The duty on public bodies to create records under the British Columbia Freedom of Information and Protection of Privacy Act

The Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 [the Act] provides the public in British Columbia with a broad right to disclosure of records held by public bodies. Although public bodies generally do not need to create records not already in existence, s. 6(2) of the Act imposes a limited duty to create records where doing so will not impose an unreasonable burden on the organization. Furthermore, under s. 4(2) of the Act, the public body may be obliged to sever information from an existing record which will, in effect, create a new record. This article reviews the scope of the obligation to create requested records that are not in existence when requested.

 

The Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 [the Act] allows private individuals to apply to public bodies for disclosure of information. Section 2 of the Act lists the purposes of the Act, which include giving the public a right of access to records, and giving individuals a right of access to personal information about themselves.

 

Section 3 of the Act says that, generally, it applies to all records in the custody or under the control of a public body, although certain types of documents are excluded by s. 3. 

 

Section 4 of the Act provides individuals with the right to obtain “any record” i.e. the right to information is not restricted to records containing personal information about the applicant:   

 

4(1) A person who makes a request under section 5 has a right of access to any record in the custody or under the control of a public body, including a record containing personal information about the applicant.

 

Section 4(1) confirms that the Act provides a broad right to apply for information. However, Division 2 of Part 2 (ss. 12 to 22.1) lists restrictions on the scope of disclosure. Types of information exempted from disclosure include those containing legal advice (s. 14) and those containing information which, if disclosed, would be harmful to law enforcement (s. 15), the financial or economic interests of a public body (s. 17), individual or public safety (s. 19), the business interests of a third party (s. 21), or personal privacy (s. 22).

 

As a general rule, public bodies are only required to disclose records already in their possession, they do not need to create records which the applicant would like, but which do not exist. However, s. 6(2) of the Act does impose a limited duty on public bodies to create records which do not yet exist, so long as creating the requested record will not impose an onerous burden on the public body. Furthermore, s. 4(2) may require the public body to sever information from an existing record before disclosing it to the applicant. Severing information effectively creates a new record and so will also require public bodies to expend effort before disclosing requested information.

 

This article reviews and discusses case law, including decisions of the British Columbia Information and Privacy Commissioner (the Commissioner), appointed under s. 37(1) of the Act, dealing with ss. 4(2) and 6(2). The purpose of this article is to provide some insight into the lengths public bodies are expected to go to in creating records which do not already exist.

 

Section 4(2) of the Act describes the duty of public body to sever information before disclosing existing records:  

 

4 (1) A person who makes a request under section 5 has a right of access to any record in the custody or under the control of a public body, including a record containing personal information about the applicant.

(2) The right of access to a record does not extend to information excepted from disclosure under Division 2 of Part 2 of this Part, but if that information can reasonably be severed from a record an applicant has the right of access to the remainder of the record.

(3) The right of access to a record is subject to the payment of any fee required under section 75.

 

The scope of the duty to create records from data which exists in machine readable format is defined by subsection 6(2).

 

6 (1) The head of a public body must make every reasonable effort to assist applicants and to respond without delay to each applicant openly, accurately and completely.

(2) Moreover, the head of a public body must create a record for an applicant if

(a) the record can be created from a machine readable record in the custody or under the control of the public body using its normal computer hardware and software and technical expertise, and

(b) creating the record would not unreasonably interfere with the operations of the public body.

 

In some cases sections 4(2) and 6(2) may both be relevant. For example, for information stored on a computer database, it may be possible to export the data to a program such as Microsoft Excel or Microsoft Access within the parameters set by s. 6(2), but then one may have to consider whether it is unreasonably difficult, under s. 4(2), to sever information exempted from disclosure under the Act.

 

Before reviewing cases dealing with s. 6(2), this section considers some of the key terms in s. 6(2).

 

“Record” is broadly defined in Schedule 1 of the Act and includes “papers and any other thing on which information is recorded or stored by graphic, electronic, mechanical or other means”. Therefore, if information is contained in a computer database for example, the duty to create a record under s. 6(2) may require the public body to print out information from the database and so create a new “record”.

 

Under s. 6(2)(a) of the Act, the public body is only required to create the record if it can be generated from “from a machine readable record in the custody or under the control of the public body”. The Commission has interpreted these words literally and held that public bodies are not required to create new records by collecting and compiling data from non-electronic sources.

