Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 113-1996
August 19, 1996
INQUIRY RE: A decision of the Cowichan School Board to withhold records
relating to the development of a five-year plan for School District No. 65
(Cowichan)
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner on May 2, 1996 under
section 56 of the Freedom of Information and Protection of Privacy Act (the
Act). This inquiry arose out of a request for review of the Cowichan School
Board's decision to withhold records requested by the Cowichan District
Teachers' Association (the applicant).
2. Documentation of the inquiry process
On December 20, 1995 the applicant requested a series of records listed as
"sources" in a November 1995 Response Document entitled "2000 and Beyond ... A
Five Year Plan." On January 12, 1996 the School Board refused to disclose the
records to the applicant on the basis of section 91 of the School Act.
In a January 31, 1996 letter to the applicant, the School Board indicated that
it was now withholding the requested records under section 12.1 of the
Freedom of Information and Protection of Privacy Act. On January 26,
1996 the applicant wrote to my Office and requested a review of the School
Board's decision. Subsequently, the School Board raised section 17 of the Act,
and the applicant relied on section 13(2).
As noted immediately below, the School Board has now released most of the
records in dispute to the applicant and is withholding only selected portions
of one of them and the full text of another.
3. Issues under review at the inquiry and the burden of proof
This inquiry deals with the School Board's decision to withhold portions of
the requested records under sections 12.1 and 17(1) of the Act. The applicant
submitted that disclosure should be made under section 13(2). These
sections read as follows:
Local public body confidences
12.1(1) The head of a local public body may refuse to disclose to an applicant
information that would reveal
13(1) The head of a public body may refuse to disclose to an applicant
information that would reveal advice or recommendations developed by or for a
public body or a minister.
(2) The head of a public body must not refuse to disclose under
subsection (1)
Disclosure harmful to the financial or economic interests of a public
body
17(1) The head of a public body may refuse to disclose to an applicant
information the disclosure of which could reasonably be expected to harm the
financial or economic interests of a public body or the government of British
Columbia or the ability of that government to manage the economy, including the
following information:
(d) information the disclosure of which could reasonably be expected to result
in the premature disclosure of a proposal or project or in undue financial loss
or gain to a third party;
....
Section 57 of the Act establishes the burden of proof. Under section 57(1),
at an inquiry into a decision to refuse an applicant access to all or part of a
record, it is up to a public body to prove that the applicant has no right of
access to the record or part of the record. In this case, the School Board has
to prove that, under sections 12.1 and 17, the applicant has no right of access
to the records in dispute.
4. The records in dispute
The records originally in dispute consisted of eight reports prepared by
administrative officers employed by the School Board and submitted to it for
its consideration at an in camera Board meeting on March 24 and 25, 1995
to develop a five-year plan for the School District. Six of these have been
disclosed to the applicant in their entirety. The remaining records are
labeled as follows: Individual School Growth Plans for the Next Five Years
(portions withheld); and Special Education at the Year 2000 (entirely
withheld).
5. The Cowichan School Board's case
The records in dispute originated as "Briefs" prepared by School Board
administrators and committees for a wide-ranging retreat of the School Trustees
for Cowichan District held on March 24-25, 1995. The focus was on the
preparation of a draft five-year plan, which was subsequently circulated to a
number of parties in a printed pamphlet form in November 1995. I have
presented below the Board's arguments against disclosure of the records.
(Submission of the Board, pp. 1,2)
6. The Cowichan District Teachers' Association's case
The applicant points out that the draft five-year plan indicated that the full
briefing records were available at the School District office, and it wants
unrestricted access to them. As I deemed it appropriate to do so, I have
presented below selected arguments from the submission prepared for it by the
British Columbia Teachers' Federation.
7. Discussion
In camera submissions
The School Board designated a number of pages of its submission to me and the
statutory declaration of the School Superintendent as being in camera.
In this case, I believe that the practice may have been a disservice to the
applicant and the general public, especially with respect to the arguments
under section 17 of the Act, because they are deprived of the full force of
relevant argumentation, which in my view is so general in this instance as not
to be worthy of in camera status. While I find this questionable,
there has been no prejudice to the applicant in this case.
I would urge public bodies and applicants to continue to use in camera
submissions sparingly. The alternative is for me to refuse certain in
camera submissions and then endure further delay in the review process as
parties try to defend their reliance on an in camera submission.
Sections D.15 and 16 of the June 1996 Policies and Procedures of my Office
reinforce the notion that a submission may be made in camera where "it
may disclose the contents of the record in dispute or where it contains
information which may be subject to an exception under the Act." Sections 15
and 16 of these policies specifically provide that:
15. The Commissioner may receive an in camera submission (in whole or in
part) from a party where it may disclose the contents of the record in dispute
or where it contains information which may be subject to an exception under the
Act. A party making an in camera submission must give reasons to the
Commissioner as to why it should be received in camera.
16. If the Commissioner questions whether a submission should be received
in camera, the party affected will be given an opportunity to
make further representations on the issue before the Commissioner decides if
another party is entitled to have access to the submission.
