IV. Requests for Review

To request a review, an applicant must write to the Commissioner's Office within 30 days of receiving a public body's written decision about records and ask the Commissioner to review it. The applicant is required to attach a copy of the original request to the public body and a copy of the public body's response. There is no fee for requesting a review of a public body's decision about records.

Individuals who are not applicants for records may become involved as third parties in a request for review because they have been notified by a public body that their information is included in records requested by an applicant. Third parties may request a review by the Commissioner if they wish to oppose a public body's decision to release records containing their information.

Portfolio Officers have 90 days within which to investigate or mediate a request for review. A Portfolio Officer will review the public body's decision, discuss the matter with the applicant and the public body, and look at any records in dispute. Portfolio Officers have authority from the Commissioner to assist parties to resolve the dispute by mediation. If the parties are able to agree to a mediated settlement, then the request for review is closed. If not, it will proceed to a formal inquiry before the Commissioner.

Of all the requests for review that come to the Information and Privacy Commissioner's Office, over 91 percent are settled without going to a formal inquiry. The remaining cases that come before the Commissioner in a formal inquiry result in an Order.

* For further details on inquiries and Orders, please see the section entitled Commissioner's Orders.

Ministry of Attorney General, Liquor Distribution Branch -Business Records

A brewery requested records from the Liquor Distribution Branch relating to beer sales and minimum pricing policies in British Columbia. The Branch provided the brewery with a large number of records, but withheld information that would reveal business information of other breweries. It also withheld information relating to the Branch's negotiations with other breweries and information that could harm intergovernmental relations. The brewery requested that the Commissioner's Office review these decisions.

As part of the mediation process, the Office consulted extensively with the parties. The Office confirmed that some of the records had been appropriately withheld under the Freedom of Information and Protection of Privacy Act, since disclosure could harm the financial or economic interests of the Branch in its on-going negotiations with the beer industry or could reveal sensitive correspondence between the Governments of British Columbia, Canada, and the United States. The Office also determined that certain business information about other breweries was appropriate to withhold. The Office was able, however, to assist the parties to agree to a settlement whereby the Branch disclosed some records, information and explanations to the brewery in addition to what it had previously received. The brewery was satisfied with the additional information it received from the Branch relating to its business competitors.

Ministry of Children and Families - Third-Party Personal Information

An applicant applied to the Ministry of Children and Families for all records pertaining to his son, of whom he had joint custody. The applicant attached a court order to his request verifying his joint custody. The Ministry requested from the applicant verification from the court registry that the order was the last order issued. The applicant objected to this request since he no longer resided in the area of the province where the custody order was registered and because there would be difficulty and delays involved in acquiring such a document. The Ministry subsequently denied the applicant's request. The applicant then requested a review, stating that the Ministry's request for additional verification beyond the court custody document was unreasonable.

Through mediation, the Commissioner's Office clarified that the Ministry's request for the court registry document would provide only limited assurance to the Ministry of the most current custody order, since verification would come from one court registry only and would not show whether a further custody order existed in another registry office. (Registry offices are not linked.) The applicant maintained that the Ministry would have a false sense of security around the release of information based only on a court registry document that attested to the current validity of the court order. He argued, therefore, that an additional court registry document was unreasonable and unnecessary.

The Office proposed that the applicant provide the Ministry with a sworn affidavit stating that the custody order he was providing was the most current custody order in place. All parties accepted this solution and the case was resolved.

Ministry of Environment, Lands and Parks - Complaint Records

An applicant requested correspondence from the Ministry of Environment, Lands and Parks that had been written by a complainant expressing concerns about the applicant, the applicant's construction material company, and the applicant's spouse.

Pursuant to Ministry policy, the Ministry refused to confirm or deny the existence of any such correspondence in order to protect the complainant's privacy. The applicant requested a review of this decision by the Information and Privacy Commissioner.

