Exemptions to Disclosure

While LAFOIP starts with the assumption that all records in the possession or control of a board of education (board) must be disclosed, it also provides certain exemptions to disclosure. The board must disclose the record unless it can find a specific exemption listed in LAFOIP. If the board refuses to disclose a record or a portion of a record it must tell the applicant which section of LAFOIP it is relying upon to refuse disclosure.

There are two parts of LAFOIP that set out the exemptions to disclosure:

  • Part III of LAFOIP sets out the exemptions that allow the board to refuse to disclose a record; and
  • Part IV of LAFOIP provides that personal information cannot be disclosed but there are certain specific exceptions to this rule set out in section 28.

Specific Exemptions

Part III exemptions cover a wide variety of records that generally relate to financial or business information of the local authority or a third party.

In each case the school division must be able to cite the specific section of LAFOIP on which it is relying in order to refuse to disclose the record.

Records from Other Governments

Information of third parties government agencies that is obtained in confidence cannot be disclosed, unless the board has the consent of the third party (section 13).

Law Enforcement and Investigations

The board can refuse to disclose a record which could prejudice or interfere with any investigation or any enforcement of an Act or regulation. It can also refuse to disclose information which might reveal investigative techniques, impede the detection of an offence or reveal security arrangements of buildings or computer systems (section 14).

Documents of the Board, Advice from Officials and Economic and Other Interests

The board does not have to disclose draft resolutions. It does, however have to disclose agendas and the substance of board meetings unless one of the following two exceptions applies:

  • notes of closed sessions held by the board pursuant to section 80(2) of The Education Act, 1995; or
  • if another exemption set out in applies to the record (section 15 of LAFOIP).

Sections 16-17 of LAFOIP set out the circumstances in which the board can refuse to give access to a record that could reasonably be expected to disclose:

  • advice, recommendations, analysis or policy options developed by or for the board:
    • this would include background papers, summaries of studies, reports from experts and research unless it is of a scientific or technical nature; and
    • this does not include most environmental testing so such test reports must be disclosed if requested.
  • plans relating to the management of personnel or administration not yet implemented including consultation or deliberations involving employees;
  • positions, plans, procedures, criteria, considerations or instruction for the purpose of contractual or other negotiations;
  • proposed plans, policies or projects if disclosure could result in disclosure of a pending policy or budget decision;
  • trade secrets;
  • financial or commercial, scientific or technical information in which the board has a proprietary interest;
  • information that could prejudice the economic interests of the board;
  • research that could deprive an employee of priority of publication; and
  • information that could result in an undue benefit or loss to a person.

There are also some other particular circumstances in which a school division can refuse give access to specified records:

  • if disclosure of testing or auditing records would reasonably be expected to prejudice the use of results of the particular test (section 19);
  • if the disclosure could threaten the safety or the physical or mental health of the individual (section 20); or
  • if the record is subject to solicitor-client privilege (section 21).

Third Party Information

Section 18 of LAFOIP sets out the circumstances in which a school division can refuse to give access to records containing third party information. This may include:

  • trade secrets of a third party;
  • financial, commercial scientific technical or labour relation information;
  • information that could result in financial loss or gain, or affect the competitive position or negotiation of a third party; and
  • statements of financial account to a third party regarding services provided by the board.

Exercise of Discretion

In the case of the exemptions the board “may” refuse to disclose the record. Therefore, if an exemption applies, the board must exercise its discretion in each case to determine whether or not to rely upon the exemption. To properly exercise discretion the board of education should consider the underlying principles of LAFOIP.

The exercise of discretion was addressed in the Office of the Information and Privacy Commissioner Report F-2004-006.

Personal Information Exemption

Section 28(1) of LAFOIP provides that a board shall not disclose any personal information unless:

  • the consent of the person to whom it relates is obtained; or
  • the local authority is authorized to do so by a specific section of LAFOIP.

Section 28(2) of LAFOIP sets out in detail the circumstances under which personal information may be disclosed without the consent of the individual. Some other exemptions are set out in section 10 of the LAFOIP Regulations. Section 28 does not require the board to disclose the personal information but allows the board to use its discretion to do so.

The specific wording of the exemptions can be found in section 28(2) but they generally provide that personal information may be disclosed:

  • for the purpose for which the information was collected or a purpose consistent with that original purpose;
  • to comply with legislation, court orders and subpoenas;
  • to legal counsel of the board;
  • to enforce the legal rights of the board, including collection of debts;
  • when requested by a law enforcement agency or other investigative body listed in the LAFOIP Regulations, for the purposes of an investigation;
  • pursuant to a written agreement with another government agency for the purpose of administering or enforcing laws;
  • for research purposes as long as certain protections are in place;
  • to protect the mental or physical health of safety of any individual; and
  • in compassionate circumstance to assist contact with relatives of injured or deceased persons.

Section 28(2)(n) of LAFOIP also provides that personal information can also be disclosed without consent when, in the opinion of the head:

  • the public interest in disclosure clearly outweighs the invasion of privacy that could result from the disclosure; or
  • disclosure would clearly benefit the individual to whom the information relates.