Bulletin Number 9: Burden of Proof

Revised September 2004

PDF Version (pdf)

• Introduction
• What does "burden of proof" mean?
• What standard must be met to satisfy the burden of proof?
• Balance of probabilities
• Who has the burden of proof?
• How has the Commissioner ruled on burden of proof?
• Table 1: Commissioner's Rulings on Burden of Proof
• What must be proven?
• What amount and type of evidence is required to meet the burden of proof?
• Submission of evidence by an applicant
• Submission of evidence in private
• Formal rules of evidence
• Oral testimony
• Affidavit evidence

In the Canadian justice system, parties to a dispute can appear before a decision-maker, such as a judge, to request that the decision-maker make a ruling in favour of either party on a matter. Parties present evidence to the decision-maker. Evidence is information or material that establishes facts upon which the decision-maker will base a decision. To be successful, a party will be required to prove certain facts and issues according to a particular standard of proof. Lawyers refer to this requirement as the "burden of proof." This bulletin will discuss burden of proof in the FOIP context, where the decision-maker is the Information and Privacy Commissioner.

The role of the Information and Privacy Commissioner differs in a number of important respects from the role of a judge in the court system. Section 2 of the Freedom of Information and Protection of Privacy (FOIP) Act provides for "independent reviews" of "decisions made by public bodies." The Commissioner’s role is not limited to adjudication.

As an independent reviewer, the Commissioner must consider mandatory exceptions to access regardless of whether the public body has applied those exceptions.

The Commissioner can also raise issues that have not been raised by any of the parties and can request additional evidence. Ultimately, the Commissioner must decide whether the public body correctly applied the Act.

When it is said in this bulletin that a party has the burden of proof, what is meant is that one party has a duty in law to prove to the Commissioner that a particular fact or situation exists.

For example, if a public body applies section 20(1)(a) to refuse access to law enforcement information, it falls to the public body to prove that disclosure could reasonably be expected to harm a law enforcement matter. If the public body is able to convince the Commissioner of this, the public body will have met the "burden of proof."

In law there are different standards that must be met in order to satisfy the burden of proof. These standards are applied in different situations. The one most people are familiar with is the standard of proof "beyond a reasonable doubt." This standard is applied in criminal cases. Civil cases, such as cases involving contractual disputes, have a lesser standard. That standard is proof "on a balance of probabilities" or "on a preponderance of evidence." In hearings before the Commissioner, this lesser standard applies.

Balance of probabilities

What does proving an issue on a "balance of probabilities" or on a "preponderance of evidence" mean? The term "balance of probabilities" is difficult to define, but it is more than a mere possibility. It has been taken to mean that the person deciding a case must find that it is more probable than not that a contested fact exists.

In the FOIP context, a party will have proven its case on a "balance of probabilities" if the Commissioner can say: "I think it more likely, or more probable, than not."

The term "preponderance of evidence" which is also used in the Commissioner’s Orders, means the same thing as "balance of probabilities." If the Commissioner reaches a conclusion on the basis of the "preponderance of evidence," this means that the Commissioner has considered and weighed the evidence presented by both parties and the Commissioner is convinced by the persuasiveness or accuracy of one party’s evidence over the other party’s evidence.

When is a party required to prove a fact or issue on a balance of probabilities? A party to an inquiry before the Commissioner is required to prove its case on a balance of probabilities only when it has the burden of proof.

For example, if an applicant who has been refused access to personal information of a third party, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s personal privacy. To satisfy this burden, the applicant must provide sufficient evidence to convince the Commissioner that it is more probable than not that disclosure of the personal information would not be an unreasonable invasion of privacy. If an applicant is able to do that, the case will have been proven on a "balance of probabilities."

The starting point for answering this question is section 71 of the Act. That section establishes which party has the burden of proof in several situations.

1. When a public body has refused to disclose all or part of a record in response to an access request

When a public body refuses to disclose information to an applicant, section 71(1) of the Act places the burden of proving that the information should not be disclosed on the public body.

2. When a public body has refused to disclose a third party’s personal information in response to an access request

When a public body refuses to disclose a third party’s personal information, section 71(2) of the Act requires the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s personal privacy.

Because of section 71(2), the burden of proof under section 17 (personal privacy) is twofold. If a public body withholds information under section 17, it is required by section 71(1) to prove that section 17 does, in fact, apply to the personal information that it is refusing to disclose. Section 71(2) then requires the applicant to prove that the disclosure would not be an unreasonable invasion of the third party’s personal privacy.

