7(1)(d)(iii)

How the Public Access Counselor has treated 7(1)(d)(iii)

Section 7(1)(d)(iii) exempts records whose disclosure would create a substantial likelihood that a person would be deprived of a fair trial or an impartial hearing. Public bodies have cited it for police investigative files, interview records, surveillance video, police report narratives, and correspondence said to relate to enforcement or administrative proceedings.

In these decisions, the PAC applied the exemption narrowly and required specific proof linking disclosure to harm to trial or hearing fairness. It found violations where agencies withheld records in their entirety on conclusory claims, including interview records, surveillance video, and investigative files. It rejected use of the exemption for a harassment-related letter that was not part of an enforcement proceeding. Where the PAC reviewed unredacted police reports, it upheld most narrative redactions but ordered release of a business phone number and hospital name.

At a glance: 7 documents(0 binding opinions, 7 determination letters). Most often cited alongside: 7(1)(d)(i) (Would interfere with pending/contemplated law-enforcement proceedings) (3); 7(1)(d)(iv) (Would disclose a confidential source or informant) (3); 7(1)(b) (Private information) (2); 7(1)(c) (Personal privacy) (2); 7(1)(d)(ii) (Would interfere with active administrative enforcement proceedings) (2).

Recurring issues

• Public bodies withheld entire investigative files or interview records on a general claim of harm to a fair trial without demonstrating the required likelihood of harm. (An investigation of police officers, Police interview records of a private citizen, Surveillance video footage of a shooting incident)
• Agencies cited the administrative enforcement exemptions for correspondence about workplace harassment allegations that was not shown to be part of such a proceeding. (A letter about workplace harassment allegations)
• Police departments redacted narrative sections of police reports by citing section 7(1)(d)(iii) together with other law enforcement and privacy exemptions. (Police reports and complaints about an individual)
• Public bodies cited sections 7(1)(d)(i) and 7(1)(d)(iii) together to withhold surveillance video or interview records of specific incidents without meeting the burden of proof. (Police interview records of a private citizen, Surveillance video footage of a shooting incident)

Practical points

• A public body relying on section 7(1)(d)(iii) should explain with specific facts how disclosure would create a substantial likelihood of an unfair trial or hearing.
• A public body should review responsive records individually and release reasonably segregable portions rather than withholding entire files or reports.
• A public body should not use enforcement-related exemptions for a letter or record that is not shown to be part of an administrative enforcement proceeding.

Summary drafted from the linked decisions and checked against them; read the decisions themselves before relying on it. Not legal advice.