 

For example, in Order No. 249-1998; Insurance Corporation of British Columbia, [1998] B.C.I.P.C.D. No. 44 (QL) [Order No. 249-1998; ICBC] the applicant requested a list of law firms that ICBC had used in defending actions brought by an Auto Body shop. Commissioner Flaherty noted at para.19 that ICBC had searched its machine-readable records for payments to law firms but had found none. The Commissioner went on to find that ICBC had acted reasonably in responding to the applicant’s request and was not required to search its paper records to create a list of law firms used.

 

Similarly in Order 01-31; Insurance Corporation of British Columbia, [2001] B.C.I.P.C.D. No. 32 (QL) the public body was not required to compile a record of ICBC vendors or suppliers “whose status has been ... revoked; ... re-instated; ... suspended; ... or refused ... in the history of ICBC”, because such records did not exist in “machine readable format”. See also Order 04-24; Provincial Health Services Authority, [2004] B.C.I.P.C.D. No. 24 (QL).

 

The plain wording of s. 6(2)(a) indicates that the public body is not required to obtain new computer software or hardware to create requested records. Nor is there any obligation to provide staff with additional training so that they have the expertise to create the requested record. In other words, the public body is only required to create records which can be produced using existing tools and skills.

 

Section 6 of the FOIPPA Policy and Procedures Manual of the Ministry of Labour and Citizen’s Services [Policy Manual] (http://www.mser.gov.bc.ca/privacyaccess/manual/toc.htm) states that a “machine readable record” is anything upon which information is stored or recorded such that a computer or other mechanical device can render the information intelligible.

 

The policy definitions page of the Policy Manual states that “unreasonably interfere” means “going beyond the limits of what is reasonable or equitable in time and resources and the impact which this use of resources would have on the public body’s day-to-day activities”.

 

In Crocker v. British Columbia (Information and Privacy Commissioner) (1998), 155 D.L.R. (4th) 220 (B.C.S.C.), Coultas J. provided the following comments on unreasonable interference:

 

[W]hat constitutes an unreasonable interference in the operation of a public body rests on an objective assessment of the facts. What constitutes an unreasonable interference will vary depending on the size and nature of the operation. A public body should not be able to defeat the public access objectives of the Act by providing insufficient resources to its freedom of information officers.

 

In Order 03-19 Re: Ministry of Health Services, [2003] B.C.I.P.C.D. No. 19 (QL) [Order 03-19, Ministry of Health] Commissioner Loukidelis said:

 

One relevant factor [in assessing unreasonably interference] - and there may well be others - will be the burden that creating the record will place on a public body's information systems resources measured in relation to its total resources of that nature. The size of the task, and its complexity, will be relevant to this assessment.

 

Thus, in deciding whether creating the record would unreasonably interfere with its operations, one should consider the time and resources which would be required to create the record requested, and the effect complying with the request would have on the activities of the public body.

 

Section 57 of the Act establishes who the onus proof is on to establish that the applicant has no right of access to a record, or part of a record. However, s. 57 does not specify who bears the onus of showing that creating records requested under s. 6(2) would unreasonably interfere with the operations of the public body.

 

Who bears the onus was considered by Commissioner Flaherty in Order No. 110-1996; Vancouver School Board, [1996] B.C.I.P.C.D. No. 36 (QL). The Commissioner held at para. 5 that because the public body is in a better position to prove such matters, it bears the onus of proving that creating the record would impose an unreasonable burden.

 

This finding has been affirmed in subsequent cases e.g. Order 03-19, Ministry of Health at para. 16.

 

Section 6 of the Policy Manual gives two examples of the types of requests public bodies may receive to create records. The two examples provided are clear cases where public bodies would and would not be required to create new records:

 

A public body’s purchasing department maintains a database of vendor information. The name of the city in the vendor’s address is recorded in a separate field. An applicant requests a list of vendors located in a particular city. The public body does not produce such a report for its own use, but the database has ad hoc reporting capabilities which could be used to run such a report. Little or no special programming is needed and little staff time would be required. In this case, the public body has a duty to create the record.

