The Paradox of Freedom of Information - Freedom vs. Privacy

by Robert O’Brien

In 1987 the Liberal government at Queens Park passed legislation entitled The Freedom of Information and Privacy Act. The name of the law in itself is a paradox.

The proclaimed purposes of this statute are as follows:

1. to provide a right of access to information under the control of (governmental) institutions in accordance with principles that,

   1. the information should be available to the public

   2. necessary exemptions from the right of access should be limited and specific, and

   3. decisions on the disclosure of government legislation should be reviewed independently of government; and

2. to protect the privacy of individuals with respect to personal information about themselves held by institutions and provide individuals with a right of access to that information.

With two purposes which are inherently contradictory, the reality is that the legislation has become a minefield for litigation and that the Act has been interpreted to protect privacy and to protect the right of government to withhold information.

The Act gives you the right to request access to government-held information including information about you. However on the privacy side of the scale the Act permits a government organization to refuse access to information. There is a right of appeal to the Office of the Information and Privacy Commissioner, a government office which has been established to administer the legislation.

Some of the anomalies of the legislation include as follows:

• A dead person can claim a privacy interest. Information can be withheld about an individual who has been dead for any time less than 30 years.

• There is a presumption that the government shall refuse to disclose personal information to any person other than the individual to whom the information relates unless it falls within eight specific exceptions.

• The government shall refuse to disclose personal information if the disclosure does not constitute an unjustified invasion of personal privacy. The legislation then proceeds to define nine criteria for determining whether a request constitutes an unjustified invasion of personal privacy but the person who makes the decision is the government. As an abundance of precaution, the legislation defines eight situations which are deemed to constitute a personal invasion of personal privacy

• There is a specific provision that the public interest may override the technical aspects of the legislation, but what is in the public interest is not defined and must be established by material evidence

• There is no formal hearing. The person requesting the information files detailed written submissions but never has the opportunity to see or respond to the submissions of the government office refusing access.

In the past twelve years the appeals have tended to favour privacy over freedom of information, notwithstanding the name of the Act. For anyone who is interested in obtaining information from a government office, the Freedom of Information and Privacy Act is not for the unwary. Please feel free to contact our firm if you would like to discuss this or any other litigation related matters.