Employee ‘misused’ word not enough for City to withhold information: privacy commissioner

By Tyler Marr
July 13, 2018 - 5:00pm

The province’s privacy commissioner has determined the City of Prince Albert incorrectly applied parts of The Local Authority Freedom of Information and Protection of Privacy Act (FOIP) while responding to an access to information request earlier this year.

Ronald Kruzeniski found the city erred when determining that certain parts of an email chain between city staffers should be withheld.

On Dec. 15, 2017, the city received a request for information regarding email chains relating to tender submissions for a Wireless Communication Equipment Tender from 2017. The city responded to the applicant in a letter on Jan. 12, 2018. It granted access to portions of some records but denied access to others per subsections that govern what information can and cannot be held back while fulfilling requests.

Under the act, subsection 18 dictates that local authorities are within their right to withhold records should it contain financial, commercial, scientific, technical or labour relations information that was supplied in confidence.

Emails between administration discussing tenders and opinions of those tenders typically fall under subsection 16, allowing the public authority to refuse access to a record that contains consultations or deliberations.

While the commissioner found the city did properly apply subsection 18 of the act to most of the requested emails — withholding information relating to unit prices and the entire bid forms — faltered when determining if the header, salutation and description of two services in one email and two sentences after the description of the two services, and the email signature should be released. The email details were not made public in the report.

Confusion occurred in that email when a city employee “misused” a word in the first sentence, which the city argued rendered that sentence no longer factual but an option, protecting it under subsection 16. But the commissioner disagreed.

“Subsection 16(1)(b) of LA FOIP is not meant to cover the recitation of facts. It is also not meant to cover the misuse of words,” he wrote in a report dated June 29. “Misusing a word does not change a fact to an opinion. It also does not change a fact to a consultation or deliberation as defined above.”

As a result, the commissioner recommended the city release three emails from Sept. 5, 2017, but sever the unit prices from one and a sentence containing an opinion on the tenders from another. He also recommended the city, and "other public bodies make it clear, in a bidding process, whether all bids will be received explicitly in confidence.”

City Clerk Sherry Person told paNOW, that in accordance with section 45 of the act, she continues to review the commissioner's report and has 30 days to respond to his recommendations and communicate her decision to the commissioner and the individuals involved.

"All the comments we received from the commissioner's office is appreciated. We take it very seriously and we are going to ensure we review this further," she said. 

 

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