Freedom of Information: A Comparative Legal Survey - Federation of ...

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The sixth exception covers fi les the disclosure of which, “would constitute a clearly unwarranted invasion of
personal privacy”, a relatively strong form of harm test. In practice, courts have applied a modifi ed public
interest test to determine whether or not an invasion of privacy is warranted. The seventh exception relates
to a range of records compiled for law enforcement purposes, all of which, apart from one to protect
confi dential sources of information, have built-in harm tests.
The eighth exception relates to certain reports prepared by a public body responsible for regulating fi nancial
institutions. Once again, although harm may often be presumed, the exception would benefi t from being
explicitly subject to a harm test. The fi nal exception, which is not found in most right to information laws,
relates to geological and geographical information concerning wells – added due to lobbying by the oil
industry – and it is not subject to a harm test. These last two exceptions are seldom used in practice.
Certain records are, pursuant to subsection (c), excluded entirely from the ambit of the Law (these are
commonly referred to as exceptions). These include records relating to enforcement of the criminal law
where the subject is not aware of the investigation and disclosure of the record could reasonably be
expected to interfere with enforcement proceedings, records maintained by a criminal law body under
an informant’s name, unless the status of the informant is public, and records maintained by the Federal
Bureau of Investigation pertaining to foreign intelligence or international terrorism.
Appeals
Applicants must fi rst appeal any refusal to disclose information to the head of the relevant public body. This
internal appeal must be decided within 20 working days and, if the appeal is refused, in whole or in part, the
applicant must be notifi ed of the possibility of judicial review (clause (a)(6)(A)(ii)). In unusual circumstances,
as outlined above in relation to the original request, this period may be extended by written notice, for a
maximum of another 10 days (clause (a)(6)(B)(i)). If there is no response within the stipulated time limits,
the applicant can appeal directly to the courts.
There is no provision for an independent administrative level of appeal. This is a serious shortcoming in the
Law. There are, however, currently some efforts in place to address this. The most recent amendments to
the Law will establish a new Offi ce of Government Information Services within the National Archives and
Records Administration, with a mandate, among other things, or making recommendations for reform of
the system and of mediating disputes between applicants and public bodies, with a view to alleviating the
need for litigation. 331
If the internal appeals system has been exhausted, an appeal will lie to various courts, at the choice of the
applicant (subparagraph (a)(4)(B)). An appeal will also lie to the courts if the time limits for a response have
been exceeded, subject to exceptional circumstances (see above, under Process) (clause (a)(6)(C)(i)).
The defendant public body must fi le a response within 30 days of service of the pleading in the complaint
(subparagraph (a)(4)(C)). The court may require the public body to produce the record for its examination,
in camera if warranted, and require the public body to disclose the record.
The court shall examine the matter de novo, and the burden of proof shall be on the public body to justify
non-disclosure. However, the court is required to accord “substantial weight” to an affi davit of a public
body concerning whether the information falls within the scope of an exception (subparagraph (a)(4)(B)).
When considering appeals relating to fee waivers, the court shall consider the matter de novo, but based
only on the record before the public body (clause (a)(4)(A)(vii)).
The court may, in any case where the complainant “substantially prevails”, order the government to pay
reasonable lawyers fees and other litigation expenses (subparagraph (a)(4)(E)). In case of non-compliance
with an order of the court, the responsible offi cer may be punished for contempt of court (subparagraph
(a)(4)(G)).