Can an institution consult a sample of affected persons rather than notifying everyone?

The Farm-Yard with the Cock (Charles Turner)

I hope everyone had a fun Canada Day and were able to enjoy the holiday!  It looks like we had beautiful weather across most of the province.

I just came across an interesting article about an FOI request for a list of all farmers and farm businesses in Ontario:

RealAgriculture: Freedom-of-information request filed to access a full list of Ontario farms (June 30, 2020)

As noted in the article, an unidentified individual has filed an FOI request with the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) for the following information:

List of all Ontario businesses with a Farm Business Registration. If possible I would like their FBR number as well, but at the very least, I just need the names of the businesses that are registered.

OMAFRA is currently processing the request and is now at the point of attempting to determine whether releasing the requested information would “reveal a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly” in violation of the “third party information” exemption set out in section 17 of the Freedom of Information and Protection of Privacy Act (FIPPA).  (The equivalent “third party information” exemption also appears in the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) as section 10.)

As explained in greater detail in my previous article, The Affected Person Process, when section 17 of FIPPA (or section 10 of MFIPPA) could potentially apply to information requested in an FOI request, the institution processing the request is required to notify third parties whose interests may be affected and give them the opportunity to make representations to the institution concerning disclosure of the information.

The affected person consultation process generally serves as both a solicitation for representations, and also as a means of ensuring that every affected person is aware of the existence of an FOI request that may affect their interests.  As part of the process, affected persons are generally informed of their right to initiate an appeal of the institution’s decision before Information and Privacy Commissioner of Ontario (IPCO) before any relevant information is disclosed to the requestor.

The Ministry of Government Services’ FOI Manual notes “The threshold for determining if the third party information exemption applies to a record is very low”.  It has generally been the practice of institutions to consult every third party whose confidential information may be disclosed under a FOI request.

However, for the request at hand, it appears OMAFRA has decided to try a different approach.  An OMAFRA spokesperson is quoted in the article as saying:

“Due to the large number of producers impacted by this request and the challenges presented by the COVID-19 outbreak in reaching out to all producers, the Ministry is consulting via email with a sample of producers. 490 producers with a valid FBR number during the period of the request and whose email addresses had been previously provided to Agricorp were asked to respond in writing by July 17, 2020 if they had concerns with the release of this information.”

So, rather than notifying every affected third party (which would involve contacting every registered farmer in Ontario), OMAFRA has decided to consult with a sample of 490 producers within the province.  Presumably, OMAFRA intends to make a determination about the disclosure of the information without any further direct consultations with the majority of the individuals and companies that may be affected.

This case could set a useful precedent for institutions who find themselves in a similar situation in the future, i.e., faced with making a determination under FIPPA or MFIPPA on the disclosure of records where thousands of third parties are potentially be affected.  This request certainly seems likely to wind up in an appeal before IPCO before any disclosure is actually made.  I will be watching to see whether IPCO validates OMAFRA’s approach here, or whether it admonishes OMAFRA for not notifying every affected person, even though thousands of such notifications would be required to fulfill the requirement.  Or might IPCO decide that no affected person notifications are even required in this situation?  Whatever the eventual decision, I will be following this one with interest!

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:

The Affected Person Process

Published by Justin Petrillo

I have created the 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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