Refresher: No Required FOIPPA Disclosure of Expert Reports Prepared to assist regulatory investigations

Investigating misconduct and competence of a professional can require the advice of experts. For committees who rely on expert reports to assist them in deciding on how to dispose of a complaint, it is not unusual for complainants to request the disclosure of these reports upon discovering their existence. For regulators who must deal with such requests under the BC Freedom of Information and Protection of Privacy Act, RSBC 1996, c. 165, a disclosure request by a complainant whose complaint was dismissed, made under FOIPPA and refused by a college, can be seen in The College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665. Upon an application by the complainant before the Information and Privacy Commissioner, the College argued reports were protected because they constituted “advice or recommendations developed by or for a public body” under s.13 of FOIPPA. The Commissioner rejected the College’s arguments. [7] On appeal, the B.C. Supreme Court upheld the Commissioner’s rulings. [9] But the Court of Appeal disagreed. [96]

The Court of Appeal held the Commissioner and the lower court erred in finding the reports did not constitute “advice or recommendations”. The Commissioner and the lower court reasoned that because the reports only addressed current facts, and did not address the College’s options for possible future actions, they could not be considered “advice”. [103] The Court of Appeal held, however, the purpose of section 13 was not only to protect information relating to future decisions, but also to ensure the confidentiality of the College’s deliberative process:

104 The Commissioner acknowledged in his reasons that s. 13(1):

…is intended to allow for full and frank discussion within the public service, preventing the harm that would occur if the deliberative process were subject to excessive scrutiny.

105 In my view, s. 13 of the Act recognizes that some degree of deliberative secrecy fosters the decision-making process, by keeping investigations and deliberations focussed on the substantive issues, free of disruption from extensive and routine inquiries. The confidentiality claimed by the College has a similar objective: to allow it to thoroughly investigate a complaint with the open and frank assistance of those experts who have the knowledge and expertise to help in assessing a complaint and deciding how to proceed. (emphasis added)

The Court also observed that the terms “advice” and “recommendations” were used in section 12 of the Act, which deals with Cabinet confidences, and continued:

110 In my view, it is clear from s. 12 that in referring to advice or recommendations, the Legislature intended that “information…the purpose of which is to present background explanations or analysis… for… consideration in making a decision…” is generally included. There is nothing in s. 13 that suggests that a narrower meaning should be given to the words “advice” and “recommendations” where the deliberative secrecy of a public body, rather than of the cabinet and its committees, is in issue. (emphasis added)

The Court therefore concluded the College was entitled to rely on section 13, and was not required to disclose the reports to the complainant. [115]

Notably, regulators under the Health Professions Act may have to disclose reports on which their inquiry committees have relied, as part of disclosing the record of any complaint matter to the Health Professions Review Board.

College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665