September 25, 2013

Disclosing or withholding records of in camera meetings

Administrative Law
Freedom of Information
Professional Regulation

Regulatory bodies may, despite a FIPPA request, refuse to disclose records that would reveal the substance of deliberations at an in camera meeting of a board or committee, but only where those records would reveal the substance of in camera deliberations, either directly or by permitting accurate inferences to be drawn. The requirements and limitations of this protection are illustrated by a recent decision of the British Columbia Information and Privacy Commissioner in Order F13-08; College of Psychologists of British Columbia, [2013] B.C.I.P.C.D. No. 9.

The decision arose from an applicant’s request under the Freedom of Information and Protection of Privacy Act (“FIPPA”) for (among other information*) a copy of an organizational review conducted by a management consultant and commissioned by the College of Psychologists. The consultant’s review resulted in a 35-page report presented to the college’s board. The college refused to disclose the report under sections 12(3)(b), 13(1), 14 and 22(1) of FIPPA. Section 12(3)(b) authorizes a local public body, like the college, to refuse disclosing information that would reveal the substance of deliberations of its board or a committee if an Act or a regulation authorizes the meeting without the public.

To rely on section 12(3)(b), a local public body must prove (a) statutory authority to meet without the public; (b) a meeting actually was held in the absence of the public; and (c) the information would, if disclosed, reveal the substance of deliberations of the meeting. [8]

The adjudicator clarified that bylaws, when authorized and properly enacted in compliance with a statute, provide the statutory authority that section 12(3)(b) requires. [16] The adjudicator also reviewed the purpose of section 12(3), which is to “protect a public body’s full and frank exploration of issues, and to protect what was said at a meeting about controversial matter, not the material which stimulated the discussion or the outcomes of deliberations in the form of written decisions”. [22]

Respecting the substance of deliberations, the adjudicator applied this test: would disclosure of the report reveal the substance of in camera deliberations either directly or by permitting accurate inferences to be drawn? [23] It is not sufficient that disclosure would reveal the subject of a meeting. [24] Rather, for section 12(3)(b) to authorize a refusal to disclose a record, the record must directly reveal, or allow the reader to accurately infer, such matters as what the board members said for or against any particular course of action, how they weighed or examined the issues, whether there was agreement or disagreement, what was decided and how voting proceeded. [25]

An applicant’s personal knowledge of the local public body in question may be relevant, but in this case, even an applicant with personal knowledge of the college would not have been able to accurately determine the substance of the board’s deliberations. [25] As a result the adjudicator ultimately concluded that section 12(3)(b) did not authorize the college to refuse to disclose the report. [26]

The adjudicator also decided, however, that certain information in the report could not be disclosed, due to an unreasonable invasion of privacy.

The decision highlights that section 12(3)(b) of FIPPA does not protect decisions of a board or committee. It does not extend to the subject of the meeting. Rather, for section 12(3)(b) to apply to a record, the record must reveal the very substance of deliberations, such as which member of the board or committee argued for or against a course of action, how the issues were weighed, or how the members voted.

Order F13-08; College of Psychologists of British Columbia, [2013] B.C.I.P.C.D. No. 9

* The applicant also sought draft materials that the college’s registrar, staff and legal counsel prepared to provide college’s registration committee and its board with advice and recommendations about implementing “substantial equivalence” and developing related bylaws and schedules.  The college properly refused to disclose these materials under section 13(1) of FIPPA.