 

An applicant requests information on the relationship between snow pack and annual growth rates of certain varieties of trees in a number of forest districts.   The public body has two separate databases, one containing data on growth rate of trees and the other containing data on annual snow pack. The public body does not link the data in the way the applicant has requested. The two systems are technically incompatible. In order to produce the requested report, a programmer would have to be hired for several weeks.   In this case, the public body is not required to create the record. The public body may ask the applicant if she or he is willing to pay for a programmer to produce the desired result.

 

While these examples are uncontroversial, they usefully set the boundaries for the grey area in between where it is difficult to tell whether creating the record would be unreasonably onerous.

 

Although each case below is discussed under a heading describing the nature of the request, obviously not all requests for similar information will yield the same result. Rather, each information request must be considered on its own facts to determine whether the record can be created within the parameters of s. 6(2). 

 

In Order 03-19, Ministry of Health, supra, Commissioner Loukidelis considered a request by a journalist for drug prescription information. The journalist was researching usage of stimulants and anti-depressants and requested the Ministry of Health to provide data on the number of prescriptions of particular drugs, and the age and gender of the recipients of those drugs. The Ministry said that such records were not available, but admitted that they could be created from the electronic databases the Ministry managed. However, the Ministry claimed that creating the records “would require the use of a significant amount of contractor services” and that it “would unreasonably interfere with the Ministry operations”: Order 03-19, Ministry of Health at para. 20. In particular the Ministry said that creating the records would cost $5,280, would delay it from responding to other queries, and would prevent it from getting on with other projects. As well, said the Ministry, to meet the 30 day deadline under the Act, it would have to reschedule tasks which would result in additional costs. 

 

Commissioner Loukidelis said the following regarding the duty to create records:

 

The Act contemplates the creation of records, which will always require some effort and institutional resources. What is an unreasonable interference with operations must be assessed on a case-by-case basis… [The] provisions contemplate some interference with operations being acceptable. An assessment of the circumstances of each case is necessary before one can determine whether an interference with operations is or is not unreasonable.

            (Order 03-19, Ministry of Health at para. 25)

 

Ultimately in Order 03-19, Ministry of Health, Commissioner Loukidelis found that the Ministry was required to create the requested records. Although some 48 hours of programming time would be required to create the records, the Commissioner noted that programming was a regular part of complying with information requests made to the Ministry. Considering the total resources devoted to responding to requests, the Commissioner did not consider the burden in this case to be unreasonable.

 

The other issue dealt with in Order 03-19, Ministry of Health was whether the journalist was required, under s. 75 of the Act, to pay the cost of creating the records. The Commissioner held that although the news article was being written for a commercial newspaper, the article would disseminate useful information, and so was in the public interest. Accordingly, the Commissioner held that the applicant was not required to pay any fees under s. 75. 

 

In Order 03-16, British Columbia (Ministry of Forest), [2003] B.C.I.P.C.D. No. 16 (QL) [Order 03-16, Ministry of Forest] the applicant applied for information contained in a database administered by the Ministry of Forest. The database contained details of the approximately 19,000 enforcement cases the ministry was dealing with under the various provincial statutes it administered that were related to forestry. The applicant wanted an electronic copy of a snapshot of the database at a given date, with certain data entities and attributes deleted. The volume of information requested was substantial; to print it out would require 28,500 pages.

 

Commissioner Loukidelis determined that the information in the database could be exported into Microsoft Access within the parameters set by s. 6(2):

 

[T]he Ministry could, using CEDAR 2, produce a Microsoft Access ERA snapshot in "four hours of turn it on and walk away." This does not speak to unreasonable interference with the Ministry's operations as contemplated by s. 6(2)(b).

(Order 03-16, Ministry of Forest at para. 39).

 

Later on in that case, in considering the meaning of s. 4(2) [see discussion below], the Commissioner commented on the meaning of s. 6(2) as follows:

 

[I]t is possible for the creation of records using a public body's normal computer hardware and software and technical expertise to still unreasonably interfere with operations of the public body

(Order 03-16, Ministry of Forest at para. 39).

 

This interpretation of s. 6(2) is logical in that it is consistent with the conjunctive “and” joining s. 6(2)(a) and s. 6(2)(b).

 

Having found that the Ministry was required to create the record using Microsoft Access, the commissioner then found that the information exempted from disclosure under Division 2 of Part 2 of the Act could not be severed from the total information exported to Microsoft Access within the parameters set by s. 4(2) of the Act. This aspect of the judgment is discussed below.