Section 12.1: Local public body confidences
The Board submits that release of the records sought by the applicant "would
reveal the substance of the Board's deliberations at the Retreat, a meeting of
the Trustees which was authorized by the School Act to be held, and was
held, in the absence of the public." (Submission of the Board, p. 3) At the
opening of the retreat, the School Superintendent informed the Board that their
deliberations were in camera and would remain strictly confidential.
(Submission of the Board, p. 4) However, the applicant is not asking for the
substance of the Board's deliberations but for the records that evidently
served as background preparation for focused discussion of specific topics.
No minutes were kept at the retreat, and the authors of the briefing materials
"were assured that their submissions would not be made public." (Submission of
the Board, p. 4) The Superintendent states that he "advised the Authors
explicitly that the information provided to the Board at the Retreat would be
kept strictly confidential." (Statutory Declaration of Geoff Johnson,
paragraph 5) Although I am prepared to accept the accuracy of these two
statements, it is advice that the Superintendent can only give in advance on
the basis of compliance with the multiple provisions of the Act as discussed
below. The applicant has also questioned the adequacy of the evidence advanced
by the School District in support of the authors' alleged expectations of
confidentiality. (Submission of the Applicant, paragraphs 23 - 26)
The Board has emphasized the importance of its members being free to consider
all options for the future at a retreat and to speak freely. (Submission of
the Board, pp. 5-6) With respect, this has little to do with the request for
records in this inquiry. Release of the remaining source documents would not
"reveal the substance of the Board's deliberations at the Retreat." Nor do I
find the Board's reliance on certain language in Order No. 8-1994, May 26,
1994, persuasive in this context, not least because there is nothing "oral" in
content or origins about the records in dispute. (Submission of the Board, p.
6)
Even if the Board of Trustees spent all of its retreat discussing the source
documents, and indeed they did form "the basis and framework for these
deliberations," there is nothing in the language of section 12.1 that prohibits
their disclosure in support of the draft five-year plan. (Statutory
Declaration of Geoff Johnson, paragraph 11) One can release the source
documents without disclosing "the substance of deliberations" about them.
There is a critical distinction, in my view, between revealing the "basis" for
deliberations and protecting the "substance" of deliberations. As the
applicant aptly stated:
The applicant does not seek information on who voted how; who said what, or
even whether background documents or suggestions were discussed. Rather, the
information sought would disclose the kinds of policy visions and options,
which, presumably, among others, were available for discussion by the governing
body of the public body. The documents sought would not indicate how they were
dealt with in the meeting, whether any visions or recommendations were
accepted, or even if they were considered by the meeting. (Submission of the
Applicant, paragraph 17)
Although I accept that the meeting of the Board of Trustees was properly in
camera under the School Act, I find that disclosure of the records
in dispute would not reveal the substance of deliberations of this meeting.
Section 13(2): Policy advice or recommendations
I note that the School Board did not rely on section 13 dealing with policy
advice or recommendations. However, the applicant submitted that
section 13(2)(k) should apply in this case. It states that the head of a public body
must not refuse to disclose "a report of a task force, committee, council or
similar body that has been established to consider any matter and make reports
or recommendations to a public body." (See Submission of the Applicant,
paragraph 11) While I am sympathetic to this argument, I am also sensitive to
the fact that the gathering of information from school administrators can be
construed as receiving policy advice and options and not as a specific "report"
of a task force, committee, etc. as contemplated by section 13(2)(k). I am
also sympathetic to the applicant's argument that the records in dispute may
fall under the language of section 13(2)(m): "information that the head of the
public body has cited publicly as the basis for making a decision or
formulating a policy." (Submission of the Applicant, paragraph 13) I can only
assume that the School Superintendent referred to the source documents in this
manner at the public meeting where the applicant and the media first saw the
pamphlet.
Section 13(2) provides that the head of a public body must not refuse to
disclose specific kinds of information under subsection (1). Because
the School Board did not rely on section 13(1) to refuse disclosure, any
determination by me under section 13(2) would be moot.
Section 17(1): Disclosure harmful to the financial or economic interests
of a public body
My first Order established that there must be "detailed and convincing
evidence of harm" for a public body to exercise its discretion not to release
records in dispute under this section. (Order No. 1-1994, January 1, 1994, pp.
10-11) In this inquiry, the School Board argues that the withheld documents
are "plans that relate to the management of personnel of or the administration
of a public body and that have not yet been implemented or made public," and
also "information the disclosure of which could reasonably be expected to
result in the premature disclosure of a proposal or project or in undue
financial loss or gain to a third party." The Board emphasizes that the
Special Education Report contains "a number of plans or proposals relating to
the administration of the Board and the management of its personnel which have
not been implemented or made public." In particular:
The severed portions of the School Growth Plans contain specific plans or
proposals regarding staffing levels, training, contract negotiations, capital
expenditures and budgetary planning. These plans clearly relate to the
administration of the Board or to the management of its personnel, and have not
been implemented or made public. (Submission of the Board, p. 10)
Although I will test the Board's application of section 17 below when I review
the specific records in dispute, my basic point is that it is not enough for
the severed material to fall under the language of section 17(1)(c) or (d),
because in the language of 17(1) itself, disclosure must also "reasonably be
expected to harm the financial or economic interests" of the School Board. I
find that the School Board has not proven this to be the case in the
circumstances of this inquiry.
