On May 14th, the IPC/Ontario dismissed a request for reconsideration based on an asserted change of circumstances, a somewhat common happening given the lengthy period of time it now takes to process an FOI appeal.
The IPC had earlier affirmed a decision to deny access to certain information about the OPP’s use of cell site simulators on the basis that the information could reasonably be expected to “reveal investigative techniques and procedures currently in use in law enforcement.” After the IPC made this appeal decision, the requester learned that the OPP had switched to a new model of simulator, apparently after she made her request and before the IPC made its decision. The requester asked for reconsideration so she did not have to start again (by filing a new request and potentially re-arguing an appeal). The requester argued the Ministry’s exemption claim could not stand in light of the “new evidence.”
Assistant-Commissioner Liang declined the reconsideration request, but only on the basis that the newly proffered evidence would not have led her to make a different decision in any event. Assistant-Commissioner Liang noted that the Ministry had not deliberately withheld key evidence, which the IPC has treated as a basis for reconsideration. She did not comment on whether the Ministry ought to have brought forward the change in circumstances or whether its failure to do so might warrant reconsideration.
Appeal hearings are about the propriety of an access decision that is made at a point in time, though can invite respondent institutions to make representations about prospective harms. It goes without saying that institutions should not misrepresent the state of affairs in existence at the time they file their materials with the IPC. And if they have made accurate representations and the circumstances later change, there should be no duty to bring those circumstances to the attention of the IPC and no consequence for failing to do so. This would be a very heavy and impractical burden to bear, and would do harm to the finality owed to respondents. Requesters can and should be made to file new requests that can be the subject of fresh consideration and new access decisions.
Ontario (Solicitor General) (Re), 2020 CanLII 34928 (ON IPC).