In Consumers’ Co-operative Refineries Limited v The City of Regina and Ministry of Environment, 2016 SKQB 335 (the “CCRL Decision”), the Saskatchewan Court of Queen’s Bench recently confirmed that appeals arising from recommendations by the Information and Privacy Commissioner of Saskatchewan (the “Commissioner”) are true de novo proceedings – that is, a proceeding where an entirely new record can be adduced if desired and the Court can treat the matter entirely anew.
REVIEWS BY THE COMMISIONER
The Commissioner has broad powers to review and make recommendations regarding access requests pursuant to The Freedom of Information and Protection of Privacy Act (the “FOIP”) and The Local Authority Freedom of Information and Protection of Privacy Act (the “LAFOIP”).
In particular, certain parties have a statutory right to request reviews by the Commissioner if they are dissatisfied with a public body’s response to access requests. For example, such reviews can be requested by an applicant who has sought access to records from a public body, or by a third party whose interests are affected by the records subject to the request. If a review is conducted, the Commissioner will issue a report including recommendations for the public body (such as continuing to withhold records or releasing a complete or redacted version of the records).
RECOMMENDATIONS BY THE COMMISSIONER
The Commissioner’s recommendations are not binding on public bodies. However, a public body has 30 days from receiving a final report to make a decision with respect to whether or not the public body will follow the Commissioner’s recommendations. Once this decision is made, the public body is required to notify all parties involved in the review of its decision. Such parties then have 30 days from receiving the decision to appeal to the Saskatchewan Court of Queen’s Bench.
THE CCRL DECISION
In the CCRL Decision, Justice Keene clearly endorsed the position that appeals pursuant to the FOIP and the LAFOIP are true trials de novo – that is, the Court can independently conduct a fresh consideration of all of the evidence, including any new evidence adduced, without any need to give deference to the Commissioner’s recommendations.
Justice Keene went on to consider the response of two public bodies to the Commissioner’s recommendations regarding an access request for confidential drafts of a major hazards risk assessment report that were commissioned as part of obtaining regulatory approval for a refinery expansion (the “MHRA Reports”). The MHRA Reports contained detailed descriptions of the refinery as well as hypothetical modelling of several scenarios. CCRL took the position that numerous exemptions against disclosure of third party information applied to the MHRA Reports, including that the MHRA Report was comprised almost entirely of technical, financial and commercial information as defined by the legislation. Justice Keene agreed and went on to consider whether a “public interest” override applied which would displace the exemptions.
CCRL argued, in reliance on supplemental expert evidence it had adduced, that there was greater public interest in not disclosing the MHRA Reports given that they could be used as a detailed playbook to inflict maximum damage in the most efficient manner to CCRL’s refinery (an important critical infrastructure facility analogous to nuclear facilities that are not required to disclose all plant information).
Justice Keene found that, while the public would naturally be interested in knowing the consequences of hypothetical scenarios identified in the MHRA Reports, the legislation invites a balancing of the competing interests of the public and the third party. Justice Keene concluded that the public interest in the records did not outweigh potential loss or prejudice to CCRL’s interests, and that over-disclosure of the reports could in fact be harmful to public safety.
In the end result, Justice Keene concluded that a highly redacted version of the MHRA Report was reasonable and accommodated the public interest.
Public bodies and third parties involved in reviews by the Commissioner or appeals relating to such reviews may wish to seek experienced legal counsel to guide them through the process and to protect their commercial and other interests to the extent possible, including by assisting in the appropriate redaction of records and in the preparation and presentation of appropriate submissions and evidence.