Information, Privacy and Data Security Post
FOI Reconsideration Order Highlights Important Timing Issue for Ontario Institutions
Date: May 25, 2020
On May 14th, 2020, the Information and Privacy Commissioner/Ontario dismissed a request for reconsideration based on an asserted change of circumstances, a somewhat common happening given the lengthy period of time it now takes to process a freedom of information appeal.
The IPC had earlier affirmed a decision to deny access to certain information about the use of cell site simulators by the Ontario Provincial Police on the basis that the information could reasonably be expected to “reveal investigative techniques and procedures currently in use in law enforcement.” After the IPC made this appeal decision, the requester learned that the OPP had switched to a new model of simulator, apparently after she made her request and before the IPC made its decision. The requester asked for reconsideration so she did not have to start again (by filing a new request and potentially re-arguing an appeal). The requester argued the Ministry of the Solicitor General’s exemption claim could not stand in light of the “new evidence.”
In Ontario (Solicitor General) (Re), Assistant Commissioner Liang declined the reconsideration request, but only on the basis that the newly proffered evidence would not have led her to make a different decision in any event. The “investigative technique” in need of protection, she explained, was the use of cell site simulators and not the use of the particular model of simulator formerly used by the OPP.
On the reconsideration issue, Assistant Commissioner Liang noted that the Ministry had not deliberately withheld key evidence, which the IPC has treated as a basis for reconsideration. She did not comment on whether the Ministry ought to have brought forward the change in circumstances or whether its failure to do so might warrant reconsideration, therefore leaving the significant issue raised by the appellant undecided.
Appeal hearings are about the propriety of an access decision that is made at a point in time, though they can invite respondent institutions to make representations about prospective harms. It goes without saying that institutions should not misrepresent the state of affairs in existence at the time they file their materials with the IPC. And if they have made accurate representations and the circumstances later change, any duty to bring those circumstances to the attention of the IPC would invite a very heavy and impractical burden. The IPC has not yet recognized such a duty.
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