Friday, June 10, 2011

Recent NS Review Report - Freedom of Information & Protection of Privacy Review Office

On June 1, 2011, Nova Scotia Freedom of Information and Protection of Privacy Review Officer, Dulcie McCallum released the following Review

Report   The full Report can be found on our website at  




Report Release Date: June 1, 2011


Public Body: Transportation and Infrastructure Renewal


Primary Issues: Whether the Department of Transportation and Infrastructure Renewal ["Transportation"] appropriately applied the Freedom of Information and Protection of Privacy Act ["Act"] and, in


1. Whether the public interest provision overrides all of the other

exemption(s) claimed by Transportation.

2. Whether Transportation has caused inordinate delay. Whether the adequacy of the search for the Record has contributed to the delay.

Whether Transportation's failure to meet its statutory duty to assist has contributed to the delay.

3. Whether "not responsive" can be used as an exemption.


Secondary Issues: The following are issues that arose during the Review process but which the Review Officer did not need to make Findings and Recommendations in order to dispose of the Review:

1. If the information that withheld under s. 12 of the Act were to be disclosed, whether the conduct of intergovernmental relations between the Government of Nova Scotia and a municipal unit would be harmed.

2. Whether the information withheld under s. 14 of the Act fits the definition of advice or recommendations.

3. If the information withheld under s. 17 of the Act were to be disclosed, whether the government would suffer financial or economic harm.

4. Whether the information withheld under s. 20 of the Act fits the definition of personal information. Whether the disclosure would be an unreasonable invasion of privacy. Whether s. 20(4) of the Act applies.

5. Whether the three-part test applies to the information withheld under s. 21 of the Act.

6. Where it has been determined that a discretionary exemption applies, whether Transportation has properly exercised its discretion to apply it.


Record at Issue: Pursuant to s. 38 of the Act, Transportation has provided the Freedom of Information and Protection of Privacy ["FOIPOP"] Review Office with a copy of the complete Record, including the information withheld from the Applicant. At no time are the contents of the Record disclosed or the Record itself released to the Applicant by the FOIPOP Review Officer or her delegated staff.

The Record consists of a number of document types including letters, emails, meeting minutes, handwritten notes and memorandums. The Applicant has chosen to focus on "key documents".


Summary: An Applicant made multiple Applications for Access to a Record on behalf of a Residents' Group referred to as Protect the Bay. The multiple Requests for Review of the Transportation's decisions to withhold a significant portion of the Records were consolidated into one Review, as the Applications for Access to a Record were the same but for various consecutive time periods. Transportation withheld a large portion of the Record relying on many exemptions and a "not responsive" designation. The Review Officer found that the public interest override was paramount and that it should be applied in this case to release the remainder of the Record except for third party personal information.


Findings: The Review Officer made the following Findings:

1. I agree with Transportation's decision to waive the fees based on public interest.

2. I find that the public interest in s. 31 of the Act is paramount and applies to the entire Record except for personal information of third parties.

3. I find that Transportation caused inordinate delay in this Review.

4. I find that the back and forth trying to pin down the exact parameters and content of the Record contributed to the delay.

5. I find that Transportation essentially ignored my decision to expedite the Review and caused delay by choosing to exceed the time allotments given to public bodies.

6. I find the resulting delays were unnecessary and inappropriate.

7. I find that "not responsive" cannot be used as if it were an exemption to withhold information that does not fit within any of the exemptions simply because the public body does not want to release it.

8. I find there are strings of emails identified as "not responsive" but clearly do not fit this description.

9. I find that Transportation's use of "not responsive" is wholly inappropriate and not permitted under the Nova Scotia legislation.

Citizens have a right to access a Record.

10. I find that "not responsive" has been used by Transportation to shelter access to parts of the Record that are in fact responsive and do not fall under any exemption claimed.


Recommendations: The Review Officer made the following Recommendations to Transportation:

1. Disclose the remainder of the Record, the portion previously withheld under a number of exemptions, with only third party personal information severed, because disclosure is clearly in the public interest. This would include any portion that relates to other projects as it has been identified as part of the responsive Record by Transportation.

2. In future Reviews, Transportation should make every effort to comply with any term or condition imposed by the Review Officer including the condition to expedite a Review.


Key Words: accurate, burden, complete, confidential, consent, delay, discombobulating, discretion, duty to assist, environment, expedited, fees, financial harm, limited and specific, justice delayed, justice denied, onus, open, nonsensical, not responsive, open-house, override, paramount, personal information, public interest, public meeting, third parties, waiver.


Statutes Considered: Freedom of Information and Protection of Privacy Act, ss. 2, 5(2), 7, 31, 38.

Case Authorities Cited: NS Review Reports FI-02-20, FI-08-107, FI-00-29, FI-07-58, FI-07-60, FI-07-72, FI-06-71(M), FI-07-59, FI-10-49/FI-10-51, Grant v. Torstar Corp., 2009 SCC 61, Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23.




Mary Kennedy


Freedom of Information & Protection of Privacy Review Office

Tel: (902) 424-4684

Fax: (902) 424-8303