Final Report of the Select Special Freedom of Information and Protection of Privacy Act Review Committee

Report of the Select Special Freedom of Information and Protection of Privacy Act Review Committee

EXECUTIVE SUMMARY OF COMMITTEE RECOMMENDATIONS

Scope of the Act

1. That a new provision should be added to section 1(1)(f) of the Act to authorize the Minister responsible for an affiliated agency, board, or other public body designated in the FOIP Regulation to appoint the head of that body for the purposes of the Act. If the Minister does not appoint a head, the head should be the "chief officer" charged with the administration or operation of the public body.

2. That the definition of health care body in section 1(1)(g) of the Act should be amended to:

a) provide that hospitals and nursing homes directly owned and operated by Regional Health Authorities (RHAs) are included as part of the RHA for the purposes of the Act, while providing that other public hospitals, nursing homes, Community Health Councils and subsidiary health corporations not directly owned and operated by the RHAs are included as separate public bodies under the Act, and

b) clarify that the Alberta Cancer Board is included as a health care body subject to the Act.

3. That the definition of law enforcement in section 1(1)(h) of the Act should be amended to provide that:

a) it covers formal police investigations as well as formally authorized security and administrative investigations of an internal nature which can lead to penalties or sanctions,

b) it includes records where one public body carries out an investigation and another invokes the penalties or sanctions, and

c) it includes the complaint that initiates an investigation.

4. That the definition of local government body in section 1(1)(i)(xvi) of the Act should be amended to specifically include municipal and regional police services as public bodies separate from Municipal Police Commissions.

5. That RCMP detachments operating as municipal police services should not be included as local government bodies under the FOIP Act, because of potential conflict with the Federal Act. However, provisions should be made in contracts between the Province and the Federal Government to include FOIP requirements. It is recommended that the Minister of Justice communicate with the Federal Government to seek clarification as to when the contract can be opened for this purpose. Until this can be accomplished, the access and privacy requirements of the Federal legislation should continue to apply.

6. That the definition of local government body in section 1(1)(i)(xvi) of the FOIP Act should be amended to include municipal library boards, library system boards, federation boards and joint municipal boards as defined in the Libraries Act.

7. That section 1(1)(i)(xvi) of the Act should be amended for the purpose of clarity, by removing the words "under the authority of".

8. That an amendment should be made to section 1(1)(i)(xvi) of the Act to provide for the local authority utility companies, EPCOR and ENMAX specifically, to be excluded from the FOIP Act.

9. That the criteria for the inclusion of agencies, boards and commissions under the Act should be established in a new section of the FOIP Act or in the FOIP Regulation, rather than in policy as is presently being done.

10. That section 3(e) of the Act should be amended to change the phrase "by-law of a local government body" to read a "by-law, resolution, or other legal instrument by which the local public body operates or as authorized by the governing body of a local public body" to enable all local public bodies to establish criteria for disposing of records.

Expansion of the Scope of the Act

11. That the criteria for inclusion of agencies, boards and commissions, etc. noted in section 1(1)(p)(ii) of the Act should be expanded to include bodies whose primary purpose is to perform statutory functions or functions under an enactment.

12. That contracts between a public body and another body to perform some statutory functions, or functions under an enactment, should include access and privacy requirements related to the Act, to the extent of the statutory functions being performed.

13. That the Act should not be extended to include self-governing professions and occupations. However, a recommendation should be made to Government that common general guidelines for access and fair information practices be established, which if substantially complied with, would avoid reconsideration of whether that profession should be subject to the Act.

14. That the issue of including the private sector within the scope of the Act should be considered in the next review of the FOIP Act in approximately 3 years, or earlier if circumstances should make that necessary.

Exclusions from the Act

15. That section 4(1)(b) of the Act should be amended to include notes, communications and draft recommendations, related to a judicial or quasi-judicial matter, that are composed by persons who directly support judicial and quasi-judicial officers in their work.

16. That section 4(1)(c.1) of the Act should be amended to replace the word "record" with the word "information" so that the personal information collected by the Ethics Commissioner regarding disclosure statements of deputy ministers and other senior officials is excluded from the Act.

17. That section 4(1)(e) of the Act, which excludes teaching materials or research information of employees of a post-secondary educational body from the scope of the Act, should be amended to extend the exclusion of teaching materials to those owned by the post-secondary institution, or jointly owned by the institution and employee, as well as by the employee.

