On October 24, 2019 MHA James Dinn wrote to this Office seeking answers to questions about the applicability of the Access to Information and Protection of Privacy Act, 2015 (ATIPPA, 2015). He asked whether the Act would prohibit the Department of Fisheries and Land Resources from proactively disclosing information relating to the recently reported mass salmon mortality incident. We advised Mr. Dinn that the exceptions to access in the ATIPPA, 2015 only apply where an access to information request has been filed. Unless the information in question is personal information and its disclosure is prohibited by a provision of the Act, ATIPPA, 2015 does not prevent a public body from disclosing other kinds of information proactively.
Mr. Dinn also asked whether the Department of Fisheries and Land Resources was obligated by section 9(3) of ATIPPA, 2015 to proactively disclose information without delay about the mass salmon mortality incident, irrespective of the ATIPPA, 2015 or another statute. Section 9(3) is as follows:
9(3) Whether or not a request for access is made, the head of a public body shall, without delay, disclose to the public, to an affected group of people or to an applicant, information about a risk of significant harm to the environment or to the health or safety of the public or a group of people, the disclosure of which is clearly in the public interest.
Depending on how it is interpreted, section 9(3) could significantly impact the type of information that public bodies are bound to disclose and when they would be required to disclose it. This provision has not yet been subject to any reports or guidance issued by the Office of the Information and Privacy Commissioner, and the question requires careful analysis. On that basis, Commissioner Michael Harvey has decided to proceed with an own-motion investigation in accordance with section 95(1)(a) of ATIPPA, 2015.
The investigation will consider: the information available to the Department or other public bodies regarding the salmon mortality event; when such information became available to them; whether there was evidence of significant harm to the environment or human health or safety; and whether the disclosure of such information would meet the threshold of being “clearly in the public interest.” These considerations will assist the Commissioner in determining, in accordance with section 9(3), whether the Department of Fisheries and Land Resources or other public bodies were or were not obligated to release information about this event at an earlier point in time.
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Director of Research and Quality Assurance