 

In Order No. 73-1995; British Columbia (Ministries of Health and Finance and Corporate Relations), [1995] B.C.I.P.C.D. No. 46 [Order No. 73-1995; Health, Finance, and Corporate Relations] Commissioner Flaherty considered a request made to the Ministries of Health and Finance and Corporate Relations for copies of deleted emails. The requested emails were sent in a specified time frame from named officials in the offices of the applicants. The deleted emails were thought to be on computer backup tapes kept for the Ministries by the British Columbia Systems Corporation (BCSC).

 

The Commissioner found that emails are “records” under the Act, but that the record is destroyed when the email is deleted:

 

[T]he purpose of systems backup for any digital records is the recovery of a system from a major crash, the electronic equivalent of trying to get an office operating again after an earthquake or a fire. It recreates the system to the point in time when the disaster occurred. Such backup for disaster recovery, as I prefer to term it, is not like the normal filing drawers of a public body and should not be accessible under the Act in the same way as a filing cabinet, hard-copy, or computer tape records stored in off-site storage.

 

The Commissioner then went on to consider whether, under s. 6(2) of the Act the Ministries were obliged to create records containing the emails from the “machine readable data” on the backup tapes. After noting that the Ministries, for their own purposes, may be prepared to retrieve important emails from the backup tapes, doing so was not required under s. 6(2):

 

The somewhat heroic technical and personnel efforts required for both BCSC and the Ministries to reconfigure each tape and reconstitute it on a system comparable to the one that created it in the first place are beyond the standard obligations to users created under sections 5 and 6 of the Act. For example, "[i]t is estimated that as many as 400 discs would be given to the Ministry of Health for this request alone." I also acknowledge that the significant costs of each such recovery effort, as estimated in affidavits prepared for the public bodies, are far beyond the call of duty for a public body under section 6(1) of the Act.

 

The Commissioner was clear that the decision in that case turned on the difficulty associated with retrieving the emails requested in that case. After noting that the retrieval systems used by the Ministries in that case were not at the cutting edge of technological innovation, the Commissioner said:

 

My Order may become technologically obsolete, in the short term, if developments in backup technology makes it a relatively simple and inexpensive matter to reconstitute backup tapes. Even at present, adoption of newer methods could facilitate that process. If backup can be reconstituted very efficiently and effectively, there will be more moral pressure on public bodies to make records accessible to requesters.

 

This confirms that whether creating the record will impose an unreasonable burden on the public body is a fact specific enquiry to be decided on a case by case basis.

 

In Order No. 121-1996; British Columbia (Ministry of Agriculture, Fisheries and Food), [1996] B.C.I.P.C.D. No. 48 [Order No. 121-1996; Agriculture, Fisheries and Food] Commissioner Flaherty considered another request for deleted emails. The Ministry argued that the emails had been deleted and so there were no “records under the Act”, and so the Commission did not have jurisdiction to make any orders. The Commissioner rejected that argument and said that he had “jurisdiction over the disposition of what may have been records under the Act at the time of a request for them”: Order No. 121-1996; Agriculture, Fisheries and Food at para. 15. Commissioner Flaherty noted at para. 17 that the Ministry’s position “could encourage illicit or premature destruction of electronic records in particular so that access to information requests under the Act could not be satisfied.”

 

In that case, the Commissioner held that the Ministry was not required to retrieve the emails from the backup tapes:

 

[T]he applicant's request would have required a sizable search of six months of deleted electronic mail on backup tapes held by BCSC, which was beyond its normal hardware, software and technical capabilities

(Order No. 121-1996; Agriculture, Fisheries and Food at para. 27).

 

In this case the records requested no longer existed at the time of the hearing; if they had existed at the time of the request, they had since have been permanently deleted. Commissioner Flaherty explained at para. 34 that public bodies have a duty to ensure records are not permanently deleted after information requests are made:

 

When a request for access is received, a public body has an obligation under section 6 of the Act to locate any records, manual or electronic, that are responsive to the request. For electronic records, this should include extant data that have been deleted from a system but are still readily retrievable, and records on archive or backup tapes that are also readily retrievable without excessive efforts.

The Commissioner again confirmed that “as technology progresses, and depending on the systems involved, there may be cases where an applicant can reasonably expect such a search to be made”: Order No. 121-1996; Agriculture, Fisheries and Food at para. 23.

