The Public Interest Override

A Man From Provence (Anne Claude Philippe de Tubières)

“Exemptions Not To Apply”

Both the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom Of Information and Protection of Privacy Act (MFIPPA) contain a special provision referred to as the “public interest override”.  Appearing in FIPPA s. 23 and MFIPPA s. 16, this language of this provision is essentially the same in both acts:

Exemptions not to apply

An exemption from disclosure of a record under sections 13, 15, 15.1, 17, 18, 20, 21 and 21.1 [of FIPPA, and sections 7, 9, 9.1, 10, 11, 13 and 14 of MFIPPA] does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

The purpose of this exemption is to prioritize the disclosure of information when there is a compelling public interest in making such disclosure that clearly outweighs the purpose of the relevant exemptions in each Act.

The “public interest override” is essentially an exemption from the listed exemptions themselves.  What the public interest override says is that even if there is an exemption that applies to the requested information, when there is a compelling public interest in disclosure that clearly outweighs the purpose of the applicable exemption, the institution is supposed to disclose the information.

Caveats

Two important caveats apply:

Not applicable to all exemptions

The “public interest override” provision does not apply to all exemptions — rather, it can only override the exemptions listed within the language of the provision itself.  (Consult the public interest override definition in FIPPA s. 23 or MFIPPA s. 16 as applicable to your institution.)  Therefore, while it is within an institution’s discretion to decide that a compelling public interest mandates the disclosure of certain information regardless of the potential application of the “advice to government”, “relations with other governments / aboriginal communities”, “third party information”, “economic and other interests”, “danger to safety or health of an individual”, “personal privacy” or “species at risk” exemptions, an institution cannot rely on the public interest override to overcome exemptions not listed in the provision such as the “cabinet records”, “law enforcement”, “defence”, or the “solicitor-client privilege” exemptions, among others.

Before relying on the “public interest override” provision, always check that it applies to the relevant disclosure exemption you are considering overriding.

Public interest must “clearly outweigh” the purpose of the exemptions

The interest of the public in the disclosure of the information must “clearly outweigh” the purpose of the exemption.  In scenarios where the theoretical benefits of disclosure would be similar or generally comparable to the harm caused by ignoring the relevant exemption, the public interest override should not be relied upon to override an exemption.  In this vein, the FIPPA Manual offers the helpful advice that “Generally, a public interest does not exist where the requester’s interests in a record are essentially private in nature.”

Barker v. Ontario (Information and Privacy Commissioner), 2019 ONCA 275

In this case decided late last year, the Ontario Court of Appeal signalled strong support for institutions who invoke the public interest override as a justification for disclosing records regardless of the potential application of certain exemptions that might otherwise be applicable.

The relevant institution was Algoma Public Health (APH), to whom MFIPPA was applicable.  The subject of the appeal was a request for access to a report originally prepared by KPMG (the “KPMG Report”) at the request of APH.  The report contained the personal information of Dr. Kim Barker, who resisted its disclosure on that basis.  Dr. Barker was APH’s former Medical Officer of Health and Chief Executive Officer.  Back in 2013, APH had hired Mr. Shaun Rootenberg as its interim Chief Financial Officer (“CFO”).  It was then revealed hat Mr. Rootenberg had a criminal record for multiple counts of fraud. As noted in the decision, the public’s concern about his hiring was heightened due to the fact that APH’s previous CFO had been charged with breach of trust and theft.

APH commissioned the KPMG report in an attempt to investigate potential conflicts of interest in the hiring of Mr. Rootenberg and whether APH had suffered any financial losses as a consequence of his tenure with APH.

When APH notified Dr. Barker it intended to disclose the report, Dr. Barker objected to such disclosure on the basis that the report contained her personal information.  APH then declared it would rely on the public interest override in s. 16 of MFIPPA to disclose the report in its entirety, despite the fact that by doing so it would be disclosing the personal information of Dr. Barker which was included in the report.

