QUEENS BENCH FOR SASKATCHEWAN
Caton: 2021 SKQB 40
Dae: aoa on os
Docket one 23s or20lo
Judicial Cone: ——— Regina
BETWEEN:
Dit. EMILY EATON
APPLICANT
RESPONDENT
«and —
THE UNIVERSITY OF REGINA
RESPONDENT
APPLICANT
Counsel:
Daniel S. LeBlanc for the applicant, Dr. Emily Eaton
Erin M.S. Kleisinger, .C.... fo the respondent, The University of Regina
JUDGMENT MeCREARY J
FEBRUARY 8, 2021
A. overview
(1 Are members of the public entitled to know who funds research
conducted at a public university, and what unit n the university receives that funding?
‘That isthe central question in this case
rl Dr. Emily Eaton is an associate professor in the Department of
Geography and Environmental Studies at the University of Regina [University J. I ate
2017, she submited an access t information request tothe University pursuant to s. 6
of The Local Authority Freedom of Information and Protection of Privacy Act, S$


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1990:91, c127.1 [LAFOIPL She asked for nformation respecting fossil ful research
being conducted at the University between 2006 and 2017. Her request was for

Al exermal reseach funding (both private and bli) to the

Univesity of Reina nclating bt notte t rants and contacts

1 would like the doli amount o the finding. the funding

anerefeompany avardng the money th tile othe roswach projec,

and the unit (oealty or department o schoo that rceved the

funding. A sprendshct wouldbe sufien fort
B1 After receiving Dr. Eaton‘s initial request, the University‘s Research
Office communicated with Dr. Eaton on several occasions in order to narrow her
request. Dr. Eaton ultimately agreed to limit her request to research projects related to
petrolcum. ‘This generated 250 research files that were potentially relevant. The
Universiy‘s Research Office then produced a summary spreadsheet of these files
containing categories of information about the research project, including, but not
limited to, the project tile, the department and ficulty doing the esearch, and certain
funding information [Database Query Spreadsheet}
@ In carly 2018, the University advised Dr. Eaton, in response to her
request, that it would only disclose te ite of the research project and the amount of
funding being received with respect to the research project. This disclosure is required
by s. 176) of L4FOIP. The University took the postion thatthe identity of the finder
of the academic research, and the department or unit o the University receiving that
funding [Funding Identity Information], were "details of academic research", and not
subject to disclosure pursuant tos. 17G) ofLAFOIP.
) Sections 170) and (4) of LAROTP provide:

170) The head of th Univesity of istatchenan, the Univesity of

Resin oa ility designed asa hospital or ben contre prsoat

to The Provincial Heath Aubri det may rue to dislow deuils

of the meademic research being conducted by an employee of the


a —
unienit, hospital o heath cente, as th case may b, inthe couse
ofthe employes‘semploymen
(0 Nowititonting subsection G) where posbls, the head of the
Univesity of Sslachenan, he Univesity of Resin or a aciiy
designated as a hosptal or a hell ccure puratto The Provinclal
Heath duboriy de sall disclose
() th il of and
(0) the amount of unting bing received wit respect o the
acadenic reserch nenioned in subsction )
61 On March 1, 2018, Dr. Eaton applied to the Offce of the Saskatchewan
Information and Privacy Commissioner [Commissioner] for a review of her request
pursuant to. 38(1) of LAFOIP. The Commissioner issued Review Report 038—2018 on
November 28, 2018 recommending that the University: (1) regard the Database Query
Spreadshest asthe record responsive to Dr. aton‘s request (2) release to Dr. Eaton the
project tite, funding amount, funding agency, and unit receiving the funding; (3)
comply with s. 1764) of L4FOHP; and, (4) rescind its fee estimate for providing this
information
im ‘The University considered the Commissioner‘s report and provided Dr.
Eaton with its decision on December 24, 2018. It largely declined to follow the
Commission‘s recommendations, but reiterated that it would disclose the tite of
relevant research projects and the amount of funding received for those projects In
addition, the University agreed to disclose Funding Identity Information if that
information had already been made public. However, this did not satisy Dr. Eaton‘s
request as she also wants the Funding Identity Information that has not been made
publicly available
i) As a result, Dr. Eaton appeals the Univerity‘s decison to this Court The
fos estimate is not at issue at this appeal


