Included in Discovery: Atlantic Education & the Law – Issue 10

Mark Heighton & Chad Sullivan

Overview

In Marcus Bornfreund v. Mount Allison University, 2022 NBQB 50 the New Brunswick Court of Queen’s Bench firmly rejected a decision by the Ombud regarding a request for information under the New Brunswick Right to Information and Protection of Privacy Act (“RTIPPA”).

Mr. Bornfreund, a lawyer based in Toronto, sought all correspondence involving Mount Allison’s Provost and Vice President, Academic and Research for a one-month period – without regard to any specific subject matter.

Mount Allison denied the request on the basis that it did not comply with the requirements of RTIPPA – in that the request did not identify the subject matter Mr. Bornfreund was interested in.

Specifically, New Brunswick legislation provides:

8(2)      A request for access to a record shall

(a)        specify the record requested or where the record in which the relevant information may be contained is not known to the applicant, provide enough particularity as to time, place and event to enable a person familiar with the subject matter to identify the relevant record

Mr. Bornfreund filed a complaint with the New Brunswick Ombud (the entity currently tasked with RTIPPA matters in New Brunswick).

The Ombud sided with Mr. Bornfreund throughout the complaint process and issued a decision setting out the Ombud’s view as to why Mr. Bornfreund did not need to identify a particular subject matter.

This would have required Mount Allison to retrieve and review approximately 9,400 emails and text messages – without regard to subject matter.

As individuals responsible for processing RTIPPA matters are well aware, gathering the documents would have been a small part of the work involved.  Each document must be reviewed to determine whether the document or certain portions would need to be withheld in accordance with the statutory exceptions to disclosure.

Despite the Ombud’s decision, Mount Allison stood its ground and insisted that Mr. Bornfreund had not complied with the legislation.

Mr. Bornfreund therefore appealed the matter to the New Brunswick Court of Queen’s Bench.

The Court disagreed with the Ombud and upheld Mount Allison’s decision to deny the request.

The Court made certain findings that may also assist public bodies as they navigate access to information requests, including:

1. For the Ombud to take the position that Mr. Bornfreund satisfied the requirements of RTIPPA by stating he was interested in “any events” was “incomprehensible”.
2. RTIPPA is not meant for individuals to make needlessly broad requests in order to go on a “fishing expedition.”
3. The Ombud erred in relying upon decisions from other provinces that have different legislation (something which the New Brunswick Court of Queen’s Bench has commented on previously: see Hans v. St. Thomas University, 2016 NBQB 49 at para. 19).
4. The Ombud erred in failing to give due consideration for the potential privacy rights impacted by the Provost and third parties with whom he had correspondence.
5. Access to information legislation does not only have the goal of ensuring accountability of government and quasi government bodies – but also has other competing interests that would be defeated by unbridled disclosure of information. The Ombud’s undue emphasis on access to information and ignoring all other important considerations led to an erroneous interpretation of RTIPPA.
6. Further, whereas one of the purposes of RTIPPA is to ensure access to public information, a corollary to that right is ensuring a system that is workable, not one where the applicants are permitted to be intentionally and unnecessarily broad and needlessly tying up resources.

Takeaways

Often public bodies find themselves faced with unreasonable demands from applicants under access to information legislation.

This is especially so in provinces like New Brunswick where there is no cost associated with making access to information requests.

In this case, the request was unreasonable in scope (and it was simply not a significant request of the applicant to identify the subject matter he was actually interested in).

More often, applicants can be unreasonable in terms of their reluctance to accept the exceptions claimed by a public body.

It can be discouraging when these disputes are reviewed by a statuary entity (in most provinces – the privacy commissioner) only to have that entity, which is tasked solely with enforcing the legislation, support an unreasonable position taken by an applicant – often at the expense of other legitimate interests at stake.

Further, public bodies are often faced with balancing: (1) complying with the request / findings of the statutory entity; with (2) the costs associated with litigating the matter in Court. This may explain why there are so few decisions from the New Brunswick Court of Queen’s Bench providing much needed guidance for these disputes under the New Brunswick legislation (there are only around 25 reported decisions).

This case is one of those decisions setting out some much-needed guidance.

This update is intended for general information only. If you have questions about the above, please contact a member of our Education Group.

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