Through mediation, the Commissioner's Office determined that the applicant's main concern was administrative fairness issues, since certain regulatory authorities appeared to have taken action against the applicant's company based solely on individual complaints, rather than conducting their own independent investigations. The Office advised the applicant about effective avenues for redress. During mediation, the applicant also received a large package of records from another public body to which she had made an information request, which confirmed many of her suspicions. She concluded she had adequate information to secure the understanding she wanted to achieve with the regulatory bodies and which would resolve the complaints about her from one particular person.

Ministry of Environment, Lands and Parks and Ministry of Employment and Investment, Mines Branch - Business and Technical Records

A lawyer representing an automotive fuel company made a large cross-ministry request for any and all information held by the province relating to a certain proprietary fuel additive. The Ministries realized that disclosure of some of this information could harm the third-party business interests
of certain auto manufacturers, since their technical information was on file with the Ministries and would be captured by the request. As required by the Freedom of Information and Protection of Privacy Act, the Ministries notified the affected manufacturers to get their position on the release of this information. A number of them strongly objected to release of their information on the grounds that it was confidential, it had been supplied to the Ministers' offices in confidence, and its release could reveal trade secrets and put the manufacturers at a competitive disadvantage. After considering the arguments and the requirements of the Act, the Ministries decided to give partial access to the records. The affected manufacturers requested a review.

During mediation, the Commissioner's Office conducted extensive negotiations with the parties to clarify what counsel for the applicant specifically required. The Office identified for the parties what information would be appropriate for disclosure. The parties were able to settle all outstanding issues and the Ministries made the appropriate severances to protect sensitive technical and commercial information.

Ministry of Environment, Lands and Parks - Environmental Studies

An applicant requested from the Ministry of Environment, Lands and Parks environmental impact soil studies for a waterfront hotel project. He also asked for all documentation relating to the construction of a dike and walkway. The reports were compiled by engineering consultants for the business that was developing the hotel, but the Ministry had copies of these reports on file. The Ministry consulted with the hotel developer, who objected to disclosure, arguing that he had supplied the information to the Ministry in confidence and that release would harm his company's competitive position. The applicant requested a review of this decision.

Through mediation with the parties, the Commissioner's Office uncovered that the applicant was a resident interested in the impact of the development on future costs for his community and that he was not interested in the requested information for business or commercial purposes. The Office suggested that he provide a series of questions to the hotel developer that he wanted answered. The developer in turn agreed to provide to the applicant information from the reports that would answer his questions. The answers were reviewed by the Office to ensure that they accurately reflected the information contained in the reports. The applicant and developer were satisfied with this solution.

Ministry of Finance and Corporate Relations - Adequacy of Search

A political party requested records from the Ministry of Finance and Corporate Relations relating to forest revenues and budget forecasts during the 1995-96 fiscal year. The party received approximately 1,200 pages of information, but was concerned that some information appeared to be missing. It subsequently requested a review by the Commissioner's Office of the adequacy of the Ministry's search for records.

During mediation, the Office engaged in considerable discussions with the Ministry and the political party, which resulted in recommendations by the Office that the parties meet in person to discuss the applicant's concerns. The matter was set down for an inquiry. Just before the inquiry was to take place, however, the Ministry and party agreed to a private meeting so that the Ministry could explain the search and explore the political party's other concerns. At the conclusion of the meeting, the party was satisfied that the Ministry had carried out a reasonable search and the inquiry was cancelled.

Ministry of Health - Fee Estimate

The applicant requested a list of all employees that had accessed his Medical Services Plan (MSP) records over the previous two years. The Ministry assessed a fee of $198.00 to cover the cost of producing the requested information from a machine readable record. The applicant felt that the information should be readily available to him from audit trails within the electronic system, and requested the Commissioner's Office to review the fee estimate.