18. The Committee considered the fact that the historical purpose of public registries included that of providing information of public interest to others, about ownership, licences, permits, and even some information about an individual. Considering the historical purposes and practices of public registries and the review process currently under way by Alberta Registries, the Committee recommended that the Registries should continue to be excluded from the scope of the Act under section 4(1)(h).

19. That section 4(1)(i) of the Act should be amended to provide that personal or constituency records of local elected officials be excluded from the Act, but records of the business of the local public body in the custody of the elected official be included under the Act so that there is some parallel between privileges afforded MLAs and members of local authority councils and boards.

20. That section 4(1)(i) of the Act should be amended to reflect that there be no distinction between the treatment of councillors, board members or trustees of local authorities who are elected as compared to those who are appointed.

21. That section 4(1)(i) of the Act should be amended to reflect that the term "governing body" be defined for this section, and also for sections 22(1)(b) and 88(1)(k), to include the Board of Governors and the General Faculties Council in universities and the Board of Governors and Academic Council in colleges.

22. That a new clause be added to section 4 of the Act to exclude medical, critical incident and/or quality assurance records of physicians in health care bodies from the scope of the FOIP Act.

Paramountcy (Relationship to Other Acts)

23. That the existing paramountcy provisions established in compliance with section 5(2) of the Act should continue, but suggested that in actual practice, paramountcy should preferably be established directly in the enabling Act and use of the FOIP Regulation should be reserved for time-sensitive situations.

24. That the current sunset date of October 1, 1999 in section 15(3) of the FOIP Regulation should be extended to October 1, 2001 for the paramountcy of the particular sections of each of the following statutes:

· Environmental Protection Enhancement Act

· Mines and Minerals Act

· Natural Gas Marketing Act

· Electric Utilities Act

· Loan and Trust Corporations Act

in order to allow for the consideration of the paramountcy of each of these sections to be established in the respective statute. The inclusion in statute should, however, be undertaken as soon as reasonably possible.

Obtaining Access to Records

25. That a new section be added to the Act to provide that:

a) if a public body has not received the initial fee or any required fees within 90 days of providing a fee estimate, or if an applicant has not responded to the public body within 30 days of being contacted, then the public body can declare the request abandoned;

b) there should be a requirement for the applicant to be notified in writing of a decision to declare a request abandoned; and

c) the decision can be appealed to the Information and Privacy Commissioner within 60 days.

26. That section 13 of the Act should be amended to add a new provision that would allow the Information and Privacy Commissioner to approve a time extension for processing access requests by taking into account the total effect of concurrent requests by the same applicant, or by two or more applicants who work in association.

Exceptions to Disclosure

27. That section 16 of the Act, which pertains to disclosure of information harmful to personal privacy, should be amended by reconfiguring its subsections, in order to make it easier to follow its intent. A recommendation should also be made that Alberta Labour and the Office of the Information and Privacy Commissioner collaborate to prepare an information bulletin to explain its application.

28. That section 16(2)(b) of the Act should be redrafted to provide that a disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy if the personal information was compiled and is identifiable as part of a law enforcement matter, except to the extent that disclosure is necessary to continue or conclude the investigation.

29. That section 16(3) of the Act should be amended by adding a new subsection that would direct the head of a public body, when determining whether disclosure of personal information about a third party would be an unreasonable invasion of privacy, to take into consideration whether the personal information about the individual had originally been provided by the applicant.

30. That section 16(4)(g) of the Act should be amended to provide that:

· disclosure of personal information is not an unreasonable invasion of a third party's personal privacy if the disclosure reveals details of a licence, permit or other similar discretionary benefit related to a commercial activity granted to the third party by a public body or its agents; or

· the disclosure reveals details of a licence, permit or other similar discretionary benefit related to real property, including but not limited to a development permit or building permit, granted to the third party by a public body or its agents; and that

another section should be added to provide that for the purposes of section 16(4), details of a licence, permit or other similar discretionary benefit are limited to the identity of the third party and information describing the nature and privileges of the licence, permit or other similar discretionary benefit.

31. That section 18 of the Act should be amended by changing the phrase "government contracts" to read "contracts of public bodies" so that the exception for confidential evaluations includes contracts of all public bodies, not only Government contracts.