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i91 In Eaton v The University of Regina, 2019 SKQB 127, 1 gave a
preliminary decision respecting how this appeal would proceed. ordering that the mater
would proceed in open court, with the University filing a seated copy of the Database
Query Spreadshest for my review, if I deemed such a review necessary. In my
preliminary decision, 1 found (at para. 23) thatit was not necessary fo the University
to disclose the Funding Identity Information to argue effectively that this information
constitutes ‘details" o academic research.
101 The issues arising from Dr. Eaton‘s appeal are:
1... Whatis the standard of review and who bears the onus?
2. Does Funding Identity Information constitute "details ofacademic
research" so as to exempt it from disclosure pursuant tos. 170) of
Liroum
3. if yes, has the University reasonably exercised its discretion in
refusing to disclose Funding Identty Information pursuant to
s Ing)orLiroim
(m For th reasons that follow, 1 find that Funding Identity Information —the
identity ofan agency providing funding for research and the identity of the University
department or unit receiving that funding — does not constitute "details of academic
research" pursuant to s. 17G) of L4FOIP. As such, the Universit is not ented to
refuse to disclose the Funding Identity Information under this class of exemption.
1121 Itis possible, however, that some Funding Identity Information sought by
Ibr. Eaton is protected from disclosure by other specific exemptions under LAFOIP
"The University is ented to undertake a case—by—case review to determine what, i any,


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other exemptions apply to Funding Identity Information for specifi research projects
relevant to Dr. Eaton‘s request. As a result 1 will not order that the Database Query
Spreadsheet be disclosed at this time.
n. anatysis

1. Appeal is a Hearing De Nov; University Bears the Onus
(8) Dr. Eaton‘s appeal before this Cour is a hearing de now: L4FOIP,
s. 47(1) As a result, I am not required to give any deference to the Commissioner‘s
recommendations respecting Dr. Eaton‘s request, nor t the Universit‘s decision to
deny portions of her request: Consumers‘ Co—eperative Refineries Limited v Regina
(Cin), 2016 SKQB 335 at paras 11—13, 6 CBLR (49) 70; Brito v Universiy of
Sustatchewan, 2017 SKQB 259 at paras 19—21, 13 CPC (8) 187; Gordon v Regina
Ou Appelle Regional Health Authority, 2017 SKQB 291 at par 43.
ta Because LAFOIP contains a presumption that the records requested by
Lor. Eaton should be disclosed t her, the University bears the onus of establishing that
these records need not be disclosed: ss. .1 and S1 of LAROIP: Brito v University of
Sustatchewan, 2018 SKQB 92 at para 24 [Brito 2}; University of Sastatchewan v
Sustatchewan (nformation and Privacy Commissioner) 2018 SKCA 34 t para 10.
us) Finally, a public body is not entitled to deny an applicant access to the
entity of a record simply because it contains some information which is properly
withheld. Rather, a public body is required to undertake a case—by—case analysis of ach
record to determine whether the record could be produced if portions ofthe record were
redacted or severed:s. bof LAFOIP; H.J Hein: Co. of Canada Lad. v Canada (Attorney
General), 2006 SCC 13 at pars 43, (2006] 1 SCR 441 [Meine]. The "severmbilty"
principle applies to both individual records and to classes of records: Brito 2 at para


6—

29 and Merck Frosst Canada Lid. v Canada (Health, 2012 SCC 3 at para 236, [2012]
1 soras.

2. Funding Identity Information Does Not Constitute Details of Academic

Research
uis) 1 find that Funding Identty Information does not constitute "details of
academic research" pursuant to s. 17) of LAFOIP. This is because: (a) the broad
purpose of LAFOIP is t promote openness, transparency and accountability in public
institutions such as the University; (b) the purpose of‘. 17(3) is to protect academic
freedom and foster competitiveness, but the exemption provided by . 17) of LAFOIP
mus be interpreted in a limited and specific way: () the ordinary meaning of details"
suggests there should bea specific and pointed connection bt ween the record requested
and the academic research, such that disclosure of the requested record would disclose,
directly or indirectly, the particulars o a research project (4) other provisions exist in
LAFOIP to address specific harm that may be caused by disclosure of the Funding
Identity Information, including, but not limited, to harm to economic interest and
competitive position; and, (e) there is no evidence that disclosing the Funding Identity
Information threatens academic freedom
(@) The Purpose: of LAFOIP is to Promote Openness,
Transparency and Accountability

( In determining whether s. 17G) of LAFOIP applies to Funding Identity
Information, 1 have used the modern approach to statutory interpretation. This means
that 1 have read the words of the Iegisttion in context, giving them their ordinary
meaning, and with the understanding thats. 17) was intended to have a meaning that
is harmonious with LAROIP‘s scheme and purpose: Rizzo & Rizo Shoes Lid. [1998]
1 SCR 27 at para 21; Heine at para 21; Brito 2 at para 26.


