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Contract not “legal instrument” under s. 12(3)(a) of FIPPA

On April 15, 2014, the B.C. Supreme Court dismissed a petition for judicial review of an Office of Information and Privacy Commissioner decision in Langley (Township) v De Raddt, 2014 BCSC 650. A freedom of information request was made to the Township pursuant to the Freedom of Information and Protection of Privacy Act (“FIPPA”). The records at issue related to a servicing agreement between the Township and a third party developer, and included a storm water management plan that was appended to the servicing agreement. While the Township disclosed the final version of the servicing agreement, it withheld drafts of the plan on the basis that they were drafts of a “legal instrument” by which the Township acted, and thus were an exception to the FOI request under s. 12(3)(a) of FIPPA. The Adjudicator concluded that the Township was not authorized to withhold the drafts, as they were not a “legal instrument” under s. 12(3)(a) because they did not share the trait of being a legislative enactment or decision, which is common to the other documents listed in s. 12(3)(a), such as “resolution”, “bylaw” and “private Bill”.

On judicial review, the Township argued: there was a lack of clarity around the interpretation of s. 12(3)(a), the issue will continue to arise for municipalities, and since servicing agreements are routinely negotiated between municipalities and developers, being required to disclose these types of records will impede the free discussion necessary to negotiate the final documents. While the Court dismissed the petition on the ground of mootness only, as the drafts had already been released, it held that the petition would have also been dismissed on the interpretation issue. The Court found that it was reasonable for the Adjudicator to conclude that the servicing agreement was a contract, and therefore, was not a “legal instrument” under FIPPA.

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