Nova Scotia judge deals with FOI requests, responsiveness and “mixed” e-mails

On October 22nd, Justice Scanlan of the Nova Scotia Supreme Court said the following about the responsiveness of e-mails in disposing of an FOI appeal:

There are a couple of issues that I wish to address further. It appears the initial review officer may have taken the position that the Respondent could not withhold documents on the basis that they were irrelevant. The Respondent referred to those materials as “not applicable”. According to the Respondent the Review Officer suggested there was no recognized exemption under FOIPOP legislation for “non applicable” materials. Any such ruling would defy commonsense. What possible relevance would it be to the Appellant if someone commented in a document that their grandmother had a wart removed from her nose. (Not that any such comment was made in the redacted materials). With e-mail communications the author on a number of occasions mixed personal or non relevant communications with information which was properly disclosed. The personal, non relevant, information is not something to which the Appellant is entitled to access. There are some things in records, such as e-mail, which are clearly irrelevant and should not be disclosed. The types of documents that fall inthe “not applicable” category include, for example notes from unrelated investigations or proceedings. The Appellant has no right to see those types of documents just because they are in an officer’s notebook. As I have noted, to suggest non relevant documents are to be produced on a FOIPOP application defies common sense and the scope of the legislation.

Under a strict analysis the “responsiveness” of an entire record is assessed against the wording of an FOI request. Justice Scanlan supports a more purposive approach (which reflects common practice) in which parts of records that are unresponsive may be redacted.

Stevens v. Nova Scotia (Labour ), 2012 NSSC 367 (CanLII).

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