Sever Information Subject to an Exception
The Act provides the public with the right of access to records, subject to certain limited and specific exceptions. In providing the public with access to as much information as possible, the Act requires public bodies to sever from a record any information that is subject to exception and to release the rest of the information which does not qualify for exception.
- Public bodies are guided by the principle that the purpose of the Act is to release as much information as possible, without injuring a particular public or private interest.
- In responding to a request under the Act, public bodies are required to sever excepted information from the records and release information that does not qualify for exception.
- Severability applies to all forms of records held by public bodies.
- The amount of review and the preparation and production time required for severing are not relevant factors in determining whether or not to sever.
- Staff conduct their reviews using a copy of the record and do not mark the original record.
- Regardless of the severance method used, copies of the records shall indicate, when feasible, the section number(s) of the exception(s), either in the space remaining after the information has been severed or in the margin closest to the severed information. In some cases, particularly law enforcement records, placing the relevant section in the space of the severed information may in itself reveal or imply information that could cause harm (i.e., result in an indirect form of information disclosure). In these circumstances, the public body may omit the section numbers from the severed pages and simply list the relevant section(s) of the Act in the notification letter.
- Public bodies shall keep an unmarked copy of the requested records and, in requests where they excepted information, a copy of the excepted records as released to the applicant.
- Although previous exceptions may be helpful as a guide, each request shall be assessed on its own merits.
- Original records shall not be altered to allow for easy response to requests.
- Initial consideration of severance
While conducting a line by line review of a copy of the requested record, program area and central Information and Privacy Unit (IPU) staff mark any information that may qualify for exception along with the applicable exception. The IPU staff also consider whether the marked text can reasonably be severed from the document, keeping in mind that the resulting record will contain information that no longer falls within an exception to the Act.
Proper severance provides the applicant with information that is both intelligible and responsive to the request. Occasionally, severance will not be practicable because excepted information is so intertwined with releasable information that the remaining information might reveal excepted information. In such cases, staff must sever all the information.
As well, section 9(2)(a) allows the public body to sever information from a record which is not within the scope of the request. The reason for severing must be noted on the record.
- Final decision on severance
The DMIP considers the IPU's recommendations in making a final recommendation to the head of the public body. The head of the public body has ultimate responsibility for what is severed.
- Preparation and marking of the severed records
If the head of a public body decides to withhold information under an exception, that part is severed and the remainder of the record is provided to the applicant (unless another exception applies).
Various methods may be used to sever excepted information:
- Mark the excepted information in a copy of the record with a black marker or other instrument and release a photocopy of the severed photocopy.
- Place white tape over the excepted portions of a copy of the record, photocopy the taped copy and release the photocopy.
- Use a photocopying machine with editing features that are suitable for severing.
The process of severing excepted information will be more complex for non-textual records (e.g., sound recordings, videotapes, computer disks). Public bodies must use a variety of copying and editing techniques to sever excepted information from these records.
A severed record provides the most complete response to the applicant's request that can be managed without revealing excepted information that would cause harm if released. The record resulting from severance no longer contains information that qualifies for exception under the Act.
Whatever method is used, the copies of the records indicate the section number(s) of the exception(s), either in the space remaining after the information has been severed or in the margin closest to the severed information. In some cases, particularly law enforcement records, placing the relevant section in the space of the severed information may in itself reveal or imply information that could cause injury to a particular public or private interest (i.e., result in an indirect form of information disclosure). In these circumstances, the public body may omit the section numbers from the severed pages and simply list the relevant section(s) of the Act in the notification letter.
Where an entire page or several consecutive pages have been severed from a document, IPU staff insert in the appropriate spot a page noting the number of pages severed and the reasons for severing, i.e., the applicable exception with an explanation. Alternatively, the number of excepted pages and the exceptions are listed in the letter to the applicant.
If a portion of a record is not within the scope of the request, that information may be severed from the record in accordance with section 9(2)(a), "If the applicant has asked for a copy under section 5(2) and the record can reasonably be reproduced, a copy of the record or part of the record must be provided with the response". IPU staff insert wording that the information removed is out of scope of the request. For more information, see section 9.
- Explaining severance to the applicant
The response letter to the applicant that accompanies severed records helps to clarify information that has been disrupted by severing by informing the applicant of the section(s) of the Act under which access to the severed information has been refused. The applicant is also told why the severing is necessary and that it allows the release of more information than would otherwise be available. See section 8 for details.
- Maintaining copies of the severed records
Public bodies keep an unmarked copy of the records and, where they withheld information, a copy of the severed records as released to the applicant. This practice helps in dealing with a review by the Commissioner and in handling subsequent requests for the same or similar information.
Copies of previously severed records assist in responding more quickly and efficiently to repeat requests: the requested records can, in many cases, be released without having to review the original records once again for excepted information.
New and different circumstances may favour the release or exception of more information than was advisable with the first request.
Some of the information may have been made public since the original request, meaning that more information can be released in responding to subsequent requests.
A first request for personal information may be from the person concerned and result in full release, while a second request for the same information may be from a third party, who would probably not be entitled to any of the personal information under section 22. Similar arguments may apply to requests for third party business information under section 21.
