The number of Access to Information Act request being handled by the federal government continues to grow. So does the appetite for redactions. The Toronto Star recently reviewed 28,000 requests filed between June 2013 and July 2014, and found that only 21 per cent were returned free of redactions. With such a high rate of redaction (which means a high rate of privileged or personal information in the collected disclosure) there is a significant risk of inadvertent disclosure – remember the Canada Revenue Agency debacle last year?
If there is an inadvertent disclosure, what is the remedy? Is it possible to turn back the clock? Maybe, but once a document is made public, there is often no remedy that can undo the harm already done. What is to gain in ordering the document returned if it is in the public domain?
This situation was recently addressed by the California Court of Appeal in Newark Unified School District v. Superior Court (07/31/15, No. A142963), where the court concluded that because the District sought return of the inadvertently produced documents within hours of their release, and there was no actual proof their confidentiality had been irretrievably compromised, there was no reason to conclude that effective relief could not be granted.
This logic is just as sound in the Canadian context. You can expect a public body to face an uphill battle in clawing back documents disclosed public access legislation without proof that no harm is yet done. Once the harm is done, the result may be quite different. Being diligent may be a prerequisite to any chance of success.