«3%
(18) The principles underlying the modem approach to interpretation are
summarized in Ballantyne v Saskatchewan Government Insurance, 2015 SKCA 38 at
pares 19 and 20, 457 Sask R 254:
119] The leading case with respect to sity inorprctaton isthe
Supreme Court of Canadas decison in Re Rezo & Rezo Sizes Li,
(1998) 1 SCR 27 (zo Shoes. A nuriber of piniples setout in hut
case ar applicable o the cas at had, rancly
1, The words ofan At ar o be read n thi context and in
thcir granimateal and ortinay sense harmoniously wit the
whone of the Act is object, and the imerin of the
leisatire (See. Mezo Sho ‘at par 47), (See alos
Sustacheran Goverment hnurance v Sper 200 SKCA 73
at pan 20, 331 Sisk R 280; and dct Aural Avcilty
of Brtamia No 502,2012 SKC 127 at ons 16—17, 2013)
AWWYRZR Leon)
2. The lexisaie does mot intend to, prodice absurd
consequences. An nerection can be considered absu if
it fads to rideulous or fivelous comequences f itis
extremely unreasonable or incqutable, if iis ifogcal or
incoherent o iit i incompatle wit ther provisions or
wil th object of the eyinatve enactment (Se: Rz0 Shoe
apon. 27)
3, Any stie chancteid as confering beveis must be
inert na brut and geerous manner (Se: Rezo Shos
at por 21. Ths pincile is enshrined in , 10 of The
Inerprtaton de, 1995, 55 1995, c. e112 (Sw dein at
porns 1610,
4. Any dou rising From diffentes of language should be
resolve in fivou of the claimant (Se: Rezo Shoe at arn
10
120] In Sliven on the Constuction of Sates, h ed (Markhan:
Lexstexs 2014) at 282, th Sulivan sets out threx propositions
tat apply when ineprting the plain meming of a stun
provision:
1 I ispresuned atthe ortinay meaning ofa leisatve et
isthe meaning intended by the episatie Inthe absence ofa
reason to eis t the ordinay meaning prvails


8
2, Even ithe ortinay meaning is lain, cours mis ake ino
account the ful range o elsant context conidentions
including purpose, related proviion in thesame and oter
Acts, leaishtve dating comvetions, presumptions of
Ieisative int, absritis to e avoided and th ke
3, in li of thse comidentions, the cout may adopt an
imerpetation that modifies or depans fron the ortiny
imcanng. provided th inerprtaron adopted i plausibl and
the reasons for adopting it are sufiiew to justly the
departee rom ordinary meaning
tro1 The object and purpose of access to information legishtion such as
LAFOIP is to promote openness and transparency in public institutions, thercby
enhancing accountability. In Dag v Canada (Minister of Finance) [1997] 2 SCR 403
(Dagg], Justice La Forest (in dissent but not on this poing, held that access to
information legislation is intended to promote disclosure of documents held by public
institutions, thercby enhancing Canadian democracy through increasing government
transparency
63 Righs to sureheld infomation are deigned to improve the
workings of government to make it mor eftve, responsive and
accountable. Consequent, while the dece to fformat det
(RSC 1985, A1] resounizesa broad igh of access o "any record
under th conrol ofa goverment instution® (1.1), itis important
to have regat to he overrchng purposes o t Actin daemining
whther an xcrupton to hat gevern igh shoud b rated
( ‘The Ontario Superior Court affirmed Justice La Fores‘s statement in
Ontario Medical Association v Ontario Onformation and Privacy Commissioner), 2017
ONSC 4090 at paras 33 and 36:
(33) Th second observation is tat this argument ignores he wel.
established rionle that undefis acces to nformation epstin
That tional is thatthe public is entiled o information in the
rosso of hir goverment so tat he public nay, among othr
things, bold thir goverment ascounabls As La Fors J. wid in


