Case Report – Federal appeal court says FOI requester’s identity matters

30 Aug

The Federal Court of Appeal has issued a unque FOI judgement that turned on the identity of the requester.

On August 12th, the Court held that records supplied to the Minister of Indian Affairs and Northern Development by an Indian band were not exempt under the Access to Information Act “confidential information supplied to government” exemption. Though the Court accepted the records were confidential, it held they were not exempt vis-a-vis the requster because she had an independent right to the records as a band member based on an Indian Act regulation. The requester filed an access request to the Minister because the band imposed a strict confidentiality condition on providing access. The Court held the condition was unlawful and granted access under the ATIA via the Minister.

In reasoning for the Court, Evans J.A. said:

Since the identity of a requester under the AIA is normally confidential, it may be argued that the identity of a particular requester cannot determine whether information is exempt from disclosure under paragraph 20(1)(b). Of course, if the identity of the requester is not disclosed, it will generally not be possible to establish that otherwise confidential documents are not confidential vas-à-vis that person.

In this case, however, Ms Poitras consented to the disclosure to the Band of her identity, in order to establish her status as a Band member. In these very unusual circumstances, and consistently with a broad interpretation of the AIA and a narrow interpretation of the exceptions, I see no reason why the identity of the requester cannot be taken into account to determine whether the information was confidential as against her.

Canada (Indian Affairs and Northern Development) v. Sawridge First Nation, 2009 FCA 245 (CanLII).

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