Redress Risk Management (post until May 31/19)
Civil Litigation

FOI requests useful in early stages of litigation

In this first instalment of a two-part series on freedom of information requests, Fredericton litigator Matthew Pearn discusses how they can be a strategic tool in civil litigation.

Freedom of information legislation is an underrated tool for lawyers scouting possible civil claims against public bodies, Fredericton litigator Matthew Pearn tells AdvocateDaily.com.

Pearn, an associate with Foster & Company, says his work with the Canadian Media Lawyers Association has shown him how willing journalists are to take advantage of their right to information held by government departments and agencies. However, he says lawyers should also make more use of legislation governing the area in various jurisdictions.

“Right to information requests are a really good strategic tool when you’re investigating a claim and not sure whether it’s strong enough to proceed with a civil action,” he says. “Before you launch a claim, you may want to find out what material is held.”

While some jurisdictions impose a token fee, others provide the service free of charge, including New Brunswick where the province’s Right to Information and Protection of Privacy Act governs requests from the public.

“If you learn anything at all, it may be worth your trouble,” Pearn says. “You can gather a lot of valuable information about a claim without having to proceed through to the disclosure process by way of civil discovery.”

Still, he advises counsel to make their applications as early as possible in the process. Although legislation typically requires documentation to be produced within 30 to 60 days, Pearn says that in practice, the timelines are rarely enforced. Deadlines are often extended without notice to the requesting party and may even be reset internally if there are issues over the size or complexity of the production, he says.

“Instead of 30 to 60 days, I always anticipate it will be more like 90 to 120 days. If you’re close to a limitation period’s expiry, you can’t rely on them honouring the exact timelines in the law.” 

According to Pearn, access-to-information requests can be particularly useful when a potential claim involves allegations of negligence by a municipality, or if the plaintiff was employed by a public body subject to legislation.   

“There are limits on what you can obtain because private enterprises or individuals may have a privacy interest in the documents held,” he says.

After submitting a request, Pearn says he doesn’t shy away from following up with the information officer assigned to it.

“They tend to be willing to help, and if you can explain what you’re looking for and give some guidance, it can help them focus their efforts on a particular kind of documentation or time frame,” he says. “That could turn a two-week process into a two-day one.

“I don’t always spell out the purpose of the request, but I do explain who is requesting the information and what I think they’re entitled to, so we can anticipate any issues,” Pearn adds.  

He says information officers are generally interested in making disclosure as fulsome as possible since they take on an ombudsman-style role within the public organization. In addition, Pearn says penalties and fines built into the legislation give added incentive to co-operate. 

“There is a risk to them if they try to bury information,” he says.

Stay tuned for part two, where Pearn discusses the need to be unambiguous when it comes to writing your submission.

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