Section 25 - Information must be disclosed if in the public interest

 The section 25 entry in the FOIPPA Policy & Procedure Manual was last updated: July 2017

Overview

Section 25 stipulates that the head of the public body must disclose information where disclosure is clearly in the public interest.

Section Reference

Section 25 Freedom of Information and Protection of Privacy Act

25 (1) Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information

(a) about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or

(b) the disclosure of which is, for any other reason, clearly in the public interest.

(2) Subsection (1) applies despite any other provision of this Act.

(3) Before disclosing information under subsection (1), the head of a public body must, if practicable, notify

(a) any third party to whom the information relates, and

(b) the commissioner.

(4) If it is not practicable to comply with subsection (3), the head of the public body must mail a notice of disclosure in the prescribed form

(a) to the last known address of the third party, and

(b) to the commissioner.

Summary

Section 25 of the Freedom of Information and Protection of Privacy Act (FOIPPA) is a general override provision that requires the head of a public body to disclose information relating to a risk of significant harm to people or the environment, or where disclosure is clearly in the public interest. Even if information attracts an exception to disclosure within Part 2 of the Act or would be restricted from disclosure within Part 3 of the Act, section 25 requires the immediate disclosure of the information. The broad override that section 25 provides necessitates a high threshold for disclosure. The use of this section should require sufficient gravity in that it overrides all other provisions of the Act, and therefore its use should be considered exceptional.

Policy Objective

The objective of the following policy is to support public bodies in complying with the requirements of section 25. This policy provides guidance to public bodies in determining when mandatory section 25 disclosures are necessary and what steps a public body is required to take. In addition, specific direction is provided to ministries to ensure consistent and thoughtful application of section 25 across government.

Section 25 Policy

Identify and Assess Information for Disclosure

Ministries should see specific guidance below.

1. The head of the public body must disclose information in the public interest, as required by section 25 of the FOIPPA.
2. The head of the public body must consider whether another statute applies, notwithstanding FOIPPA, and determine whether or not this may impact the application of section 25.
3. If a disclosure under section 25 is required where more than one public body has joint responsibility for the record or information, each public body’s section 25 obligation will be met so long as a section 25 disclosure is made by one of the responsible public bodies. However, where there is a shared obligation, a public body must not assume that another public body has made a disclosure under section 25 and must confirm disclosure has occurred.
4. Under section 25(1)(a), the head of the public body must disclose information based on a contextual assessment and determination as to whether there is a “risk of significant harm,” which may include a risk of future significant harm, to the environment or to the health or to the safety of the public or a group of people.

The head of the public body may seek guidance based on accepted international or national environmental, health or safety standards to determine risk of harm and significance of harm.

The head of the public body must assess the case-specific facts to determine risk of harm and significance of harm.

The head of the public body may consult subject matter experts to determine risk of harm and significance of harm.

The public body may be required to release information regardless of temporal urgency (i.e. disclosure may still be required despite an absence of urgency).

5. In accordance with section 25(1)(b), the head of the public body must disclose information based on a contextual assessment and determination as to whether information is clearly in the public interest.

The public body must determine what is clearly in the public interest through an analysis of the facts and circumstances of a particular case. The threshold for determining what is clearly in the public interest is not static.

In any given set of circumstances, there may be competing public interests, weighing for and against disclosure, and the threshold will vary according to those interests.

The public body is required to release information when it is clearly in the public interest, regardless of temporal urgency (i.e. disclosure may still be required despite an absence of urgency).

The following are questions that should guide the head of the public body in determining whether or not a specific disclosure is clearly in the public interest:

• Would a disinterested and reasonable observer, knowing what the information is and knowing all of the circumstances, conclude that disclosure is plainly and obviously in the public interest?
• Are the public in general, or in a particular region, debating the issue, holding public forums and/or circulating petitions?
• Is the matter the subject of widespread debate in the media, the Legislature or by other Officers of the Legislature or oversight bodies?

Media coverage may indicate a public interest, but is not proof of this fact.

There may be public interest in the disclosure of information of a subject that is unknown to the media/public.

• Is there evidence of any FOIPPA Part 2 exceptions that may apply to the information in question?