A public body has a duty to inform applicants of all of the grounds on which it is refusing access. This is particularly important when the public body is denying access on the basis that disclosure would be an unreasonable invasion of a third party’s privacy under section 17. Since the applicant will bear the burden of proving that disclosure of third party personal information would not be an unreasonable invasion of privacy, the applicant needs to be fully informed of the grounds upon which the public body is refusing to disclose the personal information (IPC Order F2003-025).

The burden of proof under section 71(2) is not "triggered" unless section 17 becomes an issue at inquiry. This can occur if a public body has relied on section 17 to refuse access to records or if, in the course of the review process, the Commissioner raises the issue of applying section 17 (IPC Order F2004-003).

An applicant may meet the burden by showing that one of the circumstances listed in section 17(2) of the Act applies. Section 17(2) lists circumstances when the disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy (IPC Order F2003-016).

In some cases it is difficult for the applicant to prove that the disclosure of information would not be an unreasonable invasion of privacy when he or she does not know the exact nature of the personal information contained in the records. For this reason, and because of the Commissioner’s role as an independent reviewer, the Commissioner will still review the application of the FOIP Act by the public body. If the Commissioner finds that the public body did not correctly apply the Act, the applicant will not have to prove that it is not an unreasonable invasion of a third party’s personal privacy to disclose the records (IPC Order 98-004).

In any case, the public body should always be prepared to defend its decision not to disclose the information despite the requirements of section 71(2) of the Act.

3. When a public body decides to disclose a third party’s information in response to an access request

When a public body decides to disclose information about a third party, the third party can ask the Commissioner to review that decision. If the information is personal information, section 71(3)(a) of the Act requires the applicant to prove that the disclosure would not be an unreasonable invasion of the third party’s personal privacy. If the information is not personal information, section 71(3)(b) of the Act requires the third party to prove that the applicant has no right of access to it.

4. Other situations

Section 71 does not specifically establish who has the burden of proof in every situation. For example, the Act does not specifically address disclosure of personal information in contravention of Part 2 of the Act or on matters relating to the assessment of fees.

In situations such as this, the Commissioner will determine where the burden lies. When making that determination, the Commissioner has considered the following criteria:

(a) who raised the issue, and
(b) who is in the best position to meet the burden of proof.

Normally, if a party raises an issue, and it is in the best position to meet the burden of proof, that party will bear the burden.

Section 71 does not establish who has the burden of proof when an individual claims that a public body disclosed the individual’s personal information in contravention of the privacy provisions of the Act.

For example, in IPC Order 97-004 the applicant alleged that a public body had disclosed the applicant’s personal information in contravention of the privacy provisions of the Act. Since only the applicant knew the reasons for the applicant's concern, the Commissioner determined that the applicant was in the best position to meet the burden of proof. Since the applicant had raised the issue, and was also in the best position to meet the burden of proof, the Commissioner ruled that the applicant should bear the burden of proof in that case.

In IPC Order F2003-017, which concerned both an access request and a breach of privacy complaint, the Adjudicator affirmed the rationale in IPC Order 97-004. Since the applicant raised the issue, he had the initial burden to establish that his personal information was disclosed as he alleged. The Adjudicator said that, if disclosure of personal information is proven, then the burden shifts to the public body to justify the disclosure under the Act.

In IPC Order 99-014, the Commissioner decided that the public body had the burden of proof in a review of a fee estimate. He reasoned that, although the applicant had raised the issue, only the public body knew the processes and standards that it used to calculate the fees.

In cases involving fees, the Commissioner has ruled that the applicant has the burden of proof when the applicant has requested a review of a public body’s decision not to excuse fees. In IPC Order 96-002, the Commissioner considered this issue and reasoned that the applicant was in the best position to put forward the grounds upon which he was seeking to be excused from payment of fees.

In IPC Order F2001–023 the Commissioner considered a request for a waiver of fees based on a claim that the records related to matter of public interest (section 93(4)(b)).

The Commissioner found that, while the burden of proving public interest in a requested record lies with the applicant, the the burden was not exclusively upon the applicant. The public body was also required to form an opinion as to whether the records related to a public interest considering all facts and circumstances, not simply the evidence presented by the applicant. This evidence was required to discharge the burden of proof upon a public body that it exercised its discretion appropriately under that section in denying a fee waiver. (See also IPC Order F2003-011.)

The Commissioner has applied the two criteria to determine who has the burden of proof in several situations not covered by section 71 of the Act. Table 1 on the next page summarizes how the Commissioner has ruled in those situations.

It should be noted that the Commissioner is not bound by his previous decisions and that he will decide each case on the basis of the specific circumstances of that case. Although this table sets out some examples of how the Commissioner has ruled on the issue of burden of proof, it does not guarantee that he will rule the same way in the future.

