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Section 20 - Information that will be published or released within 60 days

Last updated on June 7, 2022

Overview

Section 20 is a discretionary exception which allows the head to refuse to disclose information that the public body intends to publicly disclose in the future. 

Section Reference

Section 20 of the  Freedom of Information and Protection of Privacy Act

20 (1) The head of a public body may refuse to disclose to an applicant information 

(a) [Repealed 2011-17-6.]

(b) that, within 60 days after the applicant's request is received, is to be published or released to the public, or

(c)  that must be published or released to the public under an enactment. 

(2) The head of a public body must notify an applicant of the publication or release of information that the head has refused to disclose under subsection (1). 

(3) If the information referred to in subsection (1) (b) is not published or released to the public within 60 days after the applicant's request is received, the head of the public body must disclose the information to the applicant on, or within 30 days of, that date unless the head of the public body is authorized or required to refuse to disclose the information under other sections of this Division. 

Summary

Section 20 is a discretionary exception that can be used to sever information that will be publicly released outside of an access request. This can either be the public body’s intention to release the information within the next 60 days as part of an ad hoc process, or as part of a structured disclosure process (e.g., legislated requirement, or formal proactive disclosure directive). 

If the public body severs information under 20 (1) (b) but does not release the information within the 60-day time frame, the public body must disclose the information within the following 30 days. Section 20 may not be used a second time to refuse disclosure of the information and the timeline may not be extended. 

Policy

  1. When the head of a public body withholds information under section 20 (1), the following additional information must be included in the response to the applicant:  

  • the expected date for when the information will be published or released, and 

  • the expected location for where the information will be published or released. 

Procedure

  1. Preliminary examination 

  2. Line by Line Review 

  3. Exercise of Discretion 

​If the public body proposes to withhold information under section 20, there should be a credible plan in place for publishing or releasing the information within required timelines. 

  1. Inform the Applicant of the Decision

Notify the applicant in writing of the expected release date, and, if possible, where they may obtain a copy. 

  1. Notify applicant of release of information 

Public bodies will need to proactively keep track of any information they withhold under section 20 to follow up with applicant notifications as required by 20 (2).  ​

  1. (If Necessary) Re-open the request

If information withheld under section 20 (1) (b) is not published within 60 days, section 20 (3) requires the public body to re-consider the request and issue a revised response within 30 days. There is no mechanism to extend the time limit established by section 20 (3). 

Interpretation

Interpretation Note 1 (Section 20 (1) (b): 

"within 60 days after the applicant's request is received, is to be published or released to the public” 

The construction of section 20 (1) (b) is future-looking and is intended to be used for information that has not yet been made public at the time of an access request. When a public body receives a request for information already in the public domain, a reasonable response to the applicant is to point them to where the information is available, rather than invoking section 20. 

Published or released to the public 

"Publish" may mean to prepare and distribute and/or make available to the public and may or may not include a charge for accessing the information.   

"Released to the public" means to have made information available to the public without charge. Release can occur actively through distribution of information to the public or passively by providing information to the public at specific locations.  

When using section 20 to withhold information, the public body should be intending to release the exact information being requested in unredacted form. OIPC order F11-22 also notes that the format in which the public body releases information is a relevant consideration for the application of section 20. In that case, the public body made the information available through a searchable database, whereas the applicant was seeking a spreadsheet that would effectively list the contents of that database in a single record. The OIPC adjudicator found that the searchable database was not equivalent to the record that had been requested by the applicant. 

Examples

  • Government receives an audit report about the efficacy of a tax credit scheme. Government intends to release the full audit report but wishes to delay that release for one month in order to review the report and issue a response. Using section 20 to withhold the audit report would be appropriate in this scenario. 
  • A public body commissions a report about cost overruns on a large infrastructure project. Once the report is received by the public body, the communications department plans to publicly release a redacted copy of the report within one month. The public body concurrently receives an access request seeking a copy of the same report and wishes to deny access using section 20.  The access request should be processed normally because the public body is not intending to publicly release all the information contained within the report. 

Published or released to the public under an enactment 

Section 20 (1) (c) recognizes that there are other mechanisms by which a public body may be required to publicly release documents or information. “Enactment” refers broadly to any legislative or regulatory instrument. In deference to those other disclosure mechanisms, the head of the public body may refuse to release this same information within the context of an access request. 

Unlike subsection (b), subsection (c) does not include any timelines for when future public disclosure must occur. Additionally, if the enactment allows for the release of redacted records (e.g., S. 70 of FOIPPA, proactive disclosure directives) then it may be appropriate for the public body to withhold information that may also be redacted in the subsequent release. 

Examples

  • The Budget Transparency and Accountability Act requires the publication of Public Accounts by August 31 each year and sets out the minimum required information that must be included. 
  • The Financial Information Act requires the publication of financial statements for some entities in the broader public sector. 
  • Proactive Disclosure Directives issued by the Minister responsible for FOIPPA require government ministries to proactively disclose various categories of information including expenses, calendars, and lists of contracts. 

Sectional Index of Commissioner's Orders

The Office of the Information and Privacy Commissioner maintains a Sectional Index of Commissioner’s orders organized by the Act’s section numbers. 

 

The information in this manual is not intended to be and should not take the place of legal advice.  

Last updated: June 2022