 

The commentary to s. 6 in the Policy Manual indicates that public bodies are not required to translate a record from one language to another, or to another medium such as Braille. It also states that public bodies are not required to prepare a transcript of an audio or video tape if one does not already exist.

 

Section 4(2) of the Act says:

 

The right of access to a record does not extend to information excepted from disclosure under Division 2 of Part 2 of this Part, but if that information can reasonably be severed from a record an applicant has the right of access to the remainder of the record.

 

In Order 03-16, Ministry of Forest at para. 53 Commissioner Loukidelis approved of the interpretation of “Reasonably be severed” provided in the Policy Manual:

 

“Reasonably be severed” means that after the excepted information is removed from a record, the remaining information is both intelligible and responsive to the request.

 

In Order No. 324-1999; University of British Columbia, [1999] B.C.I.P.C.D. No. 37 at para. 37 (QL) Commissioner Loukidelis described the duties imposed on public bodies by s. 4(2):

 

This section requires public bodies to review each record in detail - essentially line by line - and to decide which parts "can reasonably be severed" and withheld. This allows the remainder of the record to be disclosed as required by s. 4(2).  This is obviously not a counsel of perfection.  Section 4(2) requires severance to be carried out only where it can "reasonably" be done.  But in the vast majority of cases where a record contains both protected and unprotected information, it will be possible to sever it, in accordance with s. 4(2), and release the unprotected portions of that record. I recognize that the time and energy required to carry out a careful analysis of a record may be considerable in some cases.  This exercise is, however, mandated by s. 4(2) of the Act.

 

In Order No. 20-1994; British Columbia (Attorney General), [1994] B.C.I.P.C.D. No. 23 (QL) Commissioner Flaherty considered whether personal information exempted from disclosure could be effectively severed from a record. The commissioner described the approach public bodies should take when severing exempted information:

 

In my view, the duty under section 4(2) applies to all records covered by the Act.  Public bodies must normally undertake a line-by-line analysis of an entire record to see if severance is possible.

 

Although each case below is discussed under a heading describing the nature of the request, obviously not all requests for similar information will yield the same result. Rather, each information request must be considered on its own facts to determine whether the public body is required to sever exempted or extraneous information under s. 4(2). 

 

As explained above, in Order 03-16, Ministry of Forest Commissioner Loukidelis found that the Ministry was required, using Microsoft Access, to create the record of statutory enforcement cases it was managing. The Commissioner then considered whether the requested information could be severed, from the total information exported into Microsoft Access, within the parameters set by s. 4(2) of the Act i.e. would expenditure of the effort required to sever the requested information be reasonable?

 

Section 6(2) states that it must be possible to create the record using existing hardware and software. The Ministry argued that a similar requirement should be read into s. 4(2), and that the Ministry should not be required to develop new software to sever the records. Commissioner Loukidelis rejected that argument and was not prepared to say that severing an electronic record is qualitatively different from severing a paper record. At para. 51 the Commissioner explained that if public bodies were never required to create or acquire software to sever electronic records, they could circumvent the requirement to sever at all by only keeping electronic records:

 

[A] public body could replace paper records with electronic records and fail, by design or for other reasons, to develop or acquire computer software or hardware, or technical skills, to sever the electronic version of the records. This would automatically qualify as a circumstance in which information excepted from disclosure cannot be reasonably severed and there would be no right of access to the remainder of the record.

 

The Commissioner acknowledged at para. 59 that in addition to considering the quality and usefulness of information remaining after severing is complete, one can consider the burden of severing a record when considering whether protected information can “reasonably” be severed. The Commissioner reviewed evidence that, in that case, special software would need to be developed to sever the requested information, and that doing so would be expensive (“tens of thousands of dollars”: para. 44) and time consuming (the contract to sever would be put to tender: para. 44). Considering that evidence, the Commissioner commented that although the case was “close to the line” (para. 62), the Ministry need not sever the information, and so need not comply with the applicant’s request.

 

Despite the finding in that case, the Commissioner emphasized that in other cases public bodies will have an obligation to sever electronic records by electronic means:

 

If an electronic record is requested, then the severing has to take place, subject only to the limits of the s. 4(2) duty as determined in each case … It is not an option for public bodies to decline to grapple with ensuring that information rights in the Act are as meaningful in relation to large-scale electronic information systems as they are in relation to paper-based record-keeping systems…Public bodies must ensure that their electronic information systems are designed and operated in a way that enables them to provide access to information under the Act. The public has a right to expect that new information technology will enhance, not undermine, information rights under the Act and that public bodies are actively and effectively striving to meet this objective.