The School District has relied on the language of sections 17(1)(c) and (d) to
refuse disclosure. But the context in which they were prepared, that is, think
pieces for a wide-ranging discussion at a retreat, indicates that the records
are not "plans" relating to "the management of personnel of or the
administration of a public body...that have not been implemented or made
public," or "information the disclosure of which could reasonably be expected
to result in the premature disclosure of a proposal or project or in undue
financial loss or gain to a third party." (Submission of the Board, pp. 9-14)
Thus I agree with the following characterization by the applicant:
... the documents would not constitute the economic or financial plans of the
public body but rather would provide wide ranging views on `what initiatives or
plans could be implemented in a perfect world.' [a quote from the Statutory
Declaration of the School Superintendent] The documents would not disclose any
contracts or financial plans which the public body is about to undertake but
rather, at best, musings by Administrative officers about what plans could be
undertaken without budgetary or contractual limitations. (Submission of the
Applicant, paragraph 22)
Documents identified as publicly available
This inquiry raises the interesting issue of what happens when a public body
states publicly that certain records are available for review by the public and
subsequently discovers, or decides, that this was a mistake. (Submission of
the Board, p. 5) I have sympathy for both sides in this debate. As head of a
public body myself, I would like to be able to correct an "error" about what
specific records are publicly available from my Office. But I also have a
responsibility to have systems in place, whether involving myself directly or
not, that prevent as many errors as possible from occurring in this regard.
Reviewing the School District's draft five-year plan in advance of distribution
involved only thirteen simple columns of print by my count. I am surprised
that this release occurred without the involvement of senior management,
especially given the change of authorship during the process and the direct
involvement of the School Superintendent with the editing of an early draft.
I obviously think that heads of public bodies, including myself and the
Superintendents of School Districts, should reflect on the status of records
under the Act before they ask for them to be created, prepared, and indeed
mentioned in a public document as accessible. This makes sense under the new
regime of openness and accountability to the public that the Act promotes.
(See Submission of the Applicant, paragraphs 8, 9) In my view, it was fully
appropriate for the pamphlet intended for circulation to the general public to
indicate that a list of background documents could be consulted at the
headquarters of the School District.
I am also pleased in the tangled circumstances of the present case that the
School District finally withheld only one of the records in its entirety and
selected portions of another one.
Review of the specific records in dispute
The School Board made several paragraphs of argument on an in camera
basis in order to justify non-disclosure of the "most sensitive" portions of
the Individual School Growth Plans and the Special Education Report. It
attempts to argue for its position on the basis of both sections 12.1 and/or
17(1)(c) and (d) of the Act (as discussed above). My view, however, is that
only section 17 is relevant.
My decision to release most of the small amount of records in dispute is
influenced by the fact that they are dated March 1995 and they will not be
effectively disclosed to the applicants until the early fall of 1996. The
passage of time is relevant to the impact of financial harm.
The Individual Growth School Plans
The School Superintendent asked each of nineteen schools in the District to
prepare, in point form, "a brief overview of what you see as being the needs
and directions for the next five years ..." The specified headings were
programs and learning; facilities; finance; administration; and mission
statement. Most of the respondents followed this format. Only one response
was withheld in its entirety. In reviewing the severed material, I could find
no rationale for withholding it from the applicant.
I find that disclosure of the actual records in dispute cannot reasonably be
expected to harm the financial or economic interests of the School District.
Even if the applicant learns that one administrator, or indeed several or all
of them, favoured a particular course of events in relation, for example, to
hiring or reallocating staff or making renovations and repairs at a particular
school, the Board has not proven to my satisfaction how this could harm
District-wide negotiations or bargaining with various unions, because the views
expressed in the planning documents are solely those of specific individuals
and not the School District as a whole.
The Special Education Report
This document is three pages long, plus some appendices that appear to be
publicly-available information such as one page of a newsletter and a
questionnaire. On the surface, this record could be protected from disclosure
as "plans that relate to the management of personnel of or the administration
of a public body and that have not yet been implemented or made public." The
problem, however, is that under section 17(1) this information is intended to
be "information the disclosure of which could reasonably be expected to harm
the financial or economic interests of" the School Board. I fail to see how
disclosure of the contents of this report, except for two paragraphs with some
possible relevance to financial harm to the School District, would impact
adversely on the School Board in this manner.
I conclude that the School Board has failed to prove that sections 12.1 and 17
apply to all of the information in the records in dispute.
8.
Order
I find that the head of the Cowichan School Board was not authorized to refuse
access to all of the information in the records in dispute under sections 12.1
and 17(1) of the Act. Under section 58(2)(a), I require the Ministry to
give the applicant access to the record known as the Special Education Report
and to the severed portions of the Individual Growth School Plans, except for a
number of paragraphs that I have identified as protectible under
section 17(1).
August 19, 1996
David H. Flaherty
Commissioner