On July 2, 2015, the Information and Privacy Commissioner for British Columbia, Elizabeth Denham, issued Investigation Report F15-02, focussing on the application of Section 25 of the BC Freedom of Information and Protection of Privacy Act ("FIPPA"), which requires government to disclose information about health, safety, environment and other matters of public concern, where there is a risk of significant harm or the information is clearly in the public interest. The investigation report was initiated to determine whether the Ministry of Energy and Mines and the Ministry of Environment had complied with Section 25 in light of the Mount Polley mine tailings pond dam failure. The Commissioner found that the government had complied with Section 25, and focussed the majority of her report on the interpretation of Section 25. In doing so, she abandoned the prior jurisprudence and used the opportunity to provide a new interpretation of Section 25, which will govern going forward.
Section 25 of FIPPA requires public bodies to, without delay, disclose to the public, or an affected group, information about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or the disclosure of which is, for any other reason, clearly in the public interest.
Past interpretations of prior Commissioners had interpreted the legislation, and in particular, the introductory words in Section 25(1), "without delay", as requiring a temporal urgency, an urgent and compelling need for public disclosure. Commissioner Denham disagreed, finding that, having regard to the language of Section 25 as a whole, the requirement for disclosure "without delay" only relates to the timing of the disclosure duty itself. There is no longer a need for a temporal urgency or an urgent and compelling temporal need for public disclosure in order for Section 25 to apply.
Next, the Commissioner went on to consider what is "in the public interest". She concluded that the public interest is that which affects or is in the interests of a significant number of people, that transcends the private interests, is of concern or interest to the public. Each case must be analyzed on its facts and circumstances. Examples included whether information contributes in a substantive way to information already available to facilitate expressing public opinion and making political choices, whether it contributes in a meaningful way to holding a public body accountable for its actions or decisions, examples such as public safety issues relating to the operation of nuclear facilities, records containing information about contributions to municipal election campaigns.
The Commissioner directed that, in future, the BC government diligently and properly assess the new interpretation of Section 25 to consider and disclose information that is clearly in the public interest. She also recommended that public bodies develop policies providing guidance to employees and officers about the obligations under Section 25 of FIPPA.
The Commissioner, having been concerned about the proper interpretation of the public interest disclosure provision in FIPPA, used this investigation report to clarify the obligations of government, which she notes to be a powerful obligation, overriding all other sections of FIPPA. The Commissioner's expectation will be that government will follow the guidance going forward to recognize their mandatory obligation to disclose information if it is clearly in the public interest, or is information about a significant risk to the environment, health or safety of the public.