(Order 03-16, Ministry of Forest at para. 63-64).

 

Thus, a public body being required to create a record under s. 6(2) will not necessarily lead to the applicant’s request being satisfied – where exempted information must be severed, one must consider whether that process can be completed within the parameters set by s. 4(2) of the Act.

 

As discussed above, in Order No. 249-1998; ICBC Commissioner Flaherty found that ICBC was not required to produce a list of law firms it had employed to defend claims against it because the data did not exist in machine readable format. The finding in that case turned on the fact that the data for the requested record was not already contained in a single existing record.

 

If the requested data already exists in a record in non-electronic form, the public body may be required to sever extraneous or exempted information to “create” the record requested. For example, in Order No. 261-1998; LangleySchool District No. 35, [1998] B.C.I.P.C.D. No. 56 (QL) [Order No. 261-1998; Langley School District] Commissioner Flaherty ordered the School District to sever certain information from its records leaving a summary of how much Ritalin medication had been administered to students in elementary schools during school hours. In that case the applicant, a reporter for the Province Newspaper, was researching the rate of diagnosis of Attention Deficit Hyperactivity Disorder and Attention Deficit Disorder. The School District had lists detailing administration of Ritalin during school hours. The Commissioner found that the School District was required, under s. 4(2), to disclose those lists after severing the private information of students contained on the lists:

 

The applicant is prepared to accept “expurgated copies” of every “Request for Administration of Medicine” relating to Ritalin, if that is the only way she can get the requested information. … Such a procedure may be an inefficient method for a School District to adopt, but it is what the applicant is entitled to under the Act.

(Order No. 261-1998; LangleySchool District at para. 40)

 

In para. 42 the Commissioner noted that s. 4(2) of the Act sets a standard of reasonableness for the amount of severing to be required and that the obligation to sever is not absolute. However, in that case the Commissioner held that the severing could readily be done by the individual School Districts.

 

Regarding the applicant’s alternative submission, that the School Board should be required to make up simple lists and do some elementary counting (Order No. 261-1998; LangleySchool District at para. 43), the Commissioner noted that doing so would not be an onerous task. However, the Commissioner noted at para. 43 that the Act did not require such compilation service and so if the School District chose not to do what might be an easier task of creating a list and doing the simple counting, then “severing the original records is an acceptable alternative”.

 

The following conclusions emerge from a comparison of the decisions in Order No. 249-1998; ICBC and Order No. 261-1998; LangleySchool District.

o       If data for the requested record need be drawn from a number of existing records; the data must be available in a machine readable format to meet the requirements of s. 6(2)(a) [and for the application to succeed the other parameters set by s. 6(2) must also be complied with].

o       If the data for the requested record is contained entirely within a single record, even if the s. 6(2) parameters are not complied with (e.g. the data is not in machine readable format), the public body may be required to “create” the requested record by severing extraneous or private information under s. 4(2).

 

If removing information exempted under Division 2 of Part 2 of the Act is found to be unreasonably onerous under s. 4(2), the applicant’s request will fail. However, if the record does not contain exempted information, but just extraneous information, if removing the extraneous information is found to be unreasonably onerous under s. 4(2), the applicant may choose to request the records in the raw form and then extract the desired information for herself. For example, in Order 04-24; Provincial Health Services Authority, [2004] B.C.I.P.C.D. No. 24 (QL) the applicants s. 6(2) application failed because the public body did not have the raw information in “machine readable format”.  But, at para. 12, Adjudicator Francis said:

 

The applicant is of course free to submit a new request for records from which he himself could extract the information of interest to him.

