an applicant has requested a review.

Rationale for the clarification

Past Orders of this office have found that in an inquiry, public bodies cannot raise the application of discretionary exceptions under the Freedom of Information and Protection of Privacy Act (FOIP Act) that were not originally applied in the public body’s decision to the applicant, where raising the new exception would result in delay or prejudice to other parties.

It has become increasingly common for public bodies to raise new exceptions to access during the review or inquiry processes. At times, public bodies have wholly reprocessed responsive records following the review, resulting in new decisions that bear little resemblance to those originally communicated to the applicant that were subject to the review.

It is the head of the public body, or the delegate of the head, that is assigned the responsibility of determining whether to withhold information in response to an access request. When the head of a public body, or the head’s delegate, makes a decision regarding access, that decision must be communicated to the applicant. The applicant is given 60 business days under the Access to Information Act (ATIA) to assess the response and decide whether to request a review. It is unfair to the applicant for the public body’s response to become a moving target.

Further, the ATIA imposes new limits on the time for the OIPC to complete the review process under that Act. In order to meet those time limits, the office has taken steps to identify and minimize delays in the review process. The late-raising of new discretionary exceptions reduces the timeliness and effectiveness of the settlement phase of the review, during which the parties are contacted by this office to attempt to settle the issues, or narrow and confirm the issues for a subsequent inquiry.

That said, from time to time a public body’s response to an applicant may contain an error or omission that the public body later corrects. The OIPC may accept such corrections, where it is appropriate to do so.

Given the above, the OIPC is clarifying when and whether the OIPC will consider a public body’s decision to apply a new discretionary exception to access that was communicated to the applicant after the applicant has delivered a request for review to the public body and OIPC.

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OIPC approach to late-raising discretionary exceptions to access under the ATIA

Under the ATIA, applicants seeking a review of a public body’s decisions regarding access must deliver a copy of their request for review to the OIPC and the head of the Public Body. Once the OIPC has confirmed the issues for the review, the OIPC will send an acknowledgement letter; this letter will set out the issues to be addressed in the settlement phase of the review.

If the public body has amended its response to the applicant’s access request after the applicant delivered their request for review, the public body must ensure that the new response was communicated to the applicant as required under the Act. A copy of this response must also be provided to the OIPC, quoting the file number provided in the acknowledgement letter.

Any amended response that includes a new application of a discretionary exception, that is communicated to the applicant and OIPC before the acknowledgement letter is issued will generally be considered in that phase of the review if the applicant is interested in pursuing it. Any amended response that includes a new application of a discretionary exception that is communicated to the applicant and OIPC after the acknowledgement letter is issued might not be considered.

If an inquiry is subsequently conducted into the matter, the adjudicator will consider whether to permit a public body to raise a new discretionary exception to access.

In determining whether to permit a public body to apply a new discretionary exception to access, the Commissioner will consider:

• the impact of the new claim on the integrity of the review process;
• the prejudice to the parties in either permitting or refusing to consider the new discretionary exception;
• the public interest in either permitting or refusing to consider the new discretionary exception; and
• any other extenuating circumstance.

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