FOIPP Public Interest Override a Dead Letter?

A number of Canadian jurisdictions have a “public interest override” in their Freedom of Information and Protection of Privacy (FOIPP) legislation.

In Alberta, this imposes a duty on a public body to immediately disclose information that is “clearly in the public interest” despite any other provision in the Act. Section 32 FOIPP reads:

32(1) Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people, to any person or to an applicant

(a) Information about a risk of significant harm to the environment or to the health or safety of the public, of the affected group of people, of the person or of the applicant, or

(b) Information the disclosure of which is, for any other reason, clearly in the public interest.

(2) Subsection (1) applies despite any other provisions of this Act.  (underlining added)

Alberta’s Information and Privacy Commissioner, in an investigative report released last year, noted that most public bodies are barely aware of the public interest override.

Ironically enough, it appears the Public Interest Commissioner (PIC), the public body that administers public sector whistleblower protection in Alberta, is among that group.

The Record Requested

In the course of a periodic review of Alberta’s whistleblower Act, the Resource Stewardship committee asked the PIC to prepare a report responding to recommendations for reform posited by various external stakeholders.

I requested this report a couple weeks in advance of the hearing in which it would be discussed, but I was told by the PIC office it would be “inappropriate” to release it before the committee did.

But good manners are not an excuse for avoiding a legal obligation.

I submitted a formal access to information request and was, again, denied the document. The PIC now relied on two subparagraphs in section 4 of FOIPP (neither of which seem applicable to this request – but that is another story) to claim that this record was outside of the Act.

Public Interest Override

The section 32 public interest override applies “despite any other provisions in this Act.” So, section 4 ultimately does not matter.

In the PIC letter denying access, no mention is made of the public interest override.

I followed up asking for the PIC’s position on the public interest override and whether they had guidelines for implementing this obligation. The reply was that I, as the person requesting the document, had to make the case for why the public interest override should apply.

The PIC response confirms that her office – and likely that of many other public bodies – ignores this obligation. Moreover, the PIC misinterprets s. 32 by asking requesters to make a case for why it should apply.

As the OIPC notes in its report, there is uncertainty about what constitutes “clearly in the public interest.” This is not new. Courts have long struggled with distinguishing between that which is in the public interest and that which is merely of interest to the public, e.g. gossip about public figures.

But this is no such case. The commissioner’s views and influence on possible amendments to the Act during a legislative review and debate is clearly in the public interest. It is hard to imagine something that is more squarely in the public interest.

The only mitigating consideration is whether there is some competing public interest that augurs for withholding access. Many exceptions in FOIPP are premised on a rationale that a greater public interest is served by withholding access, e.g., shielding the advice of public servants to encourage free and frank discussion of ideas during policy discussions.

But there is no hint of that here. Indeed, the committee perfunctorily passed a motion posting the PIC report o their website at the hearing in which it was discussed

This record should have been posted on the PIC website at the same time it was forwarded to the committee.

Public bodies – like the PIC – are now put on notice about the public interest override. Will they do anything about it or will section 32 be a dead letter?