“My investigation found that these public bodies are not permitted by sections 7 and 10(2) to refuse access requests and that they contravened their duties to assist under section 10(1) in processing these requests,” said Alberta Information and Privacy Commissioner Diane McLeod in a May 12 release.
Section 7 of the Freedom of Information and Protection of Privacy Act (FOIPP) outlines how a request must be made, and s. 10 of the Act permits government departments to refuse to create records in response to requests under certain circumstances.
The investigation was conducted in response to a series of access requests refused by all Alberta government departments, including requests made by the Globe and Mail, as described in the newspaper’s series “Secret Canada.”
The report noted that provincial government departments contravened their duties by, in some cases, requiring applicants to limit the number of topics in an access request to one and placing limitations on the timeframe of the search for records.
The report also found that instances in which departments contravened the Act by requiring applicants to split requests containing multiple topics into multiple requests or to structure requests in a way that allowed them to be completed within 30 days.
McLeod recommended that government departments cease the practice of refusing access requests under s. 7 and adhere to the scheme of the FOIPP Act by assisting applicants to meet the requirements under the section.
The commissioner also concluded that the current practice of provincial government departments with respect to s. 10 did not comply with the Act.
She recommended that government departments follow the scheme of the Act by providing applicants with an explanation when unable to create a record and by providing access to records in a different format than requested if accepted by the applicant.
Separately, in a case concerning an information request made to Alberta Energy, the Alberta Court of Appeal has held that a chambers judge erred in requiring that records found to be responsive to a specific request be released to the requestors without any further review.
The concerned records are related to the recission of a coal policy. Alberta Energy had asserted that some of the records it held were “nonresponsive” to the request. However, the Information and Privacy Commissioner’s adjudicator disagreed and an application for judicial review of that decision was dismissed.
At the judicial review hearing, Alberta Energy had submitted that if the records were found to be “responsive,” they should be remitted back to Alberta Energy for further review as to whether they were exempt from disclosure for other reasons.
A chambers judge declined the request, and Alberta Energy appealed the remedy granted by the chambers judge.
In Alberta Energy v. Alberta (Information and Privacy Commissioner), 2025 ABCA 163, a bench of Justices Frans Slatter, Bernette Ho and Tamara Friesen found that the chambers judge erred in issuing a remedy that was inconsistent with the general scheme of the Act.
“We agree with the appellants that when redacted information is determined to be responsive or relevant to a FOIPP information request, those records should generally be remitted back to the public body involved for review to see if any statutory exceptions apply before being released to the public,” the court noted.
The bench varied the chambers judge’s decision to provide that the records held to be responsive should be submitted back to Alberta Energy for review.
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