Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 57 ii) Determine whether the record is related to public health, public safety or protection of the environment. When undertaking the initial review of records, consider immediately whether a public interest “override” may come into play. iii) Consider whether disclosure of the record related to public health, public safety or protection of the environment may be in the public interest. iv) Send a notice to the third party pursuant to section 34 of FOIP. If the records are related to public health, public safety or protection of the environment, government institutions should ask the third party to provide not only representations as to why they consider the information to be exempted from disclosure, but also reasons why disclosure in the public interest should not outweigh in importance the injury involved. The government institution should be very clear about the type of information needed from the third party to decide. v) Analyze the representations of the third party. Once the representations have been received, government institutions should thoroughly analyze the arguments presented by the third party to justify subsection 19(1) exemptions. If the government institution accepts the third party’s representations as substantiating an exemption under subsection 19(1) of FOIP, it must then consider the representations made against disclosure in the public interest. Once a decision is made, the government institution should provide notification procedures as set out in section 37 of FOIP. The following three-part test can be applied: 1. Does the information relate to public health, public safety or protection of the environment Relates to should be given a plain but expansive meaning.130 The phrase should be read in its grammatical and ordinary sense. There is no need to incorporate complex requirements (such as “substantial connection”) for its application, which would be inconsistent with the plain unambiguous meaning of the words of the statute.131 “Relating to” requires some 130 Gertner v. Lawyers’ Professional Indemnity Company, 2011 ONSC 6121 (CanLII) at [32]. 131 Adapted from Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII) at [45].
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