The Commissioner does not learn of any details of a request for review until it
is before him in a formal inquiry. This ensures that the Commissioner remains
an impartial adjudicator of the facts and issues and makes his determination
independently from the mediation process.
During an inquiry, the Commissioner receives submissions on the facts and
issues of a case from the applicant, the public body, and, in certain
situations, third parties and intervenors. The Commissioner considers all
submissions and reviews the records in dispute. He then makes an
Order outlining the important issues and applicable sections of the Act, and
declaring his decision whether records must be withheld or disclosed. The
Commissioner also may make orders with respect to time extensions, corrections
to records, and fees.
Between April 1, 1996 and March 31, 1997 the Commissioner issued 62
Orders. These were Orders No. 96 to 157.
Between April 1, 1996 and March 31, 1997, the B.C. Supreme Court delivered five
decisions with respect to Commissioner's Orders challenged by judicial review.
These decisions were for Orders No. 36, 48, 73, and 74. Orders No. 36 and 74
were overturned. Order No. 48 was upheld but currently is under appeal by the
applicant to the Court of Appeal. The petition for Order No. 73 was
dismissed.
(Orders not mentioned above that were challenged in, or reviewed by, the B.C.
Supreme Court in previous fiscal years include Order No. 8, 22, 29, 39, 56, and
61).
A Chronological Table of Orders, a Table of Concordance, and a Table of Public
Bodies that were the Subject of Orders are attached to the back of this report
as Appendices D, E, and F.
(Copies of judicial review decisions are available by contacting the court
registries of the British Columbia Supreme Court: Vancouver (604) 660-2845 or
Victoria (250) 356-1478, or by accessing the Superior Courts website at:
http://www.courts.gov.bc.ca. The Commissioner's Office maintains an electronic
link on its web site from each order that has been judicially reviewed to the
B.C. Supreme Court homepage.)
Order No. 97-1996 - A Decision by Simon Fraser University to Sever Information
from a Report of a Committee
A news editor for The Georgia Strait requested from Simon Fraser
University the release of a 40-page report compiled by its Committee of Inquiry
concerning a dispute which took place among staff and faculty members. The
University released only 15 pages, stating that further disclosure would be an
unreasonable invasion of the personal privacy of those involved in the
inquiry.
The Commissioner found that, although small portions of the report should be
withheld to protect the personal privacy of persons involved in the inquiry,
the majority of the report must be released in order to comply with the
accountability requirements for public bodies under the Freedom of Information
and Protection of Privacy Act.
Order No. 115-1996* - A Request for Access to a School Counsellor's Notes in
School District No. 2 (Cranbrook)
School District No. 2 (Cranbrook) refused to turn over to a parent notes taken
by a counsellor at a school during interviews with the parent's two children.
The District argued that, because the school counsellor refused to disclose the
records to the District or the parent, it was unable to review the notes for
contemplation of disclosure under the Freedom of Information and Protection of
Privacy Act.
The Commissioner found that the counsellor's notes were records created by the
counsellor in the performance of the counsellor's duties as an employee of the
School District. The Commissioner therefore concluded that the notes were
records "in the custody or under the control" of the District and ordered the
counsellor to release them to the District.
The Commissioner emphasized that his decision that a school counsellor's notes
are subject to the Act is completely separate from a decision about who can
have access to the notes, whether parents or school officials, and under what
circumstances.
* This Order has been challenged by a request for judicial review in the
British Columbia Supreme Court. Until the court delivers a decision, the
Order is stayed.
Order No. 138-1996 - A Request for Review of a Decision by the Ministry of
Attorney General to Refuse a Former Employee of its Corrections Branch Access
to Records Pertaining to an Investigation of Workplace Harassment
A former employee of the Corrections Branch of the Ministry of Attorney General
requested records from the Ministry that had been generated during its
investigation of his alleged misconduct. The request included transcripts and
audio tapes of interviews with former colleagues, an investigator's handwritten
notes taken during the interviews, some employees' handwritten notes, and two
e-mail messages about the former employee circulated to Ministry employees.
The Ministry had already disclosed several records related to the
investigation, but refused to release the remaining information to the
applicant, stating that disclosure would be an unreasonable invasion of other
employees' privacy and could reasonably be expected to threaten their safety or
mental or physical health.
The Commissioner found that although the former employee had made submissions
that there was no reason for employees to fear him, the Ministry had provided
sufficient evidence of reasonable expectation of harm to employees if the
contents of the records were released.
The Commissioner stated that: "I wish to be guided by the record of past
performance in acting prudently in a sensitive manner, such as the present
inquiry, rather than relying on promises of reformation that may not withstand
the test of time. My primary concern is for the mental health and safety of the
third parties whose records have not been released to date."
