Civil Litigation

Focus your FOI request for maximum effect: Pearn

By Staff

In part two of a two-part series on freedom of information requests, Fredericton litigator Matthew Pearn discusses the need to be unambiguous when it comes to writing your submission.

The more pointed you can make your freedom of information (FOI) requests, the better, Fredericton litigator Matthew Pearn tells

Pearn, an associate with Foster & Company, says his work on behalf of journalists and plaintiffs has shown him how valuable a focused FOI can be — whether to lay the groundwork for a civil claim or to assist in an investigation by gathering information held by public bodies.

“You have to think creatively about how public organizations work,” Pearn says. “Bureaucracies store information differently from private businesses, and their employees sometimes anticipate these requests for sensitive documents."

He says it can be helpful "to call on a friend or source inside the bureaucracy who can share intelligence on where and how certain documents are stored. While these organizations should know to investigate non-digital records — like handwritten notes and paper files — if you have knowledge about how documents are stored, this can help to ensure you get the materials you're seeking.

“It’s important to remember that the information officers who complete these searches often have other full-time jobs,” Pearn says. “If you’re able to craft a pointed request, as opposed to the scattershot approach, you may get better documents and the response time is often better.”

Plus, "your initial request may lead you to make other helpful requests after reviewing the first materials provided by the public body," he says.

“You can dovetail together searches after you learn the names of people who are most connected to the targeted information, and then focus your next request on those people and the records they have created,” Pearn says.

“If you end up working with someone who takes their responsibility seriously, they will be pleased to try to help you narrow your search because false positives are not good for either of you,” he says.

In New Brunswick, the financial barrier to multiple requests is minimal since there is no charge for information requests made under the province’s Right to Information and Protection of Privacy Act. But Pearn says even in those jurisdictions where a fee is imposed, these charges are "usually small and should not discourage applications for public information."

He says a little investigation can "make a big difference in setting out the allegations that should go into a civil claim, which may help to protect against an early-stage summary judgment motion while you are still developing your claim."

And while lawyers and journalists who are filing these requests may not want to reveal the purpose behind them, Pearn says it's often worthwhile to speak with the information officers working within government departments.

“It’s usually not going to take a rocket scientist to figure out what you’re looking for, and those officers have an obligation to assist you with your search,” he says. “I will often call the officer to confirm they received my request and that the statutory deadline for their response is running. This helps to let people working with smaller public bodies, like villages and towns, know that you understand your rights.”

Pearn says both lawyers and investigative journalists working on freedom of information requests can be constrained by time. Lawyers using them as a tool in the early stages of litigation "may be facing a filing deadline set by limitation of actions legislation and journalists may have deadlines for a story." Both are well advised to get FOI requests filed as early as possible, he says.

“Response times are often slow, and timelines set by limitations legislation are very unforgiving,” Pearn says. “When I identify an organization that is holding documents I may need, I start crafting my access to information request immediately so that I can draft my pleadings. It’s always possible to amend a claim once you have gotten a response to your request, but adding parties at a later date can sometimes be tricky.”

There’s also a risk that some of the requested information will be "improperly" privileged and withheld, says Pearn, adding that he has a different reaction than others when large sections of documents are returned to him with blacked-out redactions, whether they are properly justified by statute or not.

“Many people are frustrated when they see redactions, but often it tells me is that I’m on to something,” he says. “It’s encouraging because I can see there’s something worth hiding and this can help me as I prepare for discovery.”

To read part one, where Pearn discusses how freedom of information requests can be a strategic tool in civil litigation, click here.

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