Based on the fact that there was a suspected breach of confidentiality and that numerous other individuals had made requests for the same information as well, the Ministry decided to waive the fees. It became apparent, however, that back-up tapes for the electronic data system were only available for the previous five months and no audit trail existed for non-electronic records. Given this clarification, the applicant decided that the information would not meet his needs and withdrew the request.

Despite the outcome, the mediation process revealed a number of concerns about the Ministry's ability to monitor and ensure the confidentiality of MSP records which called for change in Ministry practices. The Ministry had informed the applicant that it had been planning for some time to implement "a number of initiatives to track access by staff to claims history information." These initiatives included the elimination of the microfiche records for which no access audit trail had been available; development of time and date logging of access to the Computer Output Laser Disk (COLD); on-line history systems; and a review of who has access to these latter systems. In addition, all MSP staff members would be asked to re-sign a confidentiality agreement.

While these changes did not resolve the applicant's situation, nor provide him with the records he requested, they will help to enhance the future security, confidentiality, and privacy of MSP records. Further, the Commissioner's Office will monitor the MSP data base to ensure that privacy protection for this sensitive data is maximized.

Ministry of Social Services* - Adoption Records

Two parents wanted to review the adoption records of their adopted teenage daughter to determine if there were any hereditary health problems that they should know about. The medical records at issue were generated prior to the daughter's adoption. The Ministry agreed to allow the parents to review the records if they first obtained their daughter's consent. The parents disagreed with the Ministry's decision, claiming that a teenage daughter does not have privacy rights and that there should be no need to get her permission to review her adoption records. They requested a review by the Information and Privacy Commissioner.

After mediation, the Commissioner's Office was able to satisfy the parents that their daughter did have privacy rights under the Freedom of Information and Protection of Privacy Act, since the Commissioner had ruled on this issue in a previous order. The parents subsequently abandoned the request.

* The Ministry of Social Services no longer exists. Its primary responsibilities have been transferred to two new ministries: the Ministry of Children and Families and the Ministry of Human Resources.

Ministry of Social Services - Burial Records

A mother wanted to know the burial site of her deceased infant, who had been in the care of the Ministry of Social Services twenty-five years ago. The Ministry advised the mother that it was unable to find any records indicating that it had ever taken her child into its care. It told her that it was unlikely the baby had been in its care, since it had not left the hospital. The mother told the Ministry that she was positive that her baby had been in its care because she had been in the Ministry's care at that time also.She asked the Commissioner's Office to review the Ministry's decision.

The Commissioner's Office accessed the new on-line Vital Event Indexes to search the death registrations on behalf of the mother and locate information pertaining to her infant's death. Death registrations are publicly available on this database after twenty years have passed. The Office provided the mother with relevant information and she was able to confirm the burial site.

*See note above.

Insurance Corporation of British Columbia (ICBC) - Vehicle Records

An applicant requested information regarding the transfer history of a vehicle. He had owned the vehicle at one time and was interested to know some of the details relating to subsequent transfers. ICBC provided him with records showing the transfer history, but severed the names, addresses, and driver's licence numbers of the vehicle's subsequent owners. The records did not contain the information the applicant wanted and he requested a review by the Information and Privacy Commissioner.

Through mediation, the Commissioner's Office clarified what information the applicant wanted. ICBC then contacted one of the subsequent owners who agreed to provide some assistance to the applicant. With the owner's consent, ICBC provided the applicant with a record disclosing the owner's telephone number, which the applicant used to contact the owner to ask a specific question about the status of the vehicle. This satisfied the applicant's request.

Workers' Compensation Board (WCB) - Claim Records

The applicant requested records relating to a disability claim which he had filed with the WCB. He was one of a class of individuals who had filed claims for disabilities arising from the same or a similar cause. He wanted information showing what the legal department of the WCB had done while acting on his and other claimants' behalf.

The WCB disclosed records to the applicant in the form of tabular data from which information relating to other applicants had been completely severed. The applicant was not satisfied and asked the Commissioner's Office for a review.

