Ruling against city could prevent lawsuit-wary censorship of public records

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In a rare ruling, Manitoba's information adjudicator has compelled the City of Winnipeg to turn over documents to a private citizen who complained after raw sewage began backing up into her home in August 2017.

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Hey there, time traveller!
This article was published 16/11/2021 (276 days ago), so information in it may no longer be current.

In a rare ruling, Manitoba’s information adjudicator has compelled the City of Winnipeg to turn over documents to a private citizen who complained after raw sewage began backing up into her home in August 2017.

While city administration is appealing the ruling, it could set a precedent by constraining public bodies from censoring records on the basis they might one day get sued.

“Right now, it’s way too broad,” said University of Winnipeg criminologist Kevin Walby, who has written frequently about Manitoba’s freedom-of-information system.

“Right now, it’s not working in favour of citizens who have this right of access, but aren’t getting records a lot of the time.”

The new ruling stems from a Winnipeg woman who filed a claim to the city for $5,846.20 in damage to her home, which the city declined to pay. In August 2018, she requested all the city’s records about the incident, using the Freedom of Information and Protection of Privacy Act. That law stipulates that all Manitoba government bodies must provide citizens with records that aren’t confidential.

The city blanked out almost all the records, citing exemptions for information that could hurt a public body if litigation occurs.

The citizen appealed to the Manitoba ombudsman, who ruled in March 2021 that city officials were stretching their use of those exceptions, given that just one per cent of claims to the city result in someone actually filing a lawsuit.

The city didn’t comply, so the ombudsman referred the case in April to the information and privacy adjudicator, a position created in 2011 that has only ever ruled on one case, back in 2015.

In an Oct. 14 ruling, which the adjudicator recently posted online, he ordered the city to provide the records, bureaucrats can’t just withhold any records that might possibly lead to legal action, unless they establish a real risk that providing the information would harm the city.

Walby said government bodies often use that exemption as a matter of course, even if the ombudsman ends up striking it down.

“A lot of times I think it’s a kind of bluff,” said Walby.

“A lot of public bodies interpret these sections of the act in an over-broad manner, and they go a little overboard with them. This means that fewer whole records are released (and) there are more redactions.”

During the adjudicator process, the City of Winnipeg opted against sharing the actual uncensored records with him, arguing that statements from bureaucrats were enough grounds for the adjudicator to make a decision.

Yet the city is now seeking a judicial review, arguing in a Nov. 8 court application that the adjudicator “violated… procedural fairness” and that claims for damage are indeed “part of the adversarial process under which litigation privilege applies.”

The Court of Queen’s Bench is set to hear arguments Nov. 25.

The citizen with the sewage issue did not reply to a Monday interview request.

dylan.robertson@freepress.mb.ca

Freedom-of-information adjudicator ruling and judicial appeal

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