32. That section 18 of the Act should be amended by adding a subsection that provides for a discretionary exception to disclosure of only the identity or identifying content of a reference that has been submitted in confidence by peers, subordinates and clients in a formal evaluation process.

33. That section 19 of the Act should be amended to provide that criminal intelligence information that has a reasonable connection to the prevention or suppression of organized criminal activities or to serious and repetitive criminal activities will be excepted from disclosure in the Act.

34. That section 19 of the Act should be amended to provide that information that could reasonably be expected to interfere with or harm ongoing or unsolved investigations may be excepted from disclosure.

35. That section 20(1)(a) of the Act should be amended to include an Aboriginal authority with formal legal status in the list of Government organizations with whom relations must not be harmed due to disclosure of records.

36. That section 22(2) of the Act should be amended to reduce the time frame after which exception to disclosure no longer applies for local public body confidences from 15 years to 10 years.

37. That section 23(1)(f) of the Act should be amended to clarify that the exception to protect agendas or minutes of meetings applies only to the governing body or subcommittees of the governing body of agencies, boards, commissions and other public bodies that are listed in the FOIP Regulation.

38. That section 23 of the Act should be amended to include a provision for protecting incomplete formal research and audit reports and to provide that when the report is completed, or after 3 years where no work or progress has been made on the report, that this provision would cease to apply to it and any of its draft versions.

39. That section 24 of the Act should be amended to clarify that priority of publication of all formal research information is protected, not just scientific or technical information.

40. That section 25 of the Act should be amended to clarify that standardized tests used by public bodies, such as intelligence tests, are included in the exception to disclosure for testing procedures, tests and audits.

41. That section 26(1) of the Act should be amended to provide that legal advice or legal services provided directly by the Minister of Justice and Attorney General himself/herself, as well as by an agent or lawyer would be subject to exception from disclosure as solicitor-client privilege.

Rights of Third Parties

42. That section 29 of the Act should be amended to provide that the time permitted under the Act to consult with third parties would extend the time limit allowed to process a request by the same amount of time, without requiring the public body to request an extension from the Information and Privacy Commissioner.

Protection of Privacy

43. That section 32 of the Act should be amended by substituting the phrase "by or under an Act" with "an enactment" to make it clear that authority to collect information may be provided in an Act or a regulation.

44. That section 33(1) of the Act should be amended to provide for the indirect collection of personal information about an individual in health and safety emergencies, where the individual is unable to provide it directly.

45. That section 33(1) of the Act should be amended to provide for indirect collection of relevant personal information, if the purpose of the collection is to determine the suitability for an honour or award, such as an honorary degree, scholarship, prize or bursary.

46. That section 33(1) of the Act should be amended to provide for indirect collection of personal information, from published or other public sources, by public bodies such as the post-secondary educational institutions, for the purpose of fund-raising.

47. That sections 33(1)(j) and 38(1)(v) of the Act should be clarified to prevent employment references from being exchanged between public bodies without the individual's consent except that such exchange may occur within the Government of Alberta or within a local public body.

48. That section 33(3) of the Act should be amended to provide that subsections (1) and (2) do not apply if the head of the public body is "reasonably certain" that compliance with them would result in the collection of inaccurate information.

49. That security and protection requirements related to computer data matching, data sharing and data linkage of personal information, which are now outlined in policy, should be specified in the FOIP Regulation at a minimum, and in the FOIP Act where possible.

50. That section 34(b) of the Act should be amended to permit the destruction of personal information before the passage of a year where the individual, the public body and the body that has authority to approve the Records Retention and Disposition Schedule, agree in writing to destroying the information.

51. That section 35 of the Act should be amended to provide for the transfer of requests for correction of personal information to the public body that originally created the record or collected the information about the individual.

52. That the term "compiled" which is used in addition to the term "collected" in sections 37(a), 38(1)(b) and 39 of the Act should be removed as it is redundant.

53. That section 38(1)(a) of the Act be amended to allow for the disclosure of personal information, without the requirement for a written FOIP request, provided that the test requirements of section 16 have been applied to determine that the disclosure is not an unreasonable invasion of personal privacy, and that policy should be established pertaining to documentation when personal information has been disclosed in this manner.

