COVID-19 Applicable Exemptions

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The biggest story in Canada right now is the spread of the COVID-19 novel Coronavirus across the country. For those looking for the most up-to-date information available from the Province of Ontario, the Ministry of Health has a helpful website showing the status of cases in the province as well as advice on what steps we should be taking to protect ourselves and each other:

Ministry of Health: The 2019 Novel Coronavirus (COVID-19)

https://www.ontario.ca/page/2019-novel-coronavirus

Although a declaration of emergency has closed many workplaces, many provincial and municipal governmental institutions remain open, including hospitals, municipal governments, and police forces. News media offices and many other businesses remain open as well, and Freedom Of Information requests are still being received and processed.

For provincial and municipal institutions in Ontario who are receiving Freedom Of Information requests related to the current COVID-19 pandemic under the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom Of Information and Protection of Privacy Act (MFIPPA), I thought it would be helpful to create a list of the exemptions most likely to be relevant to such requests.

Top Exemptions for COVID-19 Related FOI Requests

The exemptions listed below should be given special attention when a request relating to COVID-19 is being reviewed:

Obligation to disclose (FIPPA, s.11, MFIPPA s. 5)

In the normal course, many institutions deal with mainly “commercial” or “economic” matters, and this section might start to become overlooked as something that is unlikely to ever apply. However, the COVID-19 situation is a good time to remind institutions of their obligation to disclose any record that reveals a grave environmental, health or safety hazard to the public. The specific language of this exemption is the same in both acts and is as follows:

Obligation to disclose

11 (1) / 5 (1) Despite any other provision of this Act, a head shall, as soon as practicable, disclose any record to the public or persons affected if the head has reasonable and probable grounds to believe that it is in the public interest to do so and that the record reveals a grave environmental, health or safety hazard to the public. […]

The remainder of the exemption deals with the formalities of making such disclosure, such as giving notice to the person to whom the record relates, if practicable.

Cabinet records (FIPPA, s.12) (mandatory)

This exemption likely needs no special call-out in this article, but it is certainly relevant when reviewing any request for records of Cabinet-level deliberations relating to the COVID-19 pandemic.

Draft by-laws, etc. (MFIPPA s.6)

Municipal governments may consider enacting special by-laws to respond to the COVID-19 situation. Because of this exemption, requestors have no right under MFIPPA to access private, internal drafts of such by-laws.

Advice or recommendations (FIPPA, s.13, MFIPPA s.7)

Many, and perhaps even the majority, of records relevant to the COVID-19 situation will fall under this exemption. The exemption has similar language under both FIPPA and MFIPPA. As stated in MFIPPA:

Advice or recommendations

7 (1) A head may refuse to disclose a record if the disclosure would reveal advice or recommendations of an officer or employee of an institution or a consultant retained by an institution. […]

This language would exempt the disclosure of suggested courses of action from medical experts, advice by municipal employees on how to limit services or deliver services differently in light of the COVID-19 situation, and advice provided by officers of a municipal government as well.

However, it is equally important to consider what this exemption does NOT cover, namely, the “exceptions to the exemption” under s.13(2) of FIPPA and s.7(2) of MFIPPA. Among other things, for “(a) factual material” and “(b) a statistical survey”, institutions cannot rely on this exemption as a basis to refuse disclosure. This means, for example, that a report from a consultant which includes factual information about COVID-19 or its impact on the province should not be withheld (at least not in full) merely on the basis that it is “advice to government”. Further, under 13(3) of FIPPA, an institution cannot refuse to disclose a record under this exemption “where the head has publicly cited the record as the basis for making a decision or formulating a policy”.

Institutions should carefully consider the long list of important carve-outs to this exemption before relying on it as a basis to withhold documents from a requestor.

Relations with other governments (FIPPA, s.15, MFIPPA s.9)

FIPPA allows provincial institutions to refuse to disclose records where the disclosure may reasonably be expected to prejudice the conduct of intergovernmental relations (such as the relationship between the province and the federal government). This exemption may apply to certain sensitive communications relating to the COVID-19 situation, for example, a hypothetical document in which the province concluded it did not expect the federal government to succeed in meeting certain health care commitments relating to COVID-19.