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Dax v Canada (Mister of Finaico, 1997] 2 SC. 40 t pars
1
The overecting purpose of acces to infomation epivaton,
the. isto eiltredemowny, does so in worclted vays:
It help to ensure fis, hat ciens have the nformation
required to purtipte meaningfily in the demeeraie
process and secondly that oltiinsand bosses remain
accoutah to he citzen:
and futher at pas 63:
Righs t tats held informaton ar design o improve the
workings of sovemment to make it more effiths,
responsive and accountable
131] Th proper queston to b ased n this content, therefor., is not
"ly do you need t" bt rather is why should you not have it"
ien In Saskatchewan, this Court has also held that a primary: purpose of
LAFOIP is to promote accountability in public institutions. In Leo v Global
Transportation Hub Authority, 2019 SKQB 150 (Leo}, Justice Kalmakolt (ex offcio)
held (at pass. 18 and 19):
(18) n Jab Doev Omara (Finance) 2044 SCC 36at pus 23, 20A)
2 SCR 3 oin Doel the Supreme Coun of Canada conciy
surmarised he levidive purpose of acces to nformation satues
sch as FOTP, I the pring parigiphs Justice Rothstein wore:
11] Access t information Ivitaion sores an inporiant
yuldl meres: nssoumbilty of govemmen t the ibremn:
An open and demoentic society requires pable access to
government infomation to enable public deta on the
conduct of overnment inttuions
[2] However as wit al rghs recognized naw, h igh of
access to infomation is ot unbounded. All Cancion access
to infomation statues balince access to. goverment
infomation with he potecton of othr incress tat would
be advely afeted by othersse unbridled dclowre of
such infomation.
119] Jusice Rthtein went on t s at pre, 41, tht sotues he
ZOIP ssublish a presumption in favour of pianting access to


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information, because accss t informaion in he hands of a public

inturion can inrese ramsparen in goverment convibte oan

informed publ and enhance an open and denocati sociay. This

requires tha the ciiveny be grated acces to goverment eco:

when itis nesesiu to meaninfil public debate on the conduct of

povernment insttions However, he cauions tha the resumption

in fivou of ranting access must be rebutable in thos imted and

specife cumstances where the epsation pernits an exemion to

the government intwion.

(b) _ Exemptions to Disclosure are Limited and Specific
2 While the object of LAFOIP is to promote openness, transparency and
accountability, the legislation still contains specific exemptions which protect certain
classes of information or specifi pieces of information from disclosure. It is well
settled that such statutory exemptions are "intended to have a meaningful reach and
pplication": General Morors Acceptance Corp. of Canada v Sastatchewan
Government Insurance (1993), 116 Sask R 36 (Sask CA) at pan 11, However, in order
to give meaning to the overriding purpose ofthe legislation, statutory exemptions must
be interpreted harmoniously, in context, and in a "limited and specifie way" (Leo at
para 19)
i231 "The exemption from disclosure contained in s. 17G) of LAFOIP is often
referred to as the "research exemption", It provides thatthe head ofa university ha the
discretion to decide to refuse to disclose "details of the academic research being
conducted by an employee of the university
taal Section 17G) of LAFOIP is a "class based" exemption. The provision
does not reference any consequence that must result from the release o the information
inorder fo the exemption to apply. This isin contrast to other "harm based" exemptions
found in LAFOIP, Fo example, ss. 18(1)(eX6) (%) and (i) are harm based exemptions
which provide that disclosure of third part information shall be refused when it can


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reasonably be expected to result n: financial oss or gain, prejudice to a competitive
position or. interference with a negotiation.
s) As such, when relying on s. 17G) of LAROIP as a reason to refuse to
disclose information, the University must only establish that the information in question

in this case, the Funding Identity Information — fill within te class of "details of
academic research" in order o invoke the exemption
t2s] ‘There are no reported Saskatchewan cases dealing with the research
exemption contained in s. 17) of L4FOIP, In addtion, the term "research" is not
defined in LAFOIP, The Freedom of Information and Protection of Privacy Act, $$
1990.91, c F—22.01, nor The Health Information Protection Act, S8 1999, c HQ.21
However, Ontario‘s Freedom of formation and Protection of Privacy Act, RSO 1990,
¢ F31 [RIPPA], which also contains a "research exemption*, has been the subject of
some legal review and analysis. Under Ontrio‘s A/P?4, an exemption from disclosure
exists fora "record respecting or associated with research conducted or proposed" by a
person associated with an educational institution: s. $.1(a) Decision— makers in Ontario
have developed a practice of using the definition of "research" as itis defined in
Ontario‘s Personal Health Information Protection Act, 2004, S0 2004.3, Sched A as
having an equivalent meaning in Ontario‘s AIPPA: see Carleton University v
Information and Privacy Commissioner of Ontario and John Doc, requester, 2018
ONSC 3696 at para 7. "Research" is understood to mean "a systematic investigation
designed to develop or establish principles, ficts or generalizable knowledc, or any
combination of them, and includes the development, testing and evaltation of
research." 1 accept this is an ordinary meaning of research that should be used to
interprets. 17G) of LAFOIP


