Guide for Local Public Bodies: Appeals to Court
[Sections 67 to 74]
An applicant whose request for access to a record has been refused and who has received a report from the Ombudsman’s Office may appeal to the Manitoba Court of Queen's Bench. A third party may also appeal a decision of a head of a public body to disclose the third party’s business or personal information, after the Ombudsman has completed his or her report.
If the Ombudsman believes that a case raises a significant issue of statutory interpretation or that an appeal is clearly in the public interest, the Ombudsman may appeal to the Court of Queen’s Bench concerning a denial of access or a release of third-party information, with the consent of the person who has the right of appeal. The Ombudsman’s Office may also intervene as a party to an appeal by a complainant respecting a decision to refuse access or a decision to give access to third-party information in a record.
Generally, an appeal must be filed with the Court of Queen’s Bench within 30 days after the person receives the Ombudsman's report or within 30 days after the person receives a notice from the Ombudsman about the head’s response to the Ombudsman’s report. The Court may allow a longer period of time for filing an appeal in special circumstances.
The head of the public body is named as the respondent to the appeal.
The burden of proof varies according to the type of case. In general, when an appeal relates to a denial of access to information, the head of the public body has the burden of proving to the Court that the applicant has no right of access. In cases involving a request for access to personal information about a third party, the applicant must prove that access to the information would not be an unreasonable invasion of the third party's privacy. When the request relates to third party business information, the third party must prove that an applicant does not have a right of access to the record or part of the record.
The Court may order production of any record in the custody or under the control of the public body for examination. However, it must take every reasonable precaution to avoid disclosure of information that the head of the public body is authorized or required to refuse to disclose and to avoid disclosing whether a record exists if the head is authorized to refuse to confirm or deny that the record exists.
On hearing an appeal, the Court may dismiss the appeal if it determines the head was authorized or required to refuse access to a record. If the Court determines that the head was not authorized or required to refuse access, it may order the head of the public body to give access to some or all of the information. The Court may also make other orders it considers appropriate.
If the Court finds that a record, or part of a record, falls within an exception to disclosure, the Court can not order the head of the public body to give the applicant access to that record or part of it, regardless of whether the exception requires or merely authorizes the head to refuse access. For example, where the record falls within a discretionary exception to disclosure and the head has properly exercised his or her discretion to refuse access, the Court cannot order disclosure of the record.
A decision of the Manitoba Court of Queen’s Bench on appeal under Part 5 of FIPPA is final and binding and there is no appeal from this decision.
There is no appeal to court about the collection, use or disclosure of personal information by a public body under Part 3 of FIPPA.
