OVERVIEW

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

SECTION  REFERENCE

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 is a general override provision that obligates the head of a public body to disclose information where disclosure is clearly in the public interest.  Even if information falls within an exception to disclosure, section 25 requires the release of the information.

Whether or not a request for access is made, the head of a public body must disclose, without delay, information to the public, to the applicant or to the individuals affected:

• which reveals a risk of significant harm to the environment or to the health and safety of the public or a group of people; or
  
  

• the disclosure of which is, for any other reason, clearly in the public interest.

Before disclosing information under this section, the head of a public body must, if practicable, notify any third party to whom the information relates and the Commissioner.

POLICY

1. The head of the public body must approve any release of information under section 25.  This approval must not be delegated below the Deputy Minister or equivalent level.
   
   
2. The head of a public body must disclose information falling under subsection 25(1) even if there has been no formal access request under the Act.
   
   
3. The head of a public body must ensure that there is no delay that adversely affects the public interest.  Notification (before the disclosure of information) to any third party to whom the information relates and to the Commissioner is “practicable” if it does not result in delay that adversely affects the public interest.
   
   
4. 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 the Commissioner, before disclosing information under section 25.
   
   
5. 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.

PROCEDURE  

1. The head of the public body determines that there is a risk of significant harm or that, for any other reason, disclosure is clearly in the public interest.
   
   
2. If practicable, notify any third party to whom the information relates and the Commissioner, in writing, before the disclosure of the information.  Notice to an affected third party under section 25 is less formal than notice given under section 23, due to the urgency of the circumstances that would normally exist when the public interest override is invoked.  In many cases, a public body may initially give notice to the individual by telephone rather than writing.  Use the following letters when it is possible (without causing undue delay) to give written notice before disclosing the information:

• Letter 25-1: Notice to Third Party Under Section 25 Prior to Disclosure of Information in Response to an Access Request
  
  

• Letter 25-2: Notice to Third Party Under Section 25 Prior to Disclosure of Information Without an Access Request
  

INTERPRETATION

Interpretation Subsection 25(1)

Whether or not a request for access is made

Any information that meets the criteria specified in section 25 must be disclosed, even if there has not been a formal access request under the Act.

"Must" means that section 25 is mandatory.  The head of a public body must disclose information falling under subsection 25(1).

Without delay

Because of the urgency of the circumstances that would warrant disclosure under section 25, the head of a public body must ensure that there is no delay that adversely affects the public interest.  The head is not required to wait for any prescribed period after notifying the third party and the Commissioner before disclosing the information.

The assessment of what constitutes "without delay" must be made on a case by case basis.  Factors to be considered include:

• the level of harm anticipated;

• the degree of risk that the harm will occur;

• the imminence of the harm;

• measures that could be taken to avoid the harm and the amount of time required for these measures;

• the importance of consulting with other public bodies whose interests may be affected by the disclosure; and,

• the right of the public to make informed choices about the risks to which they are exposed.

Disclose to the public

Where the public interest requires that the information be disclosed to the general public, the head must ensure that the information is released in a manner designed to reach the public at large.

To an affected group of people

Where the information relates to circumstances that affect only a specific group of people, rather than the public at large, the head must ensure that the information is released in a manner designed to reach the affected group(s).  It does not include the interests of only one individual.

To an applicant

Where an applicant has requested access to the information which the head has decided to disclose under section 25, the information is disclosed to the applicant, as well as to the general public or to affected groups, as required.

"Information"

Example:

• Releasing the location of a pesticide spill contained in a record but not the detailed backup scientific data is acceptable.  If the scientific data is requested, then the other exceptions would be considered.

Interpretation Paragraph 25(1)(a):

A risk of significant harm to the environment or to the health or safety

The head of the public body must make a determination as to whether there is a “risk of significant harm.”

"Risk" means chance or possibility of danger, loss, injury or other adverse consequences [OED].  The assessment of whether a risk exists must be made on a case by case basis and must include a process for assessing risk.  The fact that a risk could exist is not sufficient.  There must be a real risk. Expert advice may be needed to establish whether there is a real risk.

The modifier "significant" ensures that the head makes a determination of the degree of harm that would result.  The determination of what constitutes "significant harm" will be made on a case by case basis.  For example, what would significantly harm a small and vulnerable ecosystem might result in only minor damage to a larger and more robust ecosystem.

"Significant" may be placed on a continuum of harm to assist in determining the level of harm that requires application of paragraph 25(1)(a):

• potential harm

• harm

• significant harm

• grave harm

As with the assessment of risk, the determination of significant harm may require the opinion of an expert.

"Harm to the environment" means damage or detriment to "external conditions affecting the growth of plants and animals" [OED].

"Health"

"Safety"

Examples:

         A risk of significant harm to the environment:

• The accidental release of a pesticide into a stream, which will affect fish and other aquatic life.

A risk of significant harm to the health of the public or a group of people:

• The presence of polio virus in the public drinking water.

A risk of significant harm to the safety of the public or a group of people:

• A natural gas leak which could cause an explosion in a populated area.

Of the public or a group of people

Section 25 applies to information that reveals a risk to the health or safety of either the general public or a specific group of people.

Interpretation Paragraph 25(1)(b):

For any other reason, clearly in the public interest

"For any other reason" means that section 25 applies to any other situation where disclosure of information would be in the public interest.

"Clearly"

"Public interest"

A balancing of the public interest disclosure versus non-disclosure will be part of the case-by-case assessment of public interest.

Interpretation Subsection 25(2)

Despite any other provision of this Act

This phrase provides that subsection 25(1) overrides all other sections of the Act including the exceptions to disclosure.

Interpretation Subsection 25(3)

Before Disclosing

Notice, letter 25-3, must be given to affected third parties and the Commissioner before information is released under section 25.  This notice is for information only.  It is not necessary to wait for input to be received in response to such third party notices before the information is released.  The time limits for response and decision on access which are set out in sections 23 and 24 do not apply to section 25.

If practicable

The obligation to notify third parties and the commissioner must be balanced against the obligation to disclose information without delay.  The head must ensure that there is no delay adversely affecting the public interest.

See the interpretation of "without delay" under
 subsection 25(1) for a list of the factors which should be considered in making this assessment.

Any third party to whom the information relates

"Third party"

Interpretation Subsection 25(4)

Notice of disclosure in the prescribed form

The language to provide the notice for required by this subsection is found in the letter 25-4.  No form for the notice of disclosure has been prescribed in the regulations.

The last known address of the third party

This means the last known address for the third party found in the records of the public body.  There is no requirement that the public body undertake an extensive search in external sources to verify a more current address.

REFERENCES