After mediation, the WCB released further records to the applicant with the names and identifying information of other claimants still severed, but which showed the statistical data relating to these other claimants. This enabled the applicant to understand his relative position. The WCB also arranged to have a staff member available to answer the applicant's questions regarding the interpretation of the data, if required.

Workers' Compensation Board - Ergonomic Report

An injured worker had requested from the Workers' Compensation Board a copy of a report on the working conditions at her place of employment. The report was prepared by a WCB ergonomic specialist. The WCB refused to disclose the report, stating that release would be an unreasonable invasion of another claimant's personal privacy.

During mediation, it became clear that the report was not about "working conditions," but was an ergonomic assessment of a specific employee in a specific job. The injured worker, however, worked in the same type of job and believed that the information in the report would assist her in her appeals to the Workers' Compensation Review Board. The Commissioner's Office recommended that the report could be released and personal privacy protected if all of the personal identifiers in the report were removed prior to release. The WCB agreed with this recommendation and released the report to the injured worker with all of the generic information about the ergonomic stresses of the job.

Hospital - External Review Records

A reporter requested a copy of the External Review report of a hospital department. The hospital denied access to the report under section 22(1) of the Act. The reporter asked the Commissioner's Office to review this decision.

Through mediation, the Office determined that the reporter wanted to know if the report covered particular information about the hospital department and its various functions. The reporter clarified that she did not want the personal information of a particular staff member's performance. The hospital disclosed information in the report responding to the narrowed request. It also identified two additional attachments to the report, which it released in keeping with the reporter's clarification. The reporter was satisfied with this response.

Municipality - City Manager's Contract

A member of the media requested a copy of the contract for a municipality's most senior manager. The municipality disclosed most of the contract, including items related to the manager's pay, benefits, and moving expenses. However, the municipality also severed and withheld several clauses related to the termination and renewal of the manager's contract.

During mediation, the Office determined that the withheld items were standard clauses that might be found in any similar contract. It considered the information to be about the senior manager's position, function, or remuneration as an officer or employee of a public body under the Freedom of Information and Protection of Privacy Act, and recommended that the withheld items be released. After further review, the municipality agreed.

Municipality - Complaint Records

An applicant requested all records of complaints made about him to the municipality, including the identity of the complainants. The applicant believed that he was being harassed unjustly by the municipality and a neighbour, and that no substantiated complaints existed. The municipality denied the applicant access to the records on the grounds that it was protecting the identity of the complainants who feared reprisals by the applicant. The applicant requested a review by the Information and Privacy Commissioner.

Through mediation, the Commissioner's Office clarified that the applicant wanted to identify the complainants and the number of complaints made by each one against him. He also wanted to verify if there was substance to each complaint, such as whether there were witnesses and documentation to support the complaint.

The Office proposed that the municipality create a summary of the complaint records for the applicant noting the dates of each complaint and summarizing their contents. The Office also proposed that the municipality include two single figures showing the total number of complaints and the total number of complainants. Individual complainants were not identified. The summary was accepted by all parties as a reasonable solution and the case was closed.

Municipality - Personal Records Reviewed at In Camera Meeting

An employee of a municipality had requested copies of records submitted to the mayor and council at an in camera meeting. The records included information relating to the personnel history of the employee, who had been recently suspended.

The municipality refused to disclose the records under the Freedom of Information and Protection of Privacy Act, stating that disclosure of the information would reveal the substance of the deliberations of an in camera meeting of its elected officials.

Through mediation, the municipality agreed to release the background material provided to the mayor and council, since these records pertained to the subject of deliberations, rather than the substance. Furthermore, all of the background material supplied to the mayor and council was contained on the employee's personnel file.

Municipal Police Department - List of Employees

An applicant requested a list of all police officers employed by a municipal police department in relation to litigation he was pursuing against the department. The department denied access to a complete list, citing possible endangerment to the lives or physical safety of the police officers. However, the department offered to confirm the employment of individual police officers upon request.

