Office of the Information and Privacy Commissioner. Guide to LA FOIP, CHAPTER 2, Administration of LA FOIP. Updated 2 March 2023. 39 (6) Where the court finds that a record falls within an exemption, the court shall not order the head to give the applicant access to the record, regardless of whether the exemption requires or merely authorizes the head to refuse to give access to the record. (7) If, with respect to an appeal of a decision of the head regarding the matters mentioned in clauses 38(1)(a.1) to (a.4), the court determines that the decision of the head was not authorized pursuant to this Act, the court may: (a) order the head to reconsider the decision and proceed in accordance with this Act, subject to any conditions that the court considers appropriate; or (b) make any other order that the court considers appropriate. (8) If, with respect to an appeal mentioned in subsection (7), the court finds that the head had authority pursuant to this Act to make the decision that is the subject of the appeal, the court shall not order the head to reconsider the decision. The court’s function is to consider the matter de novo, including, if necessary, a detailed review of the records in issue document by document. The review of records would be in camera.42 De novo means a review of a matter anew, as if the original hearing had not taken place.43 On an appeal de novo, the court is not constrained by the standard of review. It finds the facts and the law.44 In the recent Court of Appeal for Saskatchewan decision, Leo v Global Transportation Hub Authority, 2020 SKCA 91 (CanLII), the court clarified the de novo nature of an appeal pursuant to [section 46 of LA FOIP]. Part VI of LA FOIP does not in any way contemplate that, on an appeal to the Court of King’s Bench, parties can raise any and all provisions of the Act that bear on the question of whether the record in issue may be released. The system of the Act offers no room for a direct appeal to the Court of King’s Bench from the decision of a head, i.e., an appeal that circumvents the application to the Commissioner for a review.45 42 The Local Authority Freedom of Information and Protection of Privacy Act, SS 1990-91, c L-27.1 at s. 47(1)(b). 43 Garner, Bryan A., 2009. Black’s Law Dictionary, Deluxe 10th Edition. St. Paul, Minn.: West Group at p. 837. 44 Gordon v Regina Qu’Appelle Regional Health Authority, 2017 SKKB 291 (CanLII) at [37]. 45 Leo v Global Transportation Hub Authority, 2020 SKCA 91 (CanLII) at [41] and [47]. Although this matter dealt with The Freedom of Information and Protection of Privacy Act, it is relevant as substantially similar provisions can be found in LA FOIP.
RkJQdWJsaXNoZXIy MTgwMjYzOA==