Order No. 104-1996 - A Request by the Media to the Ministry of Attorney General
Concerning Information about Possible Sites for a Correctional Centre in the
Central Okanagan
A reporter for the Kelowna Daily Courier requested from the Ministry of
Attorney General the disclosure of records containing detailed information
concerning a proposed prison site in Kelowna. The applicant argued that
releasing the information was in the interest of the public good, but the
Ministry refused the request, stating that disclosure would be harmful to its
financial or economic interests.
The Commissioner upheld the decision by the Ministry, concluding the records in
question contained financial, commercial, and technical information that
belonged to the Ministry and had monetary value. He also found that the release
of the information could lead to premature disclosure of the prison proposals
and to undue financial gain to property owners or speculators. The Commissioner
further found that disclosure would reveal information about negotiations
carried on by and for the Ministry.
Order No. 126-1996 - A Media Request for Access to All Records Concerning an
Agreement Between the University of British Columbia, Coca-Cola Bottling Ltd.,
and other Third Parties
A reporter from The Ubyssey student newspaper requested all records from
the University of British Columbia associated with its Cold Beverage Agreement
with Coca-Cola Bottling Ltd., including contracts, negotiations, memos,
reports, letters, phone conversation records, and legal advice. The University
refused to disclose the 179 pages of information, stating that disclosure would
be harmful to the financial or economic interests of the University and the
business interests of Coca-Cola. The University also argued that some of the
records were protected by solicitor-client privilege.
The Commissioner agreed with the University, finding that 173 pages of the
documents were properly withheld under the financial or economic interests
exceptions of the Freedom of Information and Protection of Privacy Act.
He further found that the six remaining pages were protected from disclosure
under the Act by solicitor-client privilege.
Order No. 142-1997 - A Refusal by the City of Victoria to Disclose Records to
the Media Related to the Choice of a Contractor to Replace Memorial Arena
A news editor from Monday Magazine had requested records from the City
of Victoria relating to the choice of Pilot Pacific Developments Ltd. as the
preferred contractor to build a new facility to replace Memorial Arena in
Victoria. The requester claimed the records from the City were a matter of
public interest and public accountability. The City refused to release the
records, stating that disclosure would be harmful to its financial or economic
interests and the business interests of those who had submitted project
proposals.
The Commissioner found that the City had inappropriately withheld a number of
records from disclosure, since they contained little information about
negotiations as specified in exceptions to disclosure under the Act. He further
found that the City had inappropriately withheld records pertaining to the
proposals by two unsuccessful firms, since they had already agreed to the
release of their proposal documents.
The Commissioner ordered the City to release several of the records in full to
Monday Magazine and to sever others for partial release. He concluded
that, "the broad public interest in promoting accountability of public
bodies...favour[s] disclosure in this instance, since it might reasonably be
expected to protect, rather than harm, the financial or economic interests of
Victoria taxpayers."
Order No. 116-1996 - A Request for Review of the College of Physicians and
Surgeons of B.C.'s Decision to Refuse Access to Records Containing Information
About the Accreditation of Everywoman's Health Centre
The applicant, a pro-life activist, requested from the College of Physicians
and Surgeons of British Columbia all correspondence between the College and
Everywoman's Health Centre from 1990 to 1995. The College refused, stating that
disclosure would be harmful to law enforcement matters, the business interests
of the Centre, and individual or public safety.
The Commissioner concluded that the College's procedure for accreditation of
particular bodies was not a law enforcement investigation as defined in the
Freedom of Information and Protection of Privacy Act. He also found that
disclosure of the information would not be harmful to the business interests of
the Centre. The Commissioner agreed, however, that the College should withhold
a few items of information from disclosure, since its release would pose a
threat to the health or safety of individuals.
Order No. 144-1997 - An Applicant and a Third Party's Request for a Review of
Decisions Made by Greater Vancouver Mental Health Services Society with Respect
to Access to a Complaint File
The applicant, a patient, had filed a complaint with the Greater Vancouver
Mental Health Services Society (GVMHS) about the treatment she received from
her psychiatrist. She requested the records of the subsequent investigation of
her complaint by the GVMHS in order to determine if the GVMHS had "properly and
adequately" assessed her complaints and standard of care. The GVMHS disclosed
some of the records to the patient, but refused to release more, stating that
it would reveal policy advice and unreasonably invade the personal privacy of
the psychiatrist.
The Commissioner found that some of the records in dispute should be released
to the patient, including the name of the consultant hired during the
investigation. He stated: "In the present inquiry, I am persuaded that the
Freedom of Information and Protection of Privacy Act militates in favour of
disclosure of the identity of the consultant, because the personal information
is relevant to a fair determination of the applicant's rights."