Dr. Barker appealed the matter to the Information and Privacy Commissioner of Ontario, who found in favour of APH’s decision to disclose the document in its entirety.  Dr. Barker’s request that the Privacy Commissioner reconsider this decision was refused.

On appeal before the Divisional Court of Ontario, the court found that the Privacy Commissioner should have considered the application of the public interest override to each piece of personal information contained within the KPMG report, and remitted the matter to the Commissioner to undertake the process afresh.

However, rather than comply with the decision of the Divisional Court, the Privacy Commissioner appealed the decision to the Ontario Court of Appeal.  Here, the Court of Appeal overturned the Divisional Court decision and asserted its unanimous support for the original decision of the Privacy Commissioner which supported the disclosure of the entire KPMG Report despite the inclusion of Dr. Baker’s personal information in such document.

After noting that the parties agreed that the appropriate standard of review of the Privacy Commissioner’s decision was merely that it had to be “reasonable”, rather than having to be exactly “correct” in the eyes of the Court, the Court of Appeal determined:

[91] In my view, the Commissioner’s approach was reasonable. I do not accept that, in the circumstances, the failure to identify each piece of protected information or to balance each piece of protected information separately undermined the reasonableness of the Commissioner’s decision. In this regard, I disagree with the Divisional Court that without a piece-by-piece analysis, one could not know “what the Commissioner was weighing as against the public interest”: at para. 68.

[92] While a piece-by-piece analysis may well be required in some circumstances, in other cases, such as this one, a piece-by-piece analysis in the reasons is not required. In this case, it is the story told when the whole of the protected information is disclosed that sheds light on the operations of APH and, more specifically, whether a conflict of interest existed in the hiring of the former interim CFO and whether APH suffered any losses as a result of his hiring. Viewed individually, each piece of protected information reveals little of the underlying story and, on its own, holds little public interest, let alone a compelling public interest in disclosure that would outweigh the s. 14 protection. The public interest in disclosure is of the information as a whole and it is when this interest is weighed against the purpose of the s. 14 protections at issue that the s. 14 protection must yield.

Interestingly, the Court of Appeal appears to have found that assessing each item of personal information individually and withholding some while disclosing others piecemeal may not have served the purpose of satisfying the compelling public interest; rather, such interest may not have been served unless the full report was disclosed without redaction, and it was reasonable for the Privacy Commissioner to reach this conclusion.

In my view, the lesson to take away from this case is that the Privacy Commissioner is likely to support institutions who make a bona fide determination that the disclosure of certain information is in the public interest.  Therefore, institutions should feel encouraged to apply the public interest override to disclose documents in the interests of greater transparency despite the potential application of exemptions that are covered by the override provision.  In turn, Ontario’s courts have now been given clear instructions by our Court of Appeal to give due deference to the decisions of the Privacy Commissioner with regard to the application of the public interest override.  The result may be an increased interest from institutions in relying on the public interest override in the name of transparency.  It does appear to provide a relatively low-risk procedure for disclosing documents in cases where the override is arguably applicable: an institution may decide to simply notify affected parties that it intends to rely on the public interest override and then turf the matter over to the Information and Privacy Commissioner of Ontario for adjudication in the case of any appeal.

Finally, please note that the Privacy Commissioner’s office has the authority to decide independently to apply the public interest override on their own initiative in any appeal, so long as it is used to override one or more of the specific exemptions identified in the provision itself.  An institution may be taken by surprise to find documents “ordered out” on this basis, especially if they had not previously considered the application of the provision when they made their initial disclosure decision.

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Links to Resources:

Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31

Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56

Freedom of Information and Protection of Privacy Manual https://www.ontario.ca/document/freedom-information-and-protection-privacy-manual

Barker v. Ontario (Information and Privacy Commissioner), 2019 ONCA 275 http://www.ontariocourts.ca/decisions/2019/2019ONCA0275.pdf

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