It is important to remember that exceptions under sections 12, 13 and 16 have time limits. Once these time limits have passed, information can no longer be withheld under those exceptions.
Although previous exceptions may be helpful as a guide, each request is assessed on its own merits.
- Original records
Original records are not altered to allow for easy response to requests. However, once information in a file has been reviewed and any severance that is required has been done, public bodies may wish to consider placing a second copy of the severed records in the original program file. (The practicability of this idea will depend on the type of file, its age and whether it is in constant and active use by a program area.) See Guidelines for the Routine Release of Records Information.
Requests for copies of permits: With the requester’s agreement, sensitive personal information such as the permit holder’s address and telephone number is removed from copies of permits so that they can be released immediately without a formal request.
Copies of the Access Request Review Forms may also be attached to original documents or program files to serve as documentation of decisions to release or withhold the records. They may also be useful for reference if a new request is received for the same record.
Each public body develops filing practices that allow for the release of previously reviewed files and that take into account any changes in the status of the information in the file. The status of a reviewed file may change once the Commissioner has reviewed similar information in another file. The public body updates its filing practices to reflect decisions of the Commissioner.
In many cases, most of the information contained in a record can be released after consideration of relevant factors (e.g., harm). In other cases, however, a record may contain some information that would cause harm if released and which is, therefore, excepted from disclosure under the Act. Where information that falls within an exception can reasonably be severed from a record, subsection 4(2) provides an applicant with a right of access to the remainder of that record.
A public body provides an applicant with as much of a requested record as can be disclosed without revealing information that is being withheld under an exception. The process of severing is important in processing a request within the intent of the Act.
Where a discretionary exception applies, the head of a public body must use discretion not only in applying the exception, but also in determining how much of the information is severed. For this reason, public bodies do a line by line review of the records and release as much information as possible. The underlying purposes of severing and the exercise of discretion are the same: to release as much of the requested information as possible, without causing the harm set out in the exception.
Sarah Smith has requested a copy of a memorandum from the Ministry of Environment, Lands and Parks. The bolded text contained in this memorandum (which follows) indicates information that would be excepted and severed, followed by the relevant exception. In an actual severed document, the bolded wording would be blanked out.
March 1, 2000
To: S. Fraser
Director of Environmental Reserves
From: J. Thompson
Re: Establishment of environmental reserve surrounding Lake Caddis
Friends of Lake Caddis have been lobbying the Minister of Environment, Lands and Parks for the past five years to establish an environmental reserve of one kilometer around the perimeter of Lake Caddis. Lake Caddis is five kilometers from Metropol, a city of 20,000 residents that is growing rapidly. The proponents of the environmental reserve have become increasingly vocal in the past year as residential development has expanded towards Lake Caddis.
Dr. Limnol, an expert in shoreline ecology at the University of Southeastern British Columbia, told the Ministry that it should disregard the representation from this environmental group. She has conducted numerous studies of the Lake Caddis shoreline and felt that strictly controlled development would not cause damage to the area. She recommended development should be restricted around the south end of the lake where there are nesting grounds for the Caddis Caller, a vulnerable bird species. The remainder of the area is not unique and similar ecosystems exist around most lakes in southeastern B.C. [sections 13 and 18].
Two years ago, the Ministry of Environment, Lands and Parks gave approval to Supercourse, a private developer, to proceed with plans for a golf course development on the north shore of the lake. The developer has informed the Ministry that development will be ready to commence in June of next year.
The municipality of Metropol has approached the provincial government to incorporate the remaining lands surrounding Lake Caddis and proceed with proposed residential zoning. The municipality of Metropol has yet to move forward with any plans to incorporate the area, but the mayor has recently informed the Ministry of Forests that Council will be going forward with the incorporation.
The Ministry of Forests has studied the recreational possibilities for the area and has identified considerable recreational value in the area. Road access to the lake is currently unavailable so boating activities have been limited. The Ministry is currently studying the feasibility of developing a recreational park.
A number of options have been identified:
- Cancel the contract with Supercourse and create an environmental reserve restricting all development or resource consumption. Further study is required as to the legal ramifications of cancelling the contract.
- Create an environmental reserve, but allow restricted private development in selected areas.
- Do nothing and allow the municipality to proceed with incorporation and decide what the land should be used for; or
- Develop the resort potential of the land as a provincial recreation park.
From the options above, the Ministry of Environment, Lands and Parks should proceed with promoting the establishment of an environmental reserve that allows restricted private development in designated areas [section 13]. Further study may be required to bolster the argument in favour of the reserve [section 13].
In this memorandum, "development should be restricted around the south end of the lake where there are nesting grounds for the Caddis Caller, a vulnerable bird species. The remainder of the area is not unique and similar ecosystems exist around most lakes in southeastern B.C." would be excepted under section 13 as a recommendation developed for a public body and under section 18 because release would injure conservation efforts. The rest of the paragraph could be released as being intelligible and relevant to the request. Dr. Limnol’s name and affiliation could be released, as she made her recommendation in a report commissioned under contract by the public body. The recommendation would also be severed under section 13.