Table 1: Commissioner's Rulings on Burden of Proof

The Commissioner has provided a considerable amount of guidance on interpreting the FOIP Act in his Orders and Investigation Reports. He has considered the meaning of certain words and phrases in the legislation and he has established certain tests and criteria that must be met before certain provisions of the Act can be applied. These tests and criteria, if applicable, need to be taken into consideration when a party is deciding how best to discharge the burden of proof.

An example is the "harms test." Many of the provisions in Part 1 of the Act require a party to establish that harm can reasonably be expected to occur if information is disclosed.

In order to establish that harm could reasonably be expected to result from a disclosure of information, the Commissioner requires the party to satisfy the harms test (IPC Order 96-003). That test requires the party to show that:

(a) there is a clear cause-and-effect relationship between the disclosure and the alleged harm;

(b) the harm caused by the disclosure amounts to "damage" or "detriment" not simply hindrance or minimal interference; and

(c) the likelihood of harm is genuine and conceivable, and not merely speculative.

See IPC Practice Note 1: Applying Harms Tests.

Different tests and criteria have been established for many of the provisions in the Act. See FOIP Guidelines and Practices, published by Access, Privacy and Security, Service Alberta, or the Annotated Alberta FOIP Act, available from the Queen’s Printer, for further information on the interpretation and application of specific provisions of the Act.

If a party is relying on a particular provision of the Act, it must provide sufficient evidence to satisfy the Commissioner that the test has been satisfied or the criteria have been met.

It cannot be said with any certainty what amount or type of evidence will be required in order for a party to meet its burden of proof. The Commissioner will consider the specific circumstances of the case when determining the sufficiency of the evidence.

The Commissioner may also raise issues that have not been raised by one or other of the parties and invite submissions on those issues in the course of an inquiry. Since it is the role of the Commissioner to provide independent reviews of decisions made by public bodies under the Act (section 2(e) and section 65(1)), the Commissioner may need to consider additional evidence in some cases.

The nature of the evidence presented at an inquiry will depend on whether the inquiry is conducted orally or in writing. The form of the inquiry is decided by the Commissioner (under section 69(4) of the Act).

In a written inquiry, the evidence required to meet the burden of proof will be submitted in writing. The Office of the Information and Privacy Commissioner has provided some guidelines on the format of submissions in IPC Practice Note 5: Preparing Records and Submissions for Inquiries.

In an oral inquiry, the Commissioner will hear oral argument and testimony, as well as receive written submissions.

Since the Commissioner is often faced with weighing conflicting evidence, it is important that each party ensures they present evidence required to meet the burden of proof in the most complete, factual and credible way possible.

At any inquiry, the Commissioner is the person who must make findings of fact on the basis of the evidence, whether this is given by oral testimony or by written submissions. The Commissioner also considers arguments presented by the parties, that is, the interpretation of the law in relation to the facts presented.

The Commissioner will decide what evidence to rely on and how much weight to give that evidence. In making that decision, the Commissioner will consider whether the appropriate person has given the evidence and will examine the logic and consistency of what is stated in it, as well as any issues of credibility (IPC Order 97-011).

The Commissioner will normally give sworn oral and affidavit evidence much more weight than evidence not given under oath (IPC Order 97-016).

The Commissioner has provided guidance in various Orders on the sufficiency and quality of evidence required to appropriately discharge the burden of proof. For example, in IPC Order F2000-031, the Commissioner found that an applicant asserting that records should be disclosed in the public interest under section 32(1)(b) did not meet the burden since the applicant failed to provide reference to Orders, empirical or concrete data or non-speculative and supportive evidence to sustain his arguments.

In IPC Order F2003-017, the Adjudicator stated that the applicant, who claimed that the public body had breached his privacy, failed to provide specific and clear evidence to support his allegations. The Adjudicator compared this to the evidence of the public body, which he preferred because it was candid, specific and provided in the form of affidavits from individuals with personal knowledge of the disclosures.

Submission of evidence by an applicant

In any review arising from a denial of a request for access to records made under the Act, it is the public body that must answer to the Commissioner by saying why it refused to disclose the records. The applicant is not required to submit evidence in an inquiry, because the Commissioner can make a decision as to whether the public body correctly applied the Act without the applicant’s involvement in the inquiry, with no prejudice to any of the other parties.

However, an applicant may need to submit oral or documentary evidence to the Commissioner to meet the burden of proof. This would be the case when, for example, personal information of a third party is involved. In that situation, it would be up to the applicant to prove why disclosure of the information would not be an unreasonable invasion of the third party’s personal privacy.

