More On Freedom of Information

I have a significant concern about whether the City understands how the provisions of the Municipal Freedom of Information Act apply. My concern is based on the comments made in a radio interview by the City Clerk.

Excuse me while we get into the Black Letter Law in this BLOG. After reading some of the statutory language, you will understand why lawyers are so much fun at parties!

On Melanie Deveau’s show on CKLW, the City Clerk talked about the mandatory sections of the Act that would prevent the disclosure of records. I was troubled that she did not refer also to the general principles of the statute which state that “information should be available to the public” and that “necessary exemptions from the right of access should be limited and specific.” I thought that this was important to tell citizens too.

It seemed to me pretty clear that the public had the right to know except in very specific circumstances. After all, I did not want to be one of those Naysayers mentioned by the Mayor who could not make an informed opinion because information was not available to me upon which I could make a judgment. I wanted to see the City's information too. I did not think that this was too much to ask for.

It seemed so cut and dried when listening to her explanation that I took a look at the Act itself. I must admit that I wasn’t able to find the “mandatory” sections that she was talking about so I wrote to her asking her to set them out for me.

Just so you know, the issue is about the use of the word “shall” or “may” in a statute:

• “Use of “shall” and “may” in statutes also mirrors common usage; ordinarily “shall” is mandatory and “may” is permissive.”

There is a big difference if a statute says one shall do something as distinct from a provision that states one may do something.

She did not respond but Chuck Scarpelli did on her behalf. He seems to handle most of the MFOI requests so I guess he is the expert. Here are the excerpts from the relevant sections that he set out:

• Sec 9 (1) A head shall refuse to disclose a record if the disclosure could reasonably be expected to reveal information the institution has received in confidence from…
  
  10. (1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, if the disclosure could reasonably be expected to,
  
  14. (1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except
  
  (f) if the disclosure does not constitute an unjustified invasion of personal privacy.
  
  (2) A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,
  
  (a) the disclosure is desirable for the purpose of subjecting the activities of the institution to public scrutiny; etc etc.

I am certain that you will notice the word “shall” in each of the sections so one ought to agree with the City Clerk’s position that the sections are “mandatory.”

Not so fast, grasshopper. In each of the sections, it is more than just the word “shall” that has to be considered. For example in section 9, a determination has to be made first “if the disclosure could reasonably be expected to reveal information the institution has received in confidence.” If there is no such reasonable expectation, than the document must be produced. In other words it is not an automatic “refusal.” The “refusal” is limited.

The position is similar in section 10. The “refusal” is not automatic and is limited as well.

Section 14 seems a bit more limiting because we’re dealing with “personal information.” However, it is highly unlikely that there would be very many records in what the Mayor called a “commercial” Tunnel deal as an example that would be considered “personal.” Even with section 14, a judgment has to be made and it is not completely mandatory. For example, dealing with whether an invasion of personal privacy is justified or not.

Accordingly, I did not find the mandatory provisions that the City Clerk seemed to be talking about in my interpretation of the Statute and the sections referred to did not disclose in my opinion an automatic refusal either.

However, let us give the Clerk the benefit of the doubt on those sections and agree that they all are “mandatory.” Unfortunately, we cannot stop there. There is another section that applies and this section was not mentioned at all by the in the interview.

• “Section 16 Exemptions not to apply
  
  An exemption from disclosure of a record under sections 7, 9, 10, 11, 13 and 14 does not apply if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption. “

This section is essential in the interpretation of the statute and in what documents should be revealed. It requires that a judgment be made by the City. It is not all cut and dried as far as I am concerned.

In the sections referred to by Mr. Scarpelli, sections 9, 10 and 14, there is an override from exemption if “a compelling public interest… outweighs the purpose of the exemption.”

Was that judgment made by the City? If not,why not? If the City Clerk did not mention it, perhaps she did not know about the section and it was not considered when dealing with the WeACT application. There is no doubt that there is a compelling public interest in the audit and in the Tunnel deal. It would clearly outweigh any reason not to disclose.

In the circumstances, if this section was not considered, then WeACT was not treated properly and in accordance with the statute. There is no evidence that the Clerk gave during her interview that section 16 was considered at all or that there was a realization that the sections quoted were not mandatory.

If these are the facts, then in my opinion the City has no justification for failing to disclose the documents. I’m certain that an arrangement can be made to narrow the scope and reduce the amount of photocopying to make this matter manageable so that the documents can be revealed immediately.

Accordingly, Mr. Schnurr can reveal them to citizens soon. If he cannot, then Daryl Newcombe of EH-News can since he asked for 2 specific dosuments. I wonder if City Hall will try and and block access to him!