Interpretation for FOIPPA Policy & Procedures Manual Section 25
Because of the urgency and/or significance of the circumstances that may warrant disclosure under section 25, the head of a public body must ensure that there is no delay that adversely affects the public interest. The head of the public body may require time to provide notice to a third party to whom the information relates and/or to the Commissioner, prior to making a disclosure under section 25. Ministries may require time to proactively consult with CIRMO. However, neither notice to the third party, the Commissioner, nor proactive consultation with CIRMO, should result in a delay that could heighten the risk of harm to the environment, health or safety, or undermine the public interest.
The head is not required to wait for any prescribed period after notifying the third party and the Commissioner before disclosing the information.
In section 25, the release of “information”, as opposed to the release of “records”, means that if information will provide the public, affected parties or applicant, enough detail to avoid harm, or to satisfy the public interest, then it may not be necessary to release the entire record. In many instances the obligation to disclose information will be satisfied by disclosing pertinent, relevant information from a record, without necessitating the disclosure of the entire record in which the information is found. However, in some instances, disclosure of an entire record may be required.
- Releasing information about the location of a pesticide spill contained in a record, but not the detailed record containing scientific data, may be acceptable. However, if the scientific data could enhance the public’s understanding of the pesticide spill or restore public confidence in the public body’s actions regarding the pesticide spill, the public body may decide to disclose this record.
The head of the public body must make a determination as to whether there is a “risk of significant harm.” Each case will need to be assessed on the basis of its own facts, including the nature of the risk involved. Harm must be assessed in accordance with section 25(1)(a) and may be a factor to assess in accordance with section 25(1)(b).
Factors to be considered include, but are not limited to:
- the level of harm anticipated;
- the degree of risk that the harm will occur;
- the immediacy of the harm; and
- the right of the public to make informed choices about the risks to which they are exposed.
"Risk" means the chance or possibility of danger, loss, injury or other adverse consequences. The assessment of whether a risk exists must be made on a case by case basis and include a process for assessing risk. Guidance by generally accepted international or national standards and/or expert advice may be needed to establish whether there is a real risk.
The modifier "significant" ensures that the head makes a determination of the degree of harm that would result. The determination of what constitutes "significant harm" will be made on a case by case basis and should be determined based on a risk assessment informed by ministry-specific expertise. For example, what would significantly harm a small and vulnerable ecosystem might result in only minor damage to a larger and more robust ecosystem.
As with the assessment of risk, the determination of significant harm may require guidance by generally accepted international or national standards and/or expert advice to establish whether there is a real risk.
"Harm to the environment" means damage or detriment to "external conditions affecting the growth of plants and animals" or other adverse consequences.
A risk of significant harm to the environment:
- The accidental release of a pesticide into a stream, which will affect fish and other aquatic life.
A risk of significant harm to the health of the public or a group of people:
- The presence of polio virus in the public drinking water.
A risk of significant harm to the safety of the public or a group of people:
- A natural gas leak which could cause an explosion in a populated area.
When determining whether something is clearly in the public interest, the public body should consider that disclosure is required where a disinterested and reasonable observer, knowing what the information is and knowing all of the circumstances, would conclude that disclosure is plainly and obviously in the public interest.
The public interest must speak to an interest of the greater good of a larger group of people. The public interest affects, or is in the interest of, a significant number of people and is something that transcends the individual or private interest. The public interest can only be determined after analyzing the facts and circumstances of a particular case. In determining what is clearly in the public interest, disclosure is required where a disinterested and reasonable observer, knowing what the information is and knowing all of the circumstances, would conclude that disclosure is plainly and obviously in the public interest. That an individual, group or the public at large, expresses a mere curiosity in a topic does not necessarily constitute something being in the public interest.
A balancing of the public interest disclosure versus non-disclosure will be part of the case-by-case assessment of public interest.
The template notice Letter 25-1: Section 25 Written Notification to the Third Party and the Commissioner as soon as is practicable (Appendix 1), must, if practicable, be given to affected third parties and the Commissioner before information is released under section 25. It is not necessary to wait for a response to be received from such third party notices before the information is released.
It is possible that notification under section 25(3) may occur via different mediums (e.g. the telephone) in order to expedite the third party and the Commissioner’s receipt of the information.
The obligation of when to provide prior notification to third parties and the Commissioner needs to be balanced against the obligation to disclose information without delay. The head must ensure that there is no delay adversely affecting the public interest.
There may be additional considerations required when determining whether or not prior notification is practicable, these should include:
- The immediacy of the anticipated harm;
- Would notification reasonably be expected to threaten, or result in immediate and grave harm to the safety or mental or physical health of a person under section 19 of the Act;
- Would notification unreasonably invade the personal privacy of a third party under section 22 of the Act.
The language to provide the notice required by this subsection is found in Letter 25-1: Section 25 Written Notification to the Third Party and the Commissioner as soon as is practicable (Appendix 1).
When providing required notice, the last known address for the third party found in the records of the public body. There is no requirement that the public body undertake an extensive search in external sources to verify a more current address.