 

In Order No. 205-1997; Public Service Appeal Board, [1997] B.C.I.P.C.D. No. 67 (QL) [Order No. 205-1997; Public Service Appeal Board] the applicant, who had appeared before the Public Service Appeal Board, requested copies of the audio recording (3.75 recorded hours) which the Board members had created during his hearing. The Board argued that the recordings were not official audio recordings, but just informal backups to assist them - if necessary - in interpreting their own notes of the proceedings or to refresh their memory of an appeal, and as such were not “records” covered by the Act. Commissioner Flaherty ruled that the tape recordings were “records”, and went on to consider the Board’s argument under s. 4(2) that the financial and administrative burden of severing was unreasonable. Commissioner Flaherty held that if the recordings had contained private information of third parties protected by s. 22 of the Act, the Board would have been obliged to sever that private information:

 

While financial, practical, and technical considerations may be relevant to deciding whether excepted information can reasonably be severed from a particular record, I must be careful not to interpret section 4(2) of the Act in a manner which would undermine the Act's stated purpose of promoting more open and accountable public bodies. In the particular circumstances of this application, and having regard to both the affidavit evidence and submissions before me, I am not persuaded that, had it been necessary for the Board to do so, any third-party personal information could not, for financial, practical, or technical reasons, be "reasonably severed from" the tapes. I might conclude otherwise in some extraordinary cases but this is not such a case.

(Order No. 205-1997; Public Service Appeal Board at para. 22).

 

I accept the Board's submission that severing the tapes in this case, if severing indeed had to be done, requires somewhat specialized technical expertise in order to sever and reproduce in compliance with the Act. … But the burden would not have been, in the circumstances of this case and having regard to the length of audiotapes, unreasonably "complex and time-consuming," "costly and administratively burdensome."

(Order No. 205-1997; Public Service Appeal Board at para. 26).

 

In the result Commissioner Flaherty ordered the Board to disclose the records in dispute to the applicant.

 

Disclosure of audio tapes was also considered in Order 03-13; British Columbia (Ministry of Public Safety and Solicitor General), [2003] B.C.I.P.C.D. No. 13 (QL) [Order 03-13; Ministry of Public Safety]. In ordering the Ministry to disclose severed versions of certain of the tapes, Commissioner Loukidelis said:

 

[Section] 4(2) requires the Ministry to sever and disclose the audiotapes of those interviews for which it has disclosed severed transcripts. The information to be withheld is not voluminous and, while I acknowledge that it would take some time and effort to sever this information from the audiotapes, the analyst's estimated four to five hours to do so does not strike me as unreasonable. … [P]ublic bodies must comply with their duty to sever where reasonably possible. While it is not possible to say what the limits of this duty might be in all such cases, the effort needed to sever these few tapes is not so great as to relieve the Ministry of its duty to sever under s. 4(2). Nor can it plausibly be argued that the severing of audio-tapes is, by virtue of the technology, inherently outside the s. 4(2) duty regardless of the actual effort involved in severing. 

(Order 03-13; Ministry of Public Safety at para. 34).

 

In Order 00-38; British Columbia (Workers' Compensation Board), [2000] B.C.I.P.C.D. No. 41 (QL) [Order 00-38; Workers' Compensation Board] Commissioner Loukidelis considered an application by a union for a copy of the WCB's electronic annotation of its collective agreement. The Commissioner held that the electronic annotated agreement was clearly a “record” as defined in Schedule 1 of the Act. To comply with the Act, before disclosing the record the WCB was required to sever information exempted under Division 2 of Part 2 of the Act. However, because the union already had a copy of the particular exempted information in question, the WCB argued that to sever it would be pointless and so severance should not be required. Commissioner Loukidelis dealt with that argument as follows:

 

It is not open to me to excuse the WCB from performing its obligation to sever a record under s. 4(2) where, as here, severance can be done - the Act gives me no authority to do that.

[Order 00-38; Workers' Compensation Board at para. 18].

 

In the result, the WCB was required to provide the annotated agreement to the union, although it was entitled to withhold some of the annotations because they were “advice or recommendations” which were exempted under s. 13(1).

 

Public bodies may be required to create records under either s. 6(2) or s. 4(2) of the Act. The Commission decisions dealing with these provisions strictly apply the prerequisites for triggering the sections e.g. that the data exist in machine readable format for s. 6(2), or that the data all be contained in a single record that can be severed in the case of s. 4(2). However, once the prerequisites are satisfied, the Commission generally requires public bodies to go to significant lengths to provide the records. That time, money, and effort will be required to comply with the request does not mean that the request will be found unreasonable. On the contrary, the Commission acknowledges that effort is required to fulfill the objectives of the Act to provide the public greater access to public records.