The head of the public body is not entitled to apply Part 2 exceptions when making a disclosure under section 25. However, the head of the public body should consider the interests that underlie the Part 2 exceptions as these will assist the head of the public body in determining whether the information meets the public interest threshold for disclosure.. The head of the public body must consider the nature of the information, the interests engaged, and the impact of disclosure on those interests as factors in assessing whether disclosure is clearly in the public interest, because those exceptions are themselves recognition of a public interest against disclosure.

The head of the public body should also consider whether the release of information (e.g. a summary or media release), as opposed to records, would mitigate any concerns about Part 2 exceptions, and result in more information being disclosed.

• Would disclosure of records or the disclosure of information:
  • contribute to educating the public about the matter;
  • contribute in a substantive way to the information that is already available about the matter;
  • enable or facilitate the expression of public opinion or enable the public to make informed decisions about public matters;
  • contribute in a meaningful way to holding a public body accountable for its actions or decisions;
  • restore public confidence regarding the public body’s approach to a given issue;
  • satisfy the needs of the public interest (i.e. although records or information may relate to a subject that is in the public interest, the disclosure of specific records or information may not satisfy the needs of the public interest)?
• Is there a public interest served by disclosing a risk of harm that did not meet the threshold of section 25(1)(a)?

25(1)(a) speaks to risks of significant harm to the environment or the health or safety of the public or a group of people.

Where a risk does not meet this “significant” threshold, it may meet the “public interest” threshold of 25(1)(b) because the information is about how the public body is managing that risk. This relates to the public interest in government accountability. 

6. The head of the public body may consider for proactive disclosure other types of information the public body receives, holds, or creates.
7. A public body may, for ongoing operational reasons, have already disclosed information under the authority of another statute, policy or operational practice. Where this disclosure has already been made by the public body, a further disclosure of the information or record is likely not required under section 25.

Information that does not meet the section 25 threshold may be disclosed proactively so long as the information does not attract the mandatory exceptions contained in Part 2 of FOIPPA (e.g. cabinet confidence; harm to third party business) or contain personal information. Ministry public bodies should proactively disclose information pursuant to the Open Information and Open Data Policy (PDF).

8. The head of the public body may consider proactive disclosure of other types of information the public body receives, holds, or creates.

The head of the public body may identify section 25 disclosure thresholds where the public body is more likely to receive information that could be about a risk of significant harm, or disclosure of which would clearly be in the public interest. For example, if a ministry’s business relates to food regulation, then contaminated food sources would be a potential area where a section 25 disclosure may be required. If applicable, the head of the public body may create thresholds which illustrate when a risk has become a risk of significant harm.

Notification

Ministries should see specific guidance below.

9. Ministries must, if practicable, notify the Corporate Information and Records Management Office (CIRMO) prior to disclosure.
10. Before disclosing information under section 25, the head of a public body must, if practicable, notify any third party to whom the information relates and the Information and Privacy Commissioner (“the Commissioner”).
11. A notification is “practicable” if, amongst other considerations, it does not result in a delay that adversely affects the environment, the health or safety of the public or group of people, or the public interest. The assessment of what constitutes "practicable" must be made on a case by case basis.
12. Notice to an affected third party under section 25 is intentionally less formal due to the potential urgency of the circumstances. In many cases, a public body may initially give notice to the individual by telephone rather than writing.
13. When it is possible to give written notice before disclosing the information, the head of the public should use Letter 25-1: Section 25 Written Notification to the Third Party and the Commissioner (Appendix 1).
14. Should the head of the public body determine that it is not practicable to provide notification prior to a disclosure, or if verbal notification was provided, the head of the public body must provide written notification using Letter 25-1: Section 25 Written Notification to the Third Party and the Commissioner (Appendix 1) as soon as is practicable.
15. Written notification must contain the following:
    1. That a disclosure is being made under section 25 of FOIPPA;
    2. The name of the public body making the disclosure;
    3. The information that will be disclosed;
    4. How and when the information will be disclosed;
    5. Who the information will be disclosed to;
    6. The reason for the disclosure;
    7. Who made the decision to disclose the information;
    8. The contact information of someone within the public body who can answer any questions, including their name, job title and contact information, and;
    9. Ministries must provide a copy to CIRMO, unless CIRMO has provided an exemption.
16. The head of the public body is not required to wait for any prescribed period of time or for input after notifying the third party and/or the Commissioner, before disclosing information under section 25.

Release of Information

Ministries should see specific guidance below.

