An applicant has a right of access to the records in the custody or under the control of a public body, subject to the limited and specific exceptions set out in the Act. There are two types of exceptions – mandatory exceptions and discretionary exceptions.
This Appendix explains the exceptions in the FOIP Act most commonly applied to contracting records. See the FOIP Guidelines and Practices manual, published by the Access and Privacy, Service Alberta, for more detailed explanations.
2.
General Considerations
Harms test
A number of exceptions in the FOIP Act provide that a record may not or must not be disclosed if disclosure could reasonably be expected to cause a specified harm. The general test for harm under the FOIP Act is whether there is a reasonable expectation of harm flowing from disclosure of the specific information at issue.
The test, established in Order 96-003, has three parts:
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there must be a reasonable expectation of probable harm,
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the harm must constitute damage or detriment and not mere inconvenience, and
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there must be a causal connection between disclosure and the anticipated harm.
For a detailed discussion of the test, see
Practice Note 1,
Applying “Harms” Tests, issued by the Office of the Information and Privacy Commissioner.
Consent to disclosure
A
public body must refuse access to third party information that is subject to the exception for confidential business information (section 16) or the exception for unreasonable invasion of personal privacy (section 17),
unless the third party consents to disclosure. A public body that is considering giving access to a record that may contain information to which section 16 or section 17 applies must give notice to the third party. The third party may consent to disclosure or make representations to the public body as to why the information should not be disclosed. If the third party consents to disclosure, the public body may not withhold the information unless another exception applies to the information.
Exercise of discretion
Where the Act provides for the exercise of discretion in applying an exception, the public body must be able to show that the records were reviewed, that all the relevant
factors were considered and, if the decision is to withhold the information, that there are sound reasons to support the decision. The public body may consult with other public bodies if appropriate.
When exercising discretion a public body should consider
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the general purposes of the Act,
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the wording of the discretionary exception and the interests which the exception attempts to balance,
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whether the applicant’s request may be satisfied by severing some information and providing the applicant with as much information as is reasonably practicable,
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the historical practice of the public body with respect to the release of similar types of records,
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the nature of the record and the extent to which the record is significant or sensitive,
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whether disclosure of the information will increase public confidence in the operation of the public body,
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the age of the record,
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whether there is a definite and compelling need to release the record, and
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whether the Commissioner has ruled that similar types of records or information should or should not be disclosed.
(See
Orders 96-017 and
2000-021.)
Severing
If information
is subject to an exception, but that information can reasonably be severed from the record, the applicant has a right of access to the remainder of the record (section 6(2)). This provision for severing does not apply to records to which a legal privilege in section 27(1) or (2) is claimed (
Order 96-017). The legal privilege must be applied to the entire record