During mediation, the Commissioner's Office examined the issue of "endangerment" and reviewed a relevant order from the Ontario information and privacy jurisdiction. In the Ontario case, the order upheld the decision of a police board to withhold a list of all police personnel because disclosure of the list "could reasonably be expected to seriously threaten the safety or health of an individual." Based on the Ontario order and similar language in the British Columbia Freedom of Information and Protection of Privacy Act, the applicant accepted the Office's mediation recommendation to accept the department's decision.

Regional District - Draft Report

An applicant requested the complete original draft of a report prepared for a regional district by an independent consulting firm. The district denied access at first because the report was information that would be released to the public within 60 days. Subsequently, however, the district indicated that the draft report was excepted from disclosure under the Freedom of Information and Protection of Privacy Act because it was policy advice or recommendations developed by or for the district.

The applicant was eventually provided with a copy of the final report once it was completed. However, he asked for a review by the Information and Privacy Commissioner, since he still wanted access to the draft version of the report. He also indicated that he wanted the consultant's field notes.

During mediation, the Office determined that the applicant wanted access to the draft report because he was suspicious of changes made to the report by or at the direction of the district. He explained that he was first told that he couldn't have it, and then that it didn't exist. The Office contacted the district's FOI Coordinator, as well as the individual consultant who prepared the report, and determined that the relevant field notes were retained by the consultant's employer and were not available to the district. The Office further determined that field data was incorporated into the draft report and that any changes to it were of an editorial nature only.

Specifically, the Office noted that no changes had been made to the policy advice or recommendations in the report, and that any suggestions for changes to the draft had been made by using sticky notes, which were then discarded after all copies of the draft report were returned to the consulting firm. It was not clear whether the consulting firm had kept a copy of the report in draft form.

The applicant accepted the Office's recommendation that, given the clarification regarding the development of the report, there was little to be gained by trying to determine whether the consulting firm still had a copy of the draft version of the report and, then, whether the public body wished to withhold any of it under the Freedom of Information and Privacy Act. In addition, the applicant considered it a useful exercise that the Office reminded the district that draft documents are subject to the same consideration as any other records in its custody or under its control.

Regional District - Personal Information

An applicant requested records relating to a regional district's decision to terminate funding for the applicant's care through a program called "Choices in Support for Independent Living." He also requested copies of complaints and concerns about him received by the district. The district responded by releasing the records with the personal information of third parties severed from the correspondence. The applicant was unhappy with the severing and requested a review.

Through mediation, the Commissioner's Office discovered that the applicant could only communicate by typing on a computer and that he was greatly frustrated by the cancellation of his funding and by the complaints lodged against him. Although the Commissioner's Office could only review the severing and could not comment on the accuracy of the information or do anything about the cancellation of his funding, the Office advised him of his right to request a correction of his personal information under the Freedom of Information and Protection of Privacy Act, if that was a concern.

After further discussion and a meeting between the applicant, the district, and the Commissioners' Office, the applicant ultimately accepted the district's position under the Act that it could not release other individuals' personal information to him. However, the dialogue resolved most of the issues between the applicant and the regional district. Further, the Commissioner's Office advised him of additional remedies available to him in the event he felt that he had been treated in a manner which was administratively unfair, such as recourse to the Ombudsman Office.

Regional District - Reclassification Records

Several employees of a regional district requested access to records related to a personnel reclassification process from 1990 to 1996. The request included the results and recommendations of a job equity/pay equity steering committee. The employees also requested access to any notes regarding a related reclassification process.

The regional district denied access, stating that disclosure of the records would harm negotiations of the current reclassification process, then still underway. The district also stated that disclosure would harm the current negotiations of a collective agreement involving, in part, the same reclassification process.

