privacy commissioner refusal to access information represented by lock on filing system

Re Prince Edward Island (Department of Justice and Public Safety), 2017 Carswell PEI 42, PEI Information & Privacy Commissioner

Pursuant to section 7 of Prince Edward Island’s Freedom of Information and Protection of Privacy Act (“FOIPP”), an unnamed person – here called “the Applicant” – requested access to information concerning a contract to install an Offender Telephone Call Control and Video Visitation System. A number of documents were withheld and others were redacted before release. The Applicant requested a review of the Department’s decisions.

The Prince Edward Island Information & Privacy Commissioner (“the Commissioner”) considered three issues in her review of the request and disclosure. First, she considered whether the information withheld due to its having been supplied in confidence from another provincial government was properly withheld. Second, she considered whether the Department properly withheld the information that it chose not to disclose on the basis that it would reveal consultations involving officers or employees of a public body. Finally, she considered whether the Department was correct in withholding the records it did with regard to the business interests of a third party. Since the decision under review was of the Department’s choice to withhold certain records, the burden of proof indicating that it was correct to do so fell on the Department. For the purpose of this article, we focus on the second issue, which relates to the Department’s decision not to release the evaluator team’s individual comments.

The Department’s decision not to reveal certain information pertaining to deliberations or consultations in which public body employees participated, was based on subsection 22(1)(a) of FOIPP. This subsection relates to advice from officials, and the records partially withheld were Evaluation Scoring Tools, composed in spreadsheet form. The Department disclosed the columns relating to evaluation criteria and scoring, but withheld the evaluation team’s comments.

The Commissioner noted that decisions concerning section 22 involve a two-step process:

  1. the public body must determine whether the exception applies to the information at issue, and if so
  2. the public body must promptly exercise its discretion in determining whether that information will be disclosed or withheld.

The Commissioner stated that prior relevant decisions had upheld that in order to satisfy the exception, the views expressed must be sought for the purpose of doing something. She found that in this case, the evaluators’ views were sought for the purpose of deciding upon bid proposals, satisfying the definition of ‘deliberation.’ Thus, she concluded that the Department had properly withheld elements of those records.

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case.  For any particular legal problem, seek advice directly from your lawyer or in-house counsel.  All dates, contact information and website addresses were current at the time of original publication.