Exactly when should an entire document be withheld because redaction is not reaonable?
Freedom of information adjudicators have used the concept of “disconnected snippets” to delineate; if redaction would leave a reader with meaningless “disconnected snippets,” entire records can rightly be withheld.
The Nova Scotia Court of Appeal, on August 7th, applied similar logic in determining that a set of affidavits “could not be redacted without sacrificing their intelligibility and therefore the utility of public access.” It therefore held that the affidavits could be sealed in whole in compliance with the necessity component of the test from Sherman Estate.
Notably, the Court reviewed cases that establish a second basis for full record withholding – cost. In Patient X v College of Physicians and Surgeons of Nova Scotia, the Nova Scotia Supreme Court held that redacting a 120-page records would be too “painstaking and prone to error” given it included a significant number of handwritten notes. And in Khan v College of Physicians and Surgeons of Ontario, the Ontario Superior Court of Justice reached a similar finding given the record requiring redaction was almost 4,500 pages in length, requiring an error prone hunt for (sensitive) patient information.
Back to freedom of information, where costs are passed through to requesters. In Ontario, the norm is to charge through two minutes a page for redaction. Should a premium be chargeable for handwritten records or records that contain very sensitive information?
Dempsey v. Pagefreezer Software Inc., 2024 NSCA 76 (CanLII).
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