17. The head of the public body must assess whether the disclosure of a specific record(s) is required in order to enhance the public’s ability to understand the decisions and/or actions of the public body, or whether general disclosure of a summary of the relevant information contained in those records will satisfy the obligation to disclose.
18. The head of the public body must ensure that only the minimum amount of personal information necessary to mitigate the risk is disclosed.
19. The head of the public body must ensure the continual disclosure of new or updated information throughout the lifecycle of an evolving issue or situation, where required.

In most instances, the one-time release of information will satisfy the public body’s section 25 obligations. In some instances however, there may be a need to maintain an ongoing release of information. This should be assessed based on the unique circumstances of a given disclosure. For example, if a disclosure is made under section 25 that notifies the public of a regional outbreak of the measles, it is possible that subsequent disclosures may be required in order to ensure the public is aware should the measles outbreak spread to additional jurisdictions.

20. The head of the public body must ensure that the information is released in a manner designed to reach the intended audience; i.e. the public, the affected group or the applicant.
21. The head of the public body must consider the appropriate channels that will ensure the information reaches the intended audience (e.g. existing external communication mediums, Government Communications and Public Engagement and/or mainstream media).
22. The head of the public body must approve any release of information under section 25.
23. The head of a public body must disclose information subject to subsection 25(1) even if there has been no formal access request under FOIPPAA.
24. The head of a public body must ensure that there is no delay in releasing the information subject to section 25.

Ministry-Specific Procedure

1. The head of the ministry or appropriate delegate must release information under section 25 pursuant to ministry-specific policy or, in the absence of ministry-specific policy, following proactive consultation with CIRMO.

Consultation with CIRMO is not required if it would result in a delay that could heighten the risk of harm to the environment, health or safety, or undermine the public interest.

2. The Ministry Privacy Officer (MPO), when Ministry circumstances necessitate, must develop, issue and maintain ministry-specific section 25 policies in collaboration with CIRMO.
3. Where Ministry-specific policy, created in accordance with the Privacy Management and Accountability Policy (PMAP), exists:
   1. an employee who identifies record(s) and/or information believed to be subject to section 25, must follow the ministry-specific policy, as directed by their MPO;
   2. the head of the public body, upon receiving notification from an employee, must, pursuant to their ministry-specific policy, determine whether there is a risk of significant harm or that, for any other reason, disclosure is clearly in the public interest.
4. Where Ministry-specific policy does not exist:
   1. an employee who identifies record(s) and/or information believed to be subject to section 25, must immediately forward the record(s) and/or information to the MPO and the head of the public body for decision on release, without delay.
   2. where consultation would not delay the disclosure of information that may affect the environment, health or safety of an individual or group of people, the head of the public body and/or the MPO must consult with CIRMO in order to determine whether there is a risk of significant harm or that, for any other reason, disclosure is clearly in the public interest.

Ministry-Specific Examples

The Ministry of Environment does not have a ministry-specific section 25 policy. Employees in the Fish and Wildlife department determine that there is a substantiated contamination of BC’s freshwater fish supply. Following an evaluation of significance informed by international fishery standards and the advice of experts in the field, employees escalate the issue to the MPO and the Deputy Minister. The Deputy Minister contacts CIRMO for assistance in confirming that the disclosure to the public regarding the freshwater fish supply is appropriate under section 25. The Deputy Minister provides notice to the residents found to be living on the affected lakes and to the Commissioner using the Section 25 Written Notification to the Third Party and the Commissioner (Appendix 1). Public notice is disseminated through the appropriate channels (e.g. existing external communication mediums, Government Communications and Public Engagement and/or mainstream media).

The BC Corrections Branch within the Ministry of Public Safety and Solicitor General relies on ministry-specific policy and subject-specific risk assessment tools to evaluate whether or not an offender presents a significant risk that warrants a public interest disclosure under section 25. Before determining whether to disclose a high risk offender notice to the public under section 25, the head of the public body evaluates the release of a high risk offender against a set of criteria used to determine the likelihood or significance of harm.

Interpretation

For interpretation notes on section 25, Click here.

Appendices

LETTERS:
25-1: Section 25 Written Notification to the Third Party and the Commissioner as soon as is practicable (Appendix 1), prepared in accordance with Schedule 2 of the FOIPPA Regulation

Last updated: July 2017