Other situations where an applicant might need to submit evidence may arise when an applicant claims that a party has waived legal privilege, that information should be disclosed in the public interest, or that the applicant is unable to pay a fee.

Submission of evidence in private

In certain cases, a party to an inquiry may find that, in order to meet its burden of proof, it needs to present evidence of a sensitive or confidential nature to the Commissioner in private. These submissions are called in camera submissions and can take place in both written and oral inquiries. In camera submissions may be permitted in cases where disclosure of one party’s evidence to all the parties to the inquiry could result in disclosure of the information at issue, which would defeat the purpose of the inquiry.

The Act provides for some of these situations in section 59(3), which states that, in conducting an inquiry, the Commissioner must not disclose any information that a public body would be required or authorized to refuse to disclose to an applicant.

The Act also contains a more general confidentiality provisions. Section 66(3) states that no one is entitled to be present during, to have access to, or to comment on, representations to the Commissioner by another person. A party to an inquiry may request permission to make a submission to the Commissioner in private. The Commissioner has indicated that, in making his decision, he will consider the principles of procedural fairness as well as the importance of promoting full and open representations (IPC Order 98-006). For further information, see IPC Practice Note 8: In Camera Written Submissions for Inquiries.

The Commissioner has broad discretion to decide procedural matters relating to all inquiries.

Formal rules of evidence

When a party appears in a court before a judge, there are very formal rules about what kinds of evidence can be produced and how the evidence is to be produced. However, not all tribunals are governed by the strict rules of evidence that apply in the court system. In IPC Order 97-016 the Commissioner affirmed that he is not bound by the formal rules of evidence, and it has been the Commissioner’s practice not to restrict the amount and type of evidence that a party may submit.

Parties to an inquiry are not generally required to submit originals of the records that are the subject of an inquiry. This is not only because public bodies require their records for ongoing business purposes, but also because inquiries are frequently concerned with the way in which a public body has severed records for disclosure, which is best demonstrated by marked-up copies. The Commissioner expects complete, accurate copies and will normally require submission of original documents only in exceptional cases. This general rule does not apply to affidavits, for which originals should be submitted.

Although he is not bound by the formal rules of evidence, the Commissioner will still expect parties to provide information based on first-hand knowledge, as opposed to information they have gathered from other sources.

Oral testimony

In an oral inquiry, the Commissioner may hear the oral testimony of witnesses given under oath. Parties to an inquiry should be prepared to have persons present at the inquiry to speak to the Commissioner about their personal knowledge of the case, excluding information they have gathered from other sources.

A person giving oral testimony under oath will need to swear or affirm before the Commissioner that the evidence he or she is giving is the truth. There are serious legal consequences for a person who gives false testimony under oath.

Affidavit evidence

An affidavit is a voluntary declaration of facts written down and sworn or affirmed to be true by a party who has personal knowledge of the records or matters at issue in an inquiry. An affidavit must be sworn before a Commissioner for Oaths or a Notary Public. There are serious legal consequences for a person who swears a false affidavit.

Affidavits are used in written inquiries where there is no hearing. Affidavits may also be used in support of oral testimony at a hearing. If an affidavit is submitted as evidence in an oral inquiry, the person who has sworn the affidavit should be prepared to attend the inquiry to be questioned by the Commissioner, or the other parties, on the information contained in the affidavit.

A party is almost always free to decide whether or not it wishes to submit affidavit evidence – with one notable exception. If the Commissioner orders production of a record under section 56 of the Act, and a party claims that it cannot produce the record because to do so would be an offence under an Act of Canada (e.g. the Young Offenders Act, recently superseded by the Youth Criminal Justice Act), the Commissioner will require the party to produce an affidavit to that effect (IPC Order 96-015).

In certain situations the Commissioner may accept a statutory declaration rather than an affidavit (IPC Order 99-021). However, the Commissioner appears to prefer that parties to an inquiry provide affidavits (IPC Orders 99-023, 99-027, 99-033).

Purpose

FOIP Bulletins are intended to provide FOIP Coordinators with more detailed information for interpreting the Freedom of Information and Protection of Privacy Act. They supply information concerning procedures and practices to aid in the effective and consistent implementation of the FOIP Act across public bodies. FOIP Bulletins are not a substitute for legal advice.

Government of Alberta
Access, Privacy and Security
Service Alberta
3rd Floor, 10155 - 102 Street
Edmonton, Alberta T5J 4L4
Phone: (780) 427-5848
Fax: (780) 427-1120
Web site: http://foip.gov.ab.ca