Information and Privacy Commissioner Jill Clayton released an investigation report today that looked into the use of the “public interest override” provision (section 32) by public bodies under Alberta’s Freedom of Information and Protection of Privacy Act (FOIP Act). Section 32 requires a public body to disclose information if it is in the public interest.

“The COVID-19 pandemic has raised a myriad of privacy issues, but access to information rights cannot be forgotten during what will be a much analyzed period of history,” said Clayton. “This report is timely for government institutions at all levels to consider what information must be made public as they respond to public health, economic and social concerns.”

The report includes an analysis of the public interest override in Alberta, survey results of Alberta public bodies regarding section 32 and a review of public interest disclosures in Canadian jurisdictions.

The investigation found that Alberta public bodies understand and take seriously the requirement to disclose “information about a risk of significant harm to the environment or to the health or safety of the public” (section 32(1)(a)), but rarely turn their minds to disclosing information proactively when it is “clearly in the public interest” (section 32(1)(b)).

“Some public bodies may want clarity from my office on what information is ‘clearly in the public interest’, but ultimately it is public bodies that are in the best position to know what information they hold to make those decisions,” said Clayton. “I want to remind Alberta public bodies that the ‘public interest override’ places a duty upon them to disclose information.”

The investigation recommended that public bodies more often consider section 32(1)(b) as the authority to proactively disclose information, and to document decisions where section 32(1)(b) has been considered whether or not a disclosure is made.

Guidance documents and reviews of open government initiatives, in Alberta and other Canadian jurisdictions, may be helpful to Alberta public bodies in determining when and how to disclose information that is “clearly in the public interest”. The report also highlighted the work of Portage College and Alberta police services in developing public interest disclosure policies and procedures.

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