Thursday, June 30, 2011

Simultaneous Disclosure and ATI by Greg

Under most circumstances, proactive disclosure of records under the control of a government institution or local authority can be seen as entirely in keeping with the purposes of access to information legislation. But in Investigation into the Simultaneous Disclosure Practice of BC Ferries (Re), 2011 BCIPC 21, Commissioner Denham addressed an example of a fact scenario where the public posting of records already subject to an access request may itself be contrary to the purposes of ATI legislation where it interferes with the interests of the applicant.

The case involved BC Ferry Services Inc. ("BC Ferries"), which engaged in a practice described as "simultaneous disclosure" in which it publicly posted responses to ATI requests before or while providing a response to the applicant. The BC Freedom of Information and Privacy Association ("FIPA") argued that this practice was contrary to the purposes of ATI legislation.

Commissioner Denham rejected FIPA's primary arguments to the effect that simultaneous disclosure breached specific provisions of the applicable legislation, concluding that ATI legislation did not set out an individual right of access intended to trump a public right of access (para. 24, 32) and that simultaneous disclosure does not breach an explicit duty to assist (para. 38-39, 44).

However, she also considered whether simultaneous disclosure was consistent with the purposes of ATI legislation as a whole, and held as follows in concluding otherwise at para. 62-63, 66:

The Supreme Court of Canada has affirmed the central role of journalists in a free and democratic society in a series of judgments. The Charter’s guarantee of freedom of expression has been held to imply a guarantee that journalists be able to access information about public institutions such as governments and the courts. Although the extent of the constitutional recognition of journalism is circumscribed by countervailing factors in particular cases, it is well settled that Canadian journalists play a particular role in our constitutional order. To the extent that my s. 42 discretion ought to be exercised in accordance with Charter values, a recognition of the importance of access by journalists to government information under access legislation leads to a valid objection to simultaneous disclosure.

Simultaneous disclosure has the effect of sharing the fruits of the journalist’s labour with the public at large. This deprives the media of the revenue upon which they depend for survival; essentially, it wastes the often considerable fees they must pay to obtain highly relevant information and in some instances pre-empts important investigative reporting by tipping off the subjects of such investigations through which they are being held accountable. This impairs the information-gathering function of the media.

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The net effect of simultaneous disclosure may be to discourage some applicants from using access legislation. This ultimately has a negative effect on the ability of citizens to hold public bodies accountable. Therefore, in those situations, the practice frustrates the purposes of access to information legislation.

Commissioner Denham went on to set out detailed principles and practices to reconcile proactive disclosure with the purposes of ATI legislation. In particular, she held at para. 140 that as a best practice, public bodies should delay posting ATI responses publicly for a minimum of 24 hours after providing the requested records to the applicant, as well as considering requests from applicants for a further delay.

In theory, the principles considered by Commissioner Denham may apply to ATI requests in other jurisdictions as well. However, it may be noted that Commissioner Denham delivered only recommendations rather than binding orders regarding the practices of B.C. Ferries, and it remains to be seen to what extent government institutions and local authorities may bear any obligation to comply with them.

This blog consists of general legal information only, and does not constitute the provision of legal advice to any person or organization. Please feel free to contact us at greg@fingaslaw.com if you require legal advice related to privacy or access to information.

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