12

2m in addition, by relying on Hansard from the Ontario legislature, he
Ontario Privacy Commissioner has found that the purpose of the research exemption"
under FIPPA is "to protect academic fredom and foster competitiveness"; Carton
University (Re), 2011 CanLtl 3432 at pages 5 and 8 (Ont IPC); Universit of Orawa
(Re), 2012 Canl.Il 31568 (Ont IPC) at pres 23—29 [UOinawa 2012]
128] As there is no relevant provision from Saskatchesan Hnsard to assit in
interpreting the legislature‘ purpose in enacting the research exemption contrined in
s. 170) of LAFOIP, 1 also accept the purpose that was articulated for the research
exemption under Ontario‘s FIPA. The purpose of a rescarch exemption, such as
s. 17(3) of LAFOIP, isto promote academic freedom and foster competitiveness within
public universities. Generally speaking, academic feedom is the freedom to pursue
knowledae and to express ideas without undue or unreasonable interference.
i291 "The question, then, is whether disclosing Funding Identity Information
constitutes the disclosure of "details of academic research" pursuant to s. 17G) of
LAFOIP, which infringes upon academic freedom and competitiveness.

(©) — *Details" Means Particulars About the Research, Itself
301 1 find that the word "details", as itis used ins. 17) of LAFOIP, means
a specific, particular piece of information: about the academic research that is
undertaken
n The word "detail" is not defined in Alack‘s Low Dictionary. ‘The
Cambridge English Dictionary delines detail" as (1) "a single piece of nformation of
fact about something; (2) "information about someone or something"; and (3) the
"small features: of something you only. notice. when you. look: curcfilb";
<https=/dictionary.combridac ore/ditionary/cnelish/deuil> (8 February 2021).


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l Because the meaning and scape of a word may differ sinificantly
depending on the dictionary used to define it, am hesitant to rely on a dictionary
definition as determinative of the ordinary meaning of details" ns, 170) of LAFOIP:
Sullivan on the Construction of Statutes, 6" ed (Markham: LexisNexis, 2014) at 30
Nevertheless I accept that, in ordinary use, a "detail" is something that is specifically
related to th item in question Itis an individual feature or characteristi of th tem.
B31 "This definition alone, is insufficient to lean the meaning of‘. 173). To
determine whether Funding Identity. Information constitutes "details" of academic
research, the ordinary meaning ofthe word "detail" and the phrase "details o academic
rescarch* must be considered in th context in which itis used in LAFOIP, taking into
account LAFOIPs purpose and objects, as well as any other related provisions which
exist in the LAFOIP
[341 in Ontario, the Ontario Divisional Court has determined that there need
only be "some connection" between the requested record and the academic research in
question to trigger the protections from disclosure contained in the ‘research
exemption": Ministry of Artorney General v Toronto Sar, 2010 ONSC 991 at paras 42>
46, 101 OR (30) 142. However, the lnguage used in Ontario‘s AIPPA to express the
research exemption is considerably broader than that used in L4FOIP.
sl Section 170) of LAFOIP provides that a head of a university may refuse
to disclose records which reveal "details" of academic research. Use of the term
"details" suggests a specific and pointed connection between the record and the
academic research, For contrast, the phrase, "respecting or associated wth research‘,
used in s. 65(8.1)(a) of Ontario‘s FIPA suggests a broader relationship between the
record and the academic research. The difference is significant


14 ~

i361 In my view, th use ofthe trm "details ins. 170) of LAFOIP indicates
that there must be a specifi nexus between the record for which disclosure is sought,
and the academic research being conducted. in order for a universty to rely on this
provision to refuse disclosure. A specific nexus ties the record to the research tse.
Conversely, the term "respecting or associated wth research" allows a looser, more
tenvous, connection:

ion The University relies on several cases from Ontrio‘s Privacy
Commissionr for the proposition that any financial information respecting an
academic research project constitutes "details of the academic research". being
conducted by the University. In UOitema 2072, the Office ofthe Privacy Commissioner
[Privacy Commissioner] held that the research exclusion applied to expense reports
from a research project. The Privacy Commision noted tht the records elated to
how funding received for the project was being used. As such, an analysis of the
expenditures might reveal features of the research being conducted (at para. 51).
Similarly, in University of Western Ontario (Re), 2013 CanLIt $117 (Om IPC)
{University Western Ontario 2013], the Privacy Commissioner held that documents
relating to the expenditure of research funds in furtherance of the research activities
were captured by the research exemption and were not subject to disclosure.