The Commissioner also found that the GVMHS had appropriately withheld other
records under the Act, stating that: "While I have considerable sympathy with
the applicant's wish to view exactly what her former psychiatrist has argued or
reported with respect to this specific complaint,...the GVMHS has the basic
responsibility for processing this complaint and is entitled to a considerable
amount of discretion and confidentiality in the process."
Order No. 125-1996 - A Decision of the Vancouver Police Department to Withhold
Law Enforcement Records from an Applicant
An applicant who was convicted in 1983 of multiple counts of rape, attempted
rape, and indecent assault, and who is an inmate of dangerous offender status
at a federal correctional facility, requested investigation records from the
Vancouver Police concerning his past convictions, prosecution, and trial. He
claimed that Vancouver Police and other individuals were part of a conspiracy
against him.
The police refused to disclose the records, stating that disclosure would
reveal law enforcement investigative techniques and would be an unreasonable
invasion of the victims' personal privacy. The Commissioner agreed with police,
concluding that disclosure could reasonably be expected to harm the
effectiveness of police investigative techniques and would invade the personal
privacy of victims.
Order No. 141-1996 - A Decision of the Vancouver Police Department to Sever and
Withhold Records from an Applicant Relating to a Hiring Application, and the
Adequacy of its Search of Records
The applicant, a former police officer, had requested from Vancouver Police
"any and all documents regarding his past employment with the
Department...including all personnel, recruiting, and internal investigations
records pertaining to [his] personal conduct and work habits." Vancouver Police
disclosed 632 of the 945 pages of records, arguing that the information it was
withholding had been compiled as part of an "investigation into a possible
violation of law." It also argued that disclosure of records about its hiring
process would "result in obvious risks to public safety and public confidence
in the police."
The Commissioner rejected the police department's argument, stating that the
withheld records "were not even remotely compiled as part of an investigation."
He also rejected the Department's submission that "the real issue in this
inquiry is greater social interest in protecting the hiring process for sworn
municipal constables pursuant to s.26 of the Police Act...as opposed to
the applicant's right to access information pursuant to the Freedom of
Information and Protection of Privacy Act."
The Commissioner stated: "Whatever the ultimate merits of this argument, it is
obviously not one that moved the Legislature in the province when it enacted
the Freedom of Information and Protection of Privacy Act. There is no
`notwithstanding clause' in the Act that makes it subordinate to the Police
Act."
Order No. 121-1996 - A Decision by the Ministry of Agriculture, Fisheries and
Food to Refuse Access to Computer Backup Tapes Containing Deleted E-mail
The applicant had submitted a request to the Ministry of Agriculture, Fisheries
and Food for all records in the British Columbia Systems Corporation (BCSC)
which contained deleted e-mail originating from, and received by, four named
individuals on various topics. The Ministry refused to disclose the records,
stating that re-creating the deleted electronic files went beyond the technical
capabilities of its normal hardware and software and would reasonably interfere
with its operations.
The Commissioner upheld the Ministry's decision, stating that the applicant's
request would have required a sizable six-month search of deleted e-mail that
was beyond the normal hardware, software, and technical capabilities of the
Ministry.
The Commissioner stated: "When a request for access is received, a public body
has an obligation under...the Act to locate any records, manual or electronic,
that are responsive to the request. For electronic records, this should include
extant data that have been deleted from a system but are still readily
retrievable, and records on archive or backup tapes that are also readily
retrievable without excessive efforts...but I reiterate that unless a
particular e-mail system in fact makes it relatively easy to retrieve deleted
records from a wastebasket or archived or backup tapes, then there is no
obligation on a public body to make an effort under...the Act."
Order No. 154-1997 - A Decision by the Ministry of Forests to Deny a Request
for a Fee Waiver from an Applicant Seeking Records Related to Clayoquot Sound
A political science professor from the University of Victoria requested records
from the Ministry of Forests related to Clayoquot Sound. He was told that he
could review them for a fee of $1410.00, a fee the Ministry stated was to
account for staff time required to prepare the records and supervise their
viewing. The professor requested that the Ministry waive the fee in the public
interest, stating that he planned to catalogue the files for academic and
archival (public) use. The Ministry refused.
The Commissioner found that the Ministry had not properly exercised its
discretion to waive a fee for public interest reasons under the Act. He
concluded that the applicant had succeeded in making a "reasonable and reasoned
effort" in demonstrating why his request for records related to a matter of
public interest and therefore justified a fee waiver.
The Commissioner stated that: "Establishing an Archive is a particularly useful
way to serve the public interest, since such a variety of communities, from
First Nations to local communities, and forest companies, can use it."
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