24 January 2009

Freedom from Information: myth used as excuse by information commissioner

When the province’s information commissioner backed the Executive Council’s refusal to release information last week, his decision was based in part on a piece of popular mythology about the province’s open records laws.

Here’s the fantasy section from the report:

However, the request, as it stands, involves a considerable volume of material, and according to the estimation provided, there is no way the Department could possibly respond to the request within the legislated timelines, even allowing for the allotment of extra staff and the 30 day extension of time permitted by section 16 of the ATIPPA.

The time limit referred to there is the time limit under section 11 that says a public body has 30 days in which to respond to the request.  The myth is that this means the record(s) must be released within 30 days from the date it is received. Section 16 – also cited – allows for an extension of another 30 days.

What the information commissioner missed in that decision is section 12 which states what the response must contain.

Under the province’s access laws, the public body has 30 days to tell someone requesting information whether or not they will get the information and if some or all of it will be missing, the public body must state why. 

There can be an extension beyond 30 days for a couple of pretty obvious and understandable reasons.  Let’s say there are a huge number of records that can’t be searched or examined within 30 days.  The public body can have more than 30 days to make that preliminary search of the files.  By the same token if the records relate to a third party that might have some concern about disclosure – personal information of sensitive business information – the law allows for an extension so the third party can have a chance to review the request as it relates to that party.

At no point does the act state that the public body must also disclose all the records it will release within 30 or even 60 days.

In fact, there isn’t a time limit anywhere in the act that requires the entire request be turned over within a set period of time.

The reason is simple:  sometimes requests are complicated and they may take a load of time.  Since the goal of the legislation is to make release of information the default setting, no one wanted to create a silly set of rules no one could possibly meet.

That’s why there’s a point in the first post on this access decision that if the department had started to release information  - as it could easily have done – then the person making the request would have been a fool to complain it wasn’t done within a set period of time.  Getting a package of some documents within 60 days or even a chunk within six months is a lot better than a refusal to disclose anything and the use of invented excuses for not complying with the request and with the law.

So why does this silly statement appear in the information commissioner’s decision?  Well, it might be he didn’t get the chance to go look at what the actual legislation said. It also might be that he has worked all this time under a completely false understanding of the law.  Don’t be surprised;  it does happen and people aren’t perfect.  Besides plenty of people who ought to know better insist this 30 days thing is real. They’d be astonished to find it’s as real as Sasquatch.

One thin is certain:  the information commissioner is wrong on this point just as he was wrong about the nature of the request in the first place.

What this decision does – as bad as it is – is support a government department which did not show much sign of wanting to comply with the law and release the information in whole or in part. They hunted for excuses and ultimately, the information commissioner backed them up. It happens much more than people realise.

Since the original post, your humble e-scribbler got an e-mail from the person who made the request. We’ll bring you more detail on it in the near future.  There’s much more to the story than meets the eye.