Order PO-3972 – Public institutions are not immune to accountability and transparency

Despite the existence of access and privacy laws for the last three decades, some public institutions still occasionally lose sight of their purpose, which is to promote transparent and accountable government.

A recent order by my office illustrates the high bar the law sets to justify denying an individual’s right to information. In this situation, a request was made to the Ministry of Health for access to an educational video, and its associated transcripts, on vaccines and immunization. The video is required viewing for parents seeking an exemption for reasons of conscience or religious belief under the Immunization of School Pupils Act, a law which prohibits children who have not been immunized from attending school.

The ministry denied access to the video and transcripts, asserting that their disclosure could seriously threaten the health of individuals. They claimed that if the requester freely distributed the video and transcripts or posted them online, anti-vaccination activists could alter them to cast a negative light on vaccines. As a consequence, parents would be encouraged to seek vaccination exemptions and the more people that sought exemptions, the greater the risk to the public’s health and safety.

Dropping vaccine rates among school-aged children is a serious public health issue. Without immunizations, children can become ill from easily preventable diseases or spread such diseases to other vulnerable individuals. However, this order is about the public’s right to access information, and to deny access, the ministry had to prove that the risks inherent in disclosure were more than merely speculative.

In examining the ministry’s position, our office found that it failed to provide any reliable evidence that there was a reasonable level of risk, beyond a mere possibility, that disclosure of the video could result in a serious risk to health and safety. While it is certainly possible that an altered copy of the video may be posted and viewed by some parents, any risk to health and safety as a result is speculative. Furthermore, sharing a copy of the video would not change the contents of the original. If a copy were altered to criticize vaccines, parents who seek to exempt their children from vaccination on conscience or religious grounds would still be required to attend an education session where they would see the original video and discuss it with a public health official. Consequently, there is no reasonable risk to public health and safety. Our adjudicator ordered the ministry to disclose the records.

Exemptions found in access-to-information laws must be interpreted narrowly and within the context of the legislation’s overall purpose. In his order, the adjudicator reminds all public sector organizations of the primary purpose of this law — to facilitate democracy by ensuring that citizens have the information required to participate meaningfully in the democratic process and to hold their governments accountable.

Read the full order: PO-3972