Section 57 - Burden of Proof

Overview

Section 57 sets out the conditions under which either the head of the public body, the applicant or the third party must bear the burden of proof at an inquiry into a decision to withhold or disclose information.

Section Reference

Section 57 of the Freedom of Information and Protection of Privacy Act

1. At an inquiry into a decision to refuse an applicant access to all or part of a record, it is up to the head of the public body to prove that the applicant has no right of access to the record or part.
2. However, if the record or part that the applicant is refused access to contains personal information about a third party, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s personal privacy.
3. At an inquiry into a decision to give an applicant access to all or part of a record containing information that relates to a third party,
   1. in the case of personal information, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s personal privacy, and
   2. in any other case, it is up to the third party to prove that the applicant has no right of access to the record or part.

Procedure

The Office of the Information and Privacy Commissioner has established procedures for both oral and written hearings.

Interpretation

Interpretation Note 1 (Section 57(1)):

The burden of proof rests with the public body refusing access to the information unless the request is for personal information of a third party. Under section 57(1), the public body must prove that the information is excepted from release under the Act. Careful documentation of the reasons for denying the request will help meet the burden of proof.

Interpretation Note 2 (Section 57(2)):

In circumstances where a public body has refused to disclose personal information under section 22 (Disclosure harmful to personal privacy), the burden of proof rests on the party seeking release of the information. Under section 57(2), the applicant must show how disclosure would not reasonably invade the personal privacy of the individual to whom the information relates.

Interpretation Note 3 (Section 57(3)):

Where the inquiry concerns a public body’s decision to release information relating to a third party’s personal information, the burden of proof lies with the applicant to show that release will not constitute an unreasonable invasion of privacy.

Where the inquiry concerns a public body’s decision to release third party business information, the burden of proof lies with the third party resisting disclosure. That is the third party must show that the applicant has no right of access to the record.

Sectional Index of Commissioner's Orders

For orders organized by the Act's section numbers, Click here.

For a summary of Commissioner's orders and policy interpretation of key points, Click here.

Last updated: July 26, 2007