Further, under both FIPPA and MFIPPA, institutions are permitted to refuse to disclose information received in confidence from either the federal or provincial government, or an international organization of states or a body thereof. This language would almost certainly apply to information received in confidence from, for example, the World Health Organization, which is a specialized agency of the United Nations.

For municipal institutions under MFIPPA, this exemption is mandatory; for provincial institutions under FIPPA, the exemption is optional, but approval of the Executive Council must be obtained prior to any disclosure.

Third-party Information (FIPPA, s.17, MFIPPA s.10)

As one of the most frequently-cited exemptions, there is likely no need to cover this exemption here in great detail, except to say that during the COVID-19 situation, private businesses and individuals are likely to be making numerous inquiries to all levels of government related to COVID-19 and the application of the declaration of emergency, and institutions may be creating records of such inquiries. Institutions should consider whether information that, for example, a business is considering closing down or changing its operations during the crisis would be covered by this exemption.

Economic and other interests (FIPPA, s.18, MFIPPA s.11)

This exemption includes a long list of specific types of records that are exempt from disclosure. Many of the sub-clauses to this exemption may be applicable to records relating to the COVID-19 situation, such exemption from disclosure of any “(g) information including the proposed plans, policies or projects of an institution where the disclosure could reasonably be expected to result in premature disclosure of a pending policy decision or undue financial benefit or loss to a person”. As provincial and municipal institutions make emergency plans which will certainly have significant economic effects on various business and individuals to widely varying degrees, this sub-clause helps ensure that requestors do not receive premature disclosure of such plans or policy decisions.

In general, many of the sub-clauses of the “Economic and other interests” exemption (FIPPA, s.18, MFIPPA s.11) warrant careful consideration in the context of COVID-19 related requests.

Information with respect to closed meetings (FIPPA, s.18.1)

To the extent that new legislation is developed to deal with the COVID-19 situation, it is worth remembering that records that reveal the substance of deliberations of a meeting regarding a draft of a by-law, resolution or legislation are generally exempt from disclosure under FIPPA due to this exemption.

Danger to safety or health (FIPPA, s.20, MFIPPA s.13)

An institution “may refuse to disclose a record where the disclosure could reasonably be expected to seriously threaten the safety or health of an individual.”

Personal privacy (FIPPA, s.21, MFIPPA s.14) (mandatory)

This clause will frequently serve to protect any information that would reveal the identity of specific individuals, or information relating to specific identifiable individuals.

Information soon to be published (FIPPA, s.22, MFIPPA s.15)

Information that is already published, or that is expected to be published within 90 days after the request is made (or such further period as may be necessary), is generally exempt from disclosure under this exemption.

Institutions should consider whether they can reduce their FOI workload by regularly publishing information that is frequently being sought by requestors. In the context of COVID-19, this might include regular updates on the number of suspected and confirmed cases in an area.

Exemptions not to apply (FIPPA, s.23, MFIPPA s.16)

Also known as the “compelling public interest” clause, this serves as a special exception to many of the exemptions listed above. For FIPPA exemptions 13, 15, 15.1, 17, 18, 20, 21 and 21.1, and MFIPPA exemptions 7, 9, 9.1, 10, 11, 13 and 14, the institution is required to decide whether a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption. In the context of COVID-19, this may serve as something of a “companion clause” to the “Obligation to disclose” under FIPPA, s.11 and MFIPPA s. 5.

If you have any questions or comments about this article, I encourage you to leave a reply below.

If you’d like to stay engaged with further updates and see pre-release previews and demos of the FOI Assist software, please follow the FOI Assist blog. To subscribe, simply enter your email address at the bottom of the page then click the follow button.

Related Articles:

Exemptions vs. Exclusions: What is the difference?

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

Published by Justin Petrillo

I am creating FOI Assist™ software to help Ontario’s provincial and municipal government institutions of all sizes track and respond to Freedom of Information (FOI) requests. For most of my career I have been a lawyer, advising clients on commercial, intellectual property and FOI/privacy issues. From 2013 to 2015, I managed the FOI program for the Toronto 2015 Pan/Parapan Am Games Organizing Committee while serving as Legal Counsel to the Games. Prior to becoming a lawyer, I obtained a computer science degree and worked as a software developer at several well-known technology companies.

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