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Access to information requests became a sticky proposition for public health authorities in Canada in the latter part of the 2010s. Not only were they required to consider a sometimes conflicting tangle of personal privacy and freedom of information legislation, but those same authorities also had to come to terms with how to properly record, retain, protect, access, and share massive amounts of electronically stored information.

It was in this context that two decisions helped to shed a light on two of the issues that consume this area of the law: discovery costs and how to implement an effective information governance model.

Saskatchewan (Health) (Re), 2019

In Saskatchewan (Health) (Re), 2019 CanLII 22847 (SK IPC), an applicant made the following access to information request:

I am requesting copies of all emails, letters, and any other relevant documents pertaining to these revisions as they pertain to ambulance services between the Ministry of Health, the Health Minister and the Saskatchewan Emergency Medical Services Association.

I am also requesting copies of any texting messages by Ministry of Health officials (including but not limited to [name of individual]) during the Human Services Committee meeting of May 16, 2007 in which the Amendments to the Regional Health Services Act were discussed.

A number of issues arose as a result of that access to information request, but the most interesting one was that no text messages were ever sought, found, or provided to the applicant. The Ministry of Health informed the Tribunal that, despite the fact that text messages were uncontroversially public records subject to the maintenance requirements of existing legislation, no Ministry policy existed to cover the use of text messages.

The Ministry was ordered to conduct a further search of the devices belonging to specific employees for text messages and to bring its policies into compliance with the legislation.

Hamilton Health Sciences (Re), 2017

In Hamilton Health Sciences (Re), 2017 CanLII 21668 (ON IPC), an applicant requested ESI from a hospital in Hamilton, Ontario pursuant to access to information legislation. The hospital located documents relevant to the request, but advised the applicant that a fee of over $4,000 would attach to the provision of the documents.

The applicant applied for a review of the fee, arguing that it constituted a bar to access. The appeal adjudicator disagreed. They found that, because the applicant’s request was fairly characterized as “broad,” the hospital could expect to spend at least the amount of the fee in the search for, and provision of, the requested documents.

The case highlights the increasing importance of ediscovery costs on access to information requests. While new technologies allow for ever greater abilities to store and retrieve information, the cost associated with doing so can become prohibitive as the breadth of the request grows.

People applying for information under access-to-information legislation should be careful to specifically circumscribe the parameters of their request. This will help to limit fees and should have the added benefit of accelerating the response of the government body.

About the Author:

Steven Toews

Steven Toews

Steven Towes is a former prosecutor and defense attorney, who now resides with his wife and labradoodle in Bermuda and offers legal and business writing and consulting services. Tweet him @steventoews.

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