(38) However, in an cartier case, University of Western Omerio (Re). 2008
CarswellOnt 11575 (W) (Ont IPC) [University Western Omario 2008}, he Privacy
Commissioner noted that records conceming research funding apliations are distinct
from the research itself "Funding applications fo esearch facilites cannot be equated
with actual research projects that willbe carried out in those facilites" at pra. 84). In
that case, the university received extemal grants to fund development of a wind tumne!
to study bird migration. The external funders names were made public. The universty


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issued a request for proposals for developers to buil the wind tunnel forthe research
An individual late applied for access to certain records related to the request for
proposals. The university denied access, relying on the research exemption
() The Privacy Commissioner found that records related to the request for
proposals should be disclosed, finding thatthe university did not establish a substantial
connection between the funding records requested and actual academic research
because the records were not prepared for a specific research project and did not
disclose, "directly or by inference, the particulars or broad objectives" of any research
project (at para. 85).
1a01 University Western Ontario 2008 was decided when the tet to rigger the
research exclusion in Ontario required a "substantial connection" between the record
and the academic research, not just "some connection", In my view, this makes the
University Western Omario 2008 decision particularly relevant to the instant case
because Saskatchewan‘s L1ROIP also suggests that a substantal connection is required
between the record and the research, itself By using the term "detail", s. 17G) of
LAFOIP signals that a specific or pointed connection must exist between the requested
record and the academic research in order for the record to constitute "details" or
particulars of the academic research, and be protected fom disclosure. Thus, find that
a record or ieee of information which discloses "details of the academic research being
conducted" pursuant to s. 173) of LAFOIP is one which discloses, directly or by
inference, the particulars of the academic esearch, isclf
i811 Even without the significant difference in the language used to express
the research exemption in Ontario versus Saskatchewan, I find that the UOrtama 2072
case and the University Western Ontario 2013 case are distinguishable on ther facts.
While UOramma 2012 and University Western Ontario 2013 find that expense reports


—1s
wre records connected to academic research, there isa significant difference between a
record that discloses who provided funding to whom versus one that discloses how that
funding was used. This difference lies in whether a requested record might reveal
something about the particulars — that is he specifies or "details" ofthe methodology,
mode or results — of the academic research itself. This was acknowledged in UOrtewa
2012, when the Privacy Commissioner noted that th disclosure of how funding was
directed by the affected parties "may in fact reveal detail about the research conducted
by the parties® and was therefore not disclosable
L2 There is also an argument that Funding Identity Information constitutes
"details" of academic research because s. 17(4) of LAFOIP expressly requires
disclosure of the amount of funding being provided for academic research. Arguably,
by conjoinine s. 17) with s. 17), and then expressly distinguishing s. 17G), this
suggests that the amount of funding received for a research project is a "detail" of
academic research. Ifthe amount of funding received for research constitutes a detail
of the research, it follows that the identity of the funder might also be a detail of the
research
143) However, find thatthe amount of funding received to conduct academic
research is not a detail of academic research. Again, this is because disclosing the
amount of funding does not reveal the particulars of the research ~ the questions,
methodology, results or conclusions ofthe research, itself. Thus, while the legislature
has specified that the quantum of research funding received by a public insitution will
alvays be subject to disclosure, this dos not affect th status of the Funding Identity
Information


17

(d) — Other Provisions in LAFOTP Address Specific Harm
i941 My finding that Funding Identity Information is not a detail of academic
research is also supported by the interprtive principle that separate provisions in an
enactment should be interpreted as having separate meanings and specific purposes and
should be read harmoniously. tis a well—setled principle of legislative interpretation
that th legislature does not intend to include superfluous provisions in enactments
1s) The University argues, and 1 accept, that there may be harms associated
with disclosing Funding Identity Information in cerin cases. The hypothetical
examples of harm put forward by the University are mainly focused on risks to
economic and competitive advantage. Hypothetical examples include the risk of breach
of contract; breach of confidentiality or legal privilege; harm to the ability to later
commercialize research; harm to priory of publication; harm to competitive advantage
of the thirdparty funders; and harm to competitive advantage of the University in
securing funding. There is also the possiblity, however remote, frisk tothe personal
security of researchers engaged n research funded by controversial funders.
1161 However, LAFOIP contains a number of provisions, ther thin , 17),
which exists to protect a record from disclosure if a harm will result from that
disclosure. The following provisions in £1FOIP address the hypothetical examples of
harm raised by the University


