The Public Interest Override Doesn’t Apply to Excluded Records

A recent decision of the Information and Privacy Commissioner of Ontario has attracted significant media attention:

• Soo Today reports, “Sault Police don’t have to reveal how often they discipline their officers”
• CTV News Northern Ontario reports, “Sault police have the right to keep officer discipline private, commission rules”
• Sault This Week: “What, if anything, does Sault police have to hide?”

In Order MO-4469 (Sault Ste. Marie Police Services Board) decided December 11, 2023, the requestor, a post-doctoral fellow in the Department of Political Studies at Queen’s University, sought access to the monthly number of internal disciplinary measures applied to members of the Sault Ste. Marie Police Services Board (the SSMPS) between January 2015 and April 2021. The SSMPS found a record responsive to the request, but denied access on the basis that the record was shielded from disclosure by the employment or labour relations exclusion under section 52(3)3 of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) or in the alternative, that the record fell under the personal privacy exemption in section 14(1) of MFIPPA.

The requestor appealed the decision. At the mediation stage, the requestor took the position that there would be a public interest in the disclosure of the requested information. At that point, the potential application of the public interest override in section 16 of MFIPPA was added as an issue in the appeal.

The record at issue was a three-page document with the subject line “Monthly Internal Disciplinary Measures from January 2015 to April 2021”. The document listed the number of internal disciplinary measures applied to SSMPS members each month between January 2015 and April 2021. The document did not contain the name of the individual disciplined, the rank (if any) of the relevant individual, or the nature of the conduct that was subject to discipline.

Did the Labour and Employment Exclusion Apply?

The crucial issue in the case was whether the record was covered by the employment or labour relations records exclusion set out in section 52(3)3 of MFIPPA.

As detailed in a previous FOI Assist article (see Exemptions vs. Exclusions: What is the Difference?), there are two distinct types of disclosure exceptions under Ontario’s freedom of information legislation: exemptions and exclusions.

When records fall under an “exemption”, MFIPPA and/or FIPPA (the “Acts”) do apply to such records, but the existence of an applicable exemption may provide the institution with an option or even an obligation to refuse to disclose such records in response to a freedom of information request. On the other hand, when records fall under an “exclusion” (such as the labour and employment exclusion in section 52(3)3 of MFIPPA), then the Acts simply do not apply to such records. Therefore, the disclosure of such records cannot be compelled under the Acts.

In determining whether the employment or labour relations exclusion under section 52(3)3 of MFIPPA applied to the record under consideration, Adjudicator Steven Faughnan first considered whether there was “some connection” between the relevant record and labour relations or employment related matters. He noted “section 52(3) does not exclude all records concerning the actions or inactions of an employee of the institution simply because their conduct could give rise to a civil action in which the institution could be held vicariously liable for its employees’ actions.” Adjudicator Faughnan provided an example of a type of record that would not meet this “some connection” test: “For example … accounting documents that detail an institution’s expenditures on legal and other services in collective bargaining negotiations do not have “some connection” to labour relations.”

Adjudicator Faughnan then considered whether the requested record listing the number of internal disciplinary measures applied to SSMPS members each month was “on the subject of” or “concerning” labour relations or employment-related matters, and concluded that it was.

The Public Interest Override

The requestor appears to have placed significant weight on his argument that there was a significant public interest in the disclosure of the requested record, and therefore that the public interest override should apply regardless of the applicability of any disclosure exceptions. What this line of argument overlooks, however, is that the public interest override is itself a part of the Acts, and can only apply to records which are themselves subject to the Acts.

There is an important difference between exemptions and exclusions: exemptions act on records which are covered by FIPPA/MFIPPA, whereas exclusions serve to exclude records from FIPPA and MFIPPA completely. (For more details on this distinction, and a list of exemptions vs. exclusions under each Act, see Exemptions vs. Exclusions: What is the Difference?).

As discussed in an earlier article (see The Public Interest Override), the public interest override is essentially an exemption from certain exemptions within FIPPA and MFIPPA. This means two types of records are entirely “out of reach” for the public interest override: 1. records covered by an exemption not listed in the language of the public interest override, and 2. records which are excluded from the Acts, such as records covered by the employment or labour relations exclusion under section 52(3) of MFIPPA or its equivalent in section 65(6) of FIPPA. Exclusions are in this sense more powerful than “mere exemptions” under FIPPA or MFIPPA, because once records are excluded, the language of the Acts, including the public interest override, has no effect on such records. This has the effect of entirely excluding such records from disclosure in response to freedom of information requests as well.

Adjudicator Faughnan acknowledged the non-application of the public interest override to excluded records in the concluding paragraph of his Order: “As I have found that the Act does not apply to the record at issue it is not necessary for me to consider that possible application of sections 14(1) [the personal privacy exemption] or 16 [the public interest override] of the Act.”

Can Excluded Records be Disclosed Voluntarily?

An interesting point raised in Order MO-4469 is that being excluded from FIPPA and MFIPPA does not necessarily render records “undisclosable”. As noted by Adjudicator Faughnan, “Section 52(3) excludes certain records held by an institution that relate to labour relations or employment matters. If the exclusion applies, the record is not subject to the access scheme in the Act, although the institution may choose to disclose it outside of the Act’s access scheme.” He cites an earlier decision of the Information and Privacy Commissioner Order PO-2639 (Ministry of Health) in support of this principle. In that decision, Adjudicator Daphne Loukidelis upheld the Ministry’s finding that the records in question fell under the labour and employment exclusion in section 65(6)3 of FIPPA, but added “section 65 does not prohibit an institution from disclosing records outside the access regime established by the Act” and noted “the Ministry has exercised its discretion to disclose certain records to the appellant even though these may also have been excluded from the Act”. This would seem to suggest that debates around whether it is “in the public interest” to disclose excluded records remain relevant, despite the non-application of the public interest override. The exclusion of certain records from FIPPA and MFIPPA may, in some cases at least, merely grant the institution greater discretion over whether or not to disclose the records. In making such a decision, consideration of the public interest should certainly play an important role, although one that would have to be balanced against privacy considerations, legal obligations outside of FIPPA/MFIPPA, and workload and staffing considerations as well.

If you enjoyed today’s article, please consider how the FOI Assist software can help your institution track and respond to freedom of information requests. Learn more or request a demonstration today.