Executive Summary: Key Legal and Evidentiary Issues

• The court dismissed a request under LAFOIP to compel the SHA to release or create COVID-19 testing “records of accuracy.”

• SHA was entitled to withhold technical and security-related information under statutory exemptions for system security and proprietary data.

• The applicant’s affidavit and supporting documents were partially struck for including irrelevant, argumentative, or speculative content.

• SHA demonstrated it conducted a reasonable search and was not obligated to generate new records from raw data.

• Expert evidence filed by the applicant was inadmissible due to insufficient relevance and qualifications.

• The applicant was ordered to pay $1,500 in costs to SHA after multiple procedural motions failed.

Facts and procedural background

Randolph Dean Schiller filed an originating application against the Saskatchewan Health Authority (SHA) under The Local Authority Freedom of Information and Protection of Privacy Act (LAFOIP). He sought a wide range of records related to COVID-19 testing accuracy, including PCR and genome sequencing data, policy documents, and primer sequences. He also asked the court to compel SHA to create a new document by extrapolating existing data to form a public-facing “record of accuracy.”

SHA had already responded to the original LAFOIP request by providing over 1,200 pages of records but withheld certain information under statutory exemptions. The withheld data included usernames, passwords, file path addresses, and other IT infrastructure details. SHA also explained that the “records of accuracy” sought did not exist in the form requested and that creating such a document would require significant time and resources. The applicant disagreed and escalated the matter to court following a partial review by the Saskatchewan Information and Privacy Commissioner (OIPC).

Applications to strike and evidentiary rulings

Before addressing the access issues, the court first ruled on multiple procedural applications brought by both parties to strike evidence. The SHA succeeded in having several sections of Mr. Schiller’s affidavit struck for being opinion-based, argumentative, irrelevant, or redundant. Some exhibits were also removed, including an expert report from a veterinarian whose expertise was deemed not relevant to human public health testing protocols.

Conversely, Mr. Schiller sought to strike part of an affidavit filed by Dr. Jessica Minion, SHA’s Provincial Clinical Lead for Public Health. The court rejected this, finding Dr. Minion had the necessary expertise and personal knowledge to explain the burdens involved in summarizing raw laboratory data.

Legal analysis of access to information requests

The court confirmed that the proceeding was a de novo hearing under LAFOIP, meaning the judge was not bound by the OIPC’s recommendations and reviewed the evidence afresh. It considered whether SHA had met its statutory obligations under LAFOIP, including the right of access and the duty to assist.

The court ruled that SHA had lawfully withheld certain information under sections 14(1)(m) and 17(1)(b) of LAFOIP. These provisions allow local authorities to refuse access to records that could reveal the security arrangements of systems or contain proprietary technical information with monetary value. The court found the redacted data fell squarely within those exemptions and noted that revealing such information could lead to cybersecurity risks.

It also found that SHA conducted a reasonable search and was not obligated to create a new document from raw data. Although some raw data might exist, the court emphasized that LAFOIP does not require a public body to generate a new record if one does not already exist. SHA had offered to provide some validation data if properly requested but explained that extracting and interpreting the information would involve substantial work, interfering with its operations.

Costs and conclusion

Given the broad and ultimately unsuccessful nature of the applicant’s requests and procedural motions, the court awarded costs to SHA. Mr. Schiller was ordered to pay $1,000 in general costs and an additional $500 related to the successful application to strike his affidavit material.

The court dismissed the application in full, finding that the SHA complied with its legal obligations and that the records requested either did not exist or were properly exempted from disclosure.