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Concern C LAFOTP protective provision
Some funding is provided by extemal | Section — T7OD(@) — provides. tho
donors on the contractual condition that information may. be. protected. from
the identity of the funder remain private | disclosure if it. could. reasonably. be
or confidential expected t interfere with contractual or
other negotiations of the University
[If the identity of a department or unit | Section 20 allows disclosure of a record
receiving funding is disclosed, this may | to be refused on the basis that such
threaten the physical safey or mental | disclosure would affect "the safity or the
health of the researcher. physical or mental health of an
individual"
Some research is funded in support of | Section 21(a) ereates discretion to refuse
litation. Disclosing the identity of the | to disclose a record that "contains any
funder could. disclose the. fact. that | information: that. is. subject to. any
research. was. being. conducted,. thus | privilege that is available at Taw, This
breaching. the protection. of litiation | includes tigation privilege.
privilege.
‘Research funding may be "scooped" by | Section — 170DX(D —— provides — that
other universities, thus prejudicing the | information "can be protected.. from
University‘s competitive position disclosure. if. such disclosure. could
reasonably be expected to prejudice the
economic interests ofthe University.
Competitor corporations may learn about | ection — 18(I)(e) protects information|
one another‘s research, thus prejudicing | from disclosure if such disclosure would
the funding corporation‘s competitive | prejudice the competitive position of a
position third party.
Providing the identi, o a funder of Section. 18(D(c) protects information
rescarch may result in difficulties when | from disclosure if such disclosure would
the — corporation . wishes... to . later| prejudice the competitive positon of a
commercialize the research it funded. | third party
1471 The existence of these exemptions suggest that s. 17(3) was not
intended to be used as a blanket denial to address specific economic and
competitive harms.. On the contrary, this type of harm is to be addressed on a


19

cuse—by—case basis, relying on specific "harm based" exemptions, rather than
the "class—based" exemption of‘s. 173)

(€) — ‘There is No Evidence that Disclosing Funding Identity is a

Threat to Academic Freedom

(18) Finally, the University has argued that disclosing Funding entity
Information would have a general chilling effect on academic freedom, resulting in a
reduction in research activiy. 1 find, however, that here is no admissible evidence to
support these contentions. In her February 18, 2020 affidavit Dr. Kathleen MeNut
states:

22 ... Requiring the Univerity to diclos the rane o th finding

ascicy willespoe rescurher to uanaranted sutiny and ptenial

erticiin, or pesonl or profesional backs with espetto or

whom they choose to perform rescarch Prfesors would no lower

hive the envionment to pursue inovative reseach inclucing for

what may be considered to be contovesial urpoplar or placing

eatticsor causes, hout ear ofdisclosre and ening eprials

23.Canenty, researchers hav complet atonomy in dtemiring for

‘who and in what ares thy conduct reseach fh Univenity could

not provide proetion for researches in respect of iter as he

sourse of thir reserch funding and the (deny o the cates or

whom they perfom reseach hat would erode thirighstoncadenic

Erdem and could cause a signfantcurallmen ofresrc actvit.

Researchers may be reucton to ike on rscuch projets knowing

that they would have no sy in whether devils reating to thir

sponsor could be obsinad by members of the public and oter

profissors through acces requests unde the Act
191 In my preliminary decision in this matter, 1 suggested that hypotheticals
could be used in legal argument to demonstrate why Funding Identity Information was
or was not "details of academic research", However, Dr. McNut‘s statement goes
beyond stating fats upon which to found a hypothetical example. Her statement is a
statement oF opinion. and itis not based on any facts established in the other materials
filed in this matter, I note that the issue of whether academic freedom is thrtened by


20

private research funding at public universities isthe subject of considerable scholarly
and popular debate: see, for example Manuela Hugentobler, Markus Muller & Franz
Andres Morrisey, "Private Punding and its Dangers to Academia: an Experience in
Switzerland" (2017) 7.2 European Journal of Higher Education 203—213; Molly
McCluskey, "Public Universities Get an Education in Private Industy®, The Atlantic
Monthly 3 April 2017); Lisa Bero, "When Big Companies Fund Academic Research,
the Truth Offen Comes Last‘, (The Conversation, 2 October 2019), online:
<itps:/thecomensation.com> (2 February 2021). However, none of the affints who
fied aidavits on behalfofthe University have been qualified t give opinion evidence
on that issue.