During mediation, the Office first recommended that the regional district sever the records to remove sensitive information affecting the current negotiations and release the rest. The regional district refused to accept this recommendation, but offered to release the requested records in full if its employees ratified the collective agreement under negotiation, arguing that disclosure would then no longer be harmful to negotiations. The actual release was delayed, however, until just prior to the formal inquiry before the Commissioner, when the district disclosed all of the records in full. The inquiry was subsequently cancelled.

Regional District - Third-Party Personal Information

Two dogs had an altercation and one owner asked the regional district (the licencing authority) for the name and address of the other owner. The requesting owner's dog had been injured and she wanted to ask the other owner for compensation. Although this information is often provided by a licensing body, the regional district refused to provide it in this case, stating that disclosure might be harmful to individual or public health or safety. The requesting owner asked the Commissioner's Office to review the district's decision.

During mediation, the Office discussed the issue with each of the parties to clarify their positions. The Office was able to get the parties to agree to talk to each other by telephone, with the goal of understanding their respective concerns. The parties spoke briefly, but were not able to reach a mutual understanding. The requesting owner subsequently decided not to pursue the matter any further, having decided that she had at least accomplished her goal of letting the other owner know of her concerns and that it was not worth proceeding to an inquiry.

School District - Administrative Records

An applicant involved in the business of residential housing development requested a copy of the school district's Capital Plan, as approved by the Minister of Education under the School Act. The Capital Plan, among other things, sets out the district's construction goals for the near future. The school district denied access to the information on the basis that disclosure could result in land speculation, which could harm the economic interests of the school district. The school district did, however, provide the applicant with a copy of the 1996/97 Capital Plan Summary, which had been distributed to the public.

Through mediation, the school district decided to release additional relevant information to the applicant. It also confirmed for the applicant that no capital projects were planned for the area he had identified. This satisfied his request and the case was closed.

School District - Employment Contracts

A local teachers' association requested copies of the employment contracts for school district administrators, including the district superintendent and school principals. The school district consulted with the administrators with respect to the requested disclosure, and some quickly consented to the release of their contracts. Other administrators refused to give their consent, considering any disclosure to be an unreasonable invasion of their personal privacy.

Through mediation, it became clear that disclosure of the contracts would not be an unreasonable invasion of personal privacy, since the contracts only contained information about the administrators' positions, functions, and remuneration as employees of a public body. In the Act, disclosure of this information is not considered an unreasonable invasion of privacy. The administrators then agreed to disclosure and the applicant accepted that this information satisfied his request.

Self-Governing Professional Body - Complaint Records

A former client of a member of a self-governing professional body had complained about the conduct of the member to the professional body. After the professional body investigated and closed the complaint, the client made an access request for records from the professional body's complaint file. The professional body disclosed most of the records to the client but refused access to the professional member's written response to the original complaint, stating that it would be an unreasonable invasion of the professional member's privacy.

Through mediation, and with the consent of the member, the professional body agreed to disclose the entire record, since it primarily contained details of the former client's treatment and the member's opinions of the client, both of which are the client's personal information under the Freedom of Information and Protection of Privacy Act.

Self-Governing Professional Body - Complaint Records

A member of a self-governing professional body filed a complaint with the professional body about another member. After an investigation, the professional body's ethical conduct committee concluded that there was no basis for the complaint. The professional body did not provide the complainant member with any reasons for its decision. The complainant member then requested a copy of the report that had been submitted to the committee by the investigator. The professional body refused to disclose it, stating that it was a law enforcement issue and that disclosure would breach the confidentiality sections of its governing legislation.

During mediation, the Commissioner's Office recommended to the professional body that it sever law enforcement and personal information from the records and release the report and its supporting documents. The Office pointed out that the applicant had a right to know the grounds on which the ethical conduct committee had arrived at its findings. The professional body offered to create a summary of the complaint records, including a list of documents that the investigator and a volunteer reviewer had reviewed during the investigation. The applicant agreed to accept this offer on an interim basis.

After receiving the summary and meeting with the public body, the applicant stated that he was satisfied with the summary and agreed to close the file.

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