Aug 9, 2023
Table of contents
Dutremble c. Hydro-Québec, 2023 QCCAI 3
Read more about the case: Dutremble c. Hydro-Québec, 2023 QCCAI 3
The applicant applied to Hydro-Québec for access to documents concerning the Chute-Bell dam. The agency argued that the information was still in dispute and its disclosure would have the effect of reducing the effectiveness of a program intended for the protection of property or persons – in this case, the 2019-2023 Safety Program, which is intended to protect its dams – as well as undermining the security of the state.
The request to overturn HQ’s refusal to release the documents was dismissed. HQ relied upon section 29 of the Act respecting Access to documents held by public bodies and the Protection of personal information. Its evidence demonstrated the sensitive nature of the information at issue and showed that the disclosure of this information would have the effect of reducing the effectiveness of its security program. Further, the information is sufficiently specific that a person could exploit it. Disclosing it could allow malicious persons to commit acts that could put the infrastructure at risk and have foreseeable consequences, including dam failure, that would have a direct effect on the safety of people as well as on road infrastructure, including the bridges on Highways 148 and 50.
The safety exception relied upon to deny access is rarely used, but may become more prevalent with growing concerns about the safety of critical infrastructure. In certain cases, the exception may apply to an access request relating to information for which there is a safety concern, although the extent is likely to depend on heavily factual determinations.
Ville de Laval c. Savard, 2022 QCCQ 8465
Read more about the case: Ville de Laval c. Savard, 2022 QCCQ 8465
The CAI ordered the appellant City of Laval to provide the respondent Mr. Savard with excerpts of a legal opinion within the meaning of section 31 of an Act respecting Access to documents held by public bodies and the Protection of personal information. The legal opinion was written by a lawyer in the context of the admissibility of a complaint for psychological harassment filed by Mr. Savard against the City.
The City argued that once a document qualifies as a legal opinion within the meaning of section 31 of the Act, the legal opinion as a whole becomes indivisible as protected by solicitor-client privilege, and no excerpts can be communicated. The Court of Québec partially granted the appeal from the decision of the CAI. The Court first determined that excerpts of a document covered by solicitor-client privilege may be disclosed to a party making a request for access. The fact that a document is covered by solicitor-client privilege does not make it indivisible. That said, in this case, the excerpts of the legal opinion to which the CAI had granted access were mostly covered by solicitor-client privilege and the CAI erred in law by ordering the City of Laval to disclose them, except for one excerpt relating to a description of the parties.
While the CAI and Court of Québec are sensitive to privilege claims, there is no hard-and-fast rule that a document covered by solicitor-client privilege is indivisible. In certain cases, excerpts may be disclosed to a third party. The party objecting to disclosure will need to establish that the relevant information is so integral to privileged legal advice that it cannot be extracted without waiving privilege.
Saskatchewan (Ministry of Labour Relations and Workplace Safety), Re, 2023 Carswell Sask 99
Read more about the case: Saskatchewan (Ministry of Labour Relations and Workplace Safety), Re, 2023 Carswell Sask 99
The Ministry of Labour Relations and Workplace Safety (LRWS) received an access to information request under The Freedom of Information and Protection of Privacy Act, SS 1990-91, (FOIP) from the applicant, who was the employer of an injured worker. The request was regarding documents related to a workplace injury. LRWS released some documents, but not all. LRWS withheld documents under subsections 22(b), 22(c), 29(1), 15(1)(c), 15(1)(e), 19(1)(b) and 13(1)(a) of FOIP and subsection 27(1) of The Health Information Protection Act, SS 1999 (HIPA). The Saskatchewan Information and Privacy Commissioner received a request for review from the applicant. After that request, LRWS issued a second revised decision altering its claim that subsections 13(1)(a) and 22(b) of FOIP applied.
The Commissioner considered each section individually. Regarding subsection 27(1) of HIPA, the Commissioner ruled that there was no consent to release these documents by the injured worker and therefore LRWS applied this section properly for the majority of documents. The Commissioner did rule that one document must be released, as it was information provided by the applicant and it would be an “absurd result” if the LRWS did not provide these documents. Regarding subsection 15(1)(c) of FOIP, the Commissioner again applied the “absurd rule,” as the applicant was involved in the creation of the documents that were being withheld (for example, they were contracts the applicant had signed or emails they were copied on). Regarding subsection 29(1) of FOIP, the Commissioner ruled some documents were incorrectly withheld, as publicly available information and individuals’ signatures applied in a work context are not personal information. The names of witnesses to the injury were also not considered personal information. The Commissioner found some documents, including addresses that would not have been known by the applicant, were protected under subsection 29(1) of FOIP.
Under the “absurd rule,” if the result of the ruling of the Commission leads to an absurd result, such as the prevention of the disclosure of information to an applicant which the same applicant has access to, then that result should be avoided.
Brightwater Senior Living, Re, 2022 CarswellSask 535
Read more about the case: Brightwater Senior Living, Re, 2022 CarswellSask 535
On October 5, 2021, the applicant submitted an access to information request to Brightwater Senior Living for their deceased mother’s medical records. Brightwater responded to the applicant’s request on December 14, 2021. The applicant was dissatisfied with the time Brightwater took to respond to the request. On February 3, 2022, the Office of the Saskatchewan Information and Privacy Commissioner informed the applicant and Brightwater that it would be undertaking a review.
The Commissioner found that Brightwater had not responded to the applicant’s request within the timelines legislated under s. 36(1)(a) of the Health Information Protection Act. Brightwater submitted that it initially did not respond to the request because the applicant was not listed as power of attorney or any point of contact for the resident. The Commissioner held that Brightwater was required to respond to the request setting out its reasons for refusing access within the legislated timelines.
Where a trustee believes a person requesting access to information does not have the right to access the requested information, it must respond to the request setting out its reasons for refusing access within the legislated timelines.
Cain v. Canada (Health), 2023 FC 55
Read more about the case: Cain v. Canada (Health), 2023 FC 55
The Federal Court considered an application under the Access to Information Act for the disclosure of postal codes and cities for licensees entitled to grow medical marijuana. Health Canada agreed to release only the first digit of the postal codes – even though the applicant sought access to the first three characters (the Forward Sortation Area) – because of the “serious possibility” that the second and third characters of the postal codes could be linked with other information to identify specific individuals.
The Federal Court dismissed the application. The Court reasoned that for some regions, a relatively small number of people live within a single Forward Sortation Area, and there was a risk that the first three characters could be combined with other information that is publicly available to identify a particular licensee. The Court found that privacy rights must prevail. The evidence demonstrated a serious possibility that disclosing the requested data would risk exposing very sensitive information about individuals. This justified Health Canada’s refusal to disclose the second and third characters of the postal codes. The Federal Court also found that Health Canada was not required to undertake further “de-identification techniques” to disclose more of the information.
The Federal Court relied on jurisprudence from the Supreme Court of Canada, and the intention of Parliament, to find that privacy must prevail in a clash between access to information and individuals’ privacy rights. On the facts of this case, the Federal Court was persuaded that the risks to privacy “are simply too great.”
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