(so) As such, Dr. McNut‘s statement, noted above, is argumentative and
speculative. It is not admissible; There is no evidence before me that proves that
disclosing Funding Identity Information presents a general threat t academic freedom.
ist] In the result, 1 fin that Funding Identity Information does not constitute
"details of academic research being conducted" within a public university so as to
trigger the class exemption from disclosure provided by . 170). The broad purpose of
LAFOIP isto promote openness, transparency and accountabliy in public institutions
such as the University, and the purpose ofs. 17) of LAFOTP is to protect academic
freedom and foster competitiveness. However, th exemption from disclosure provided
by s. 17(3) must b interpreted in a limited and specific way. The lepisature‘s use of
the word "details* i the phrase "details of the academic research being conducted"
suggests that there should be a specific and substantial connection between the record
requested and the academic research, itself. The protections from disclosure provided
by s. 17) should not be triggered unless disclosure of th record would reveal, directly
or indirectly, the particulars of the research projec, such as is methodology, results or


21

conclusions. This limited and specifc interpretation is supported by the fct that other
provisions exist in L4FOIP to address the hypothetical economic and competitive
harms which may: result from the disclosure of Funding. Identity Information.
Disclosing Funding Identity Information docs not risk the disclosure or details of the
research, itself. Finally, there is no evidence that disclosing Funding. Identity
Information generally threatens academic freedom:
(2 Ultimately, requiring that Funding Identity Information b disclosed is in
keeping. with promoting. transparency, openness and. accountability: in. public
institutions, such as the Universit. I this information is publicly avalable it provides
community members with information that may. be relevant to the context of the
academic research, thereby providing the public with the ablity to consider, analyze
and debate the funding choices made by a public institution. This enhances the
University‘s accountability, whichis a key purpose of cess o nformation legislations
Dagy at pan 63.

3. The University‘s Exercise of Discretion
iS] As 1 have decided that the identity of the funding agency and of the
funding recipient are not "details" of "academic research" pursuant to s. 17G) of
LAFOIP, itis not necessary for me to consider the issue of the University‘s exercise of
discretion.
& CONCLUSION
is11 "The University has refused Dr. Eaton access to two types of records — the
identity of the funder and the identity of the department or unit receiving funding = in
relation to petrolcum research being conducted within the University. t did so by
relying on a discretionary class exemption which allows the University to refuse to


—n~
provide "details of the academic research being conducted by an employee of the
univers". I have found thatthe two types of records requested by Dr. Eaton are not
"details" of academic research and do not fll within this class exemption. However
this does not mean that every record within the two types requested by Dr. Eaton is
inescapably subject to disclosure.
iss) While 1 have determined that Funding entity Information is not
captured by the "research exemption" in s. 170), it is still possible that such
information may be protected from disclosure by other exemptions under LAFOIP:
iss) 1 have reviewed the Database Query Spreadsheet which was filed sealed
with the court. The filed hard copy of the Database Query Spreadshectis cut—off and
does not provide the complete information that I assume is contained n cach category
of the electronic version ofthis document. In any even, rom what I can discern from
the copy provided, the Database Query Spreadsheet shows that a significant amount of
funding for esearch conducted at the University is provided by public sources, while
some other funding is provided by the private sector
isn The University is entiled to consider whether disclosing Funding
Identity Information for any specifc research project may result in harm prohibited by
other provisions of LAROIP. As a result, 1 have determined that tis no appropriate for
me to order thatthe Database Query Spreadsheet be disclosed at this point. However, I
reiterate thatthe effect of my decison is that the University cannot ely on s. 170) as
a blanket exemption to refuse to provide Funding Identity Information. This should
result i a significant amount of th information requested being disclosed to Dr. Eaton.
In order to refuse further disclosure, the University must demonstrate, on specific
evidence, why a specific enumerated exemption applies to Funding. Identity


23
Information for a specific research fil. Otherwise, the Funding Identity Information
for th research fil in question must be disclosed.
158] Dr. ston is successful in both the preliminary application and the curent
pplication. She shall have the costs of 2019 SKQB 127 on Column 11. and the cots
of this application on Column Hl. The matters were comples, involving the
interpretation of a provision of LAFOIP that had not previously becn considered, and
involving multiple aidavits. The preliminary application was particularly contentious
and required significant preparation and response by Dr. ton. While Dr. ton sought
solictor—client costs in relation to the preliminary application, I do not find that the
preliminary application was so exceptional as to warrant solicito—client costs, but
Column 11 costs are approprite.
1s91 Finally, 1 had the benefit of very able submissions from counsel for both
parties and I thank them for their assitance.
— 1.
MR. MCCRIARY