54. That section 38(1) of the Act should be amended to provide that a public body may disclose information about observable circumstances, situations, or occurrences, including such things as:

· enrolment in a class or school,

· admittance to a public education, health, or other institutional facility,

· attendance at or being part of a public function such as a graduation, a field trip or a ceremony, and

· an achievement award or a recognition that was or could normally be part of a public presentation

provided that personal details related to these matters may otherwise be subject to protection of privacy rules.

55. That the introductory clause of section 39 of the Act should be corrected to reference section 38(1)(b) rather than section 38(b).

56. That section 38(1)(g) of the Act should be amended to allow for the disclosure of personal information to an officer or employee of another public body where it is necessary to deliver a common program.

57. That section 38(1)(j) of the Act should be expanded to permit disclosure for the purpose of determining if a person remains eligible for a program or benefit that he or she is already participating in.

58. That section 38(1)(q) of the Act should be amended to replace the words "next of kin" with "a spouse or close family relation", in addition to a friend of an injured, ill or deceased individual, who may be contacted.

59. That amendments be made to sections 37 and 38 of the Act that would allow post-secondary educational institutions to continue to reasonably use and disclose existing alumni data for fund-raising. Although not as a change to the Act, a supplementary recommendation was made that a process should be put in place as soon as practicable, to seek consent from the individuals on the alumni lists for the use of their information for such purposes.

60. That section 38 of the Act should be amended to include a specific provision for the release by an institution of teaching and course evaluations prepared by students. Policies must be established that will ensure this is done in a responsible manner so that the general evaluation information is available to students, while respecting the privacy of the individual who is the subject of the evaluation.

61. That a new section should be added to the Act to provide for access to records more than 30 years old, in the Provincial Archives of Alberta or a local public body archives, provided that records containing personal information about identifiable individuals, sensitive criminal or law enforcement matters the release of which might harm the justice system, records to which the Government or public body wishes to still apply legal privilege, or records restricted by other statutes, should remain subject to other provisions in the Act.

Office and Powers of the Information and Privacy Commissioner

62. That section 53 of the Act should be amended to expand the criteria under which the Information and Privacy Commissioner may consider whether a public body might disregard requests, to include those that are frivolous or vexatious. This provision should apply to both requests for access and to requests for correction of personal information.

63. That section 59 of the Act should be amended to permit the Information and Privacy Commissioner to delegate any of his duties or powers in accordance with administrative law, including his power to make orders, but not the power to delegate.

Reviews and Complaints

64. That section 63 of the Act should be amended to allow relatives of a deceased individual 60 days to request a review of a refusal to disclose personal information about the deceased individual.

65. That for clarity, in addition to the reference in section 30(3) of the Act, a third party's time limit to request a review by the Information and Privacy Commissioner should also be placed in section 63(2) of the Act.

66. That section 64 of the Act should be amended to allow the Information and Privacy Commissioner to sever part of a request for review where it is appropriate, when he is advising other parties that a request has been received by his office.

67. That a new section should be added to the Act to permit the Information and Privacy Commissioner to refuse to hold a review, when the same issue has been resolved in a previous order.

68. That section 70 of the Act should be amended to establish a time period of 30 days for all parties to seek a judicial review of an order of the Information and Privacy Commissioner, and to further provide that records may not be disclosed until that period has expired.

69. That sections 71 to 76 of the Act should be amended to provide for clarification of the existing conditions under which an adjudicator might be appointed when the Information and Privacy Commissioner is unable to hear a case; to clarify who may request that the Minister begin an adjudication process; to clarify the processes involved in determining whether the Information and Privacy Commissioner is in conflict, and to clarify the powers of the adjudicator and the adjudication process.

Offences and Penalties

70. That a new section should be added after section 85 of the Act to provide that an employee who properly discloses information is protected from adverse employment action.

71. That section 86(1) of the Act should be amended to provide for a new offence for persons who gain or attempt to gain unauthorized access to personal information in violation of the Act.

72. That section 86(1)(e) of the Act should be amended by providing that in addition to destroying any records, it would also be an offence to alter, falsify or conceal any record or to direct another person to do so, with the intent to evade a request for access to information.

Fees/Fee Waivers

73. That section 13 of the FOIP Regulation, which specifies fees permitted under section 87 of the Act, should be amended to:

a) simplify the fee structure for continuing requests by requiring that payment be made every time a cycle of a continuing request occurs, and

b) provide that when each cycle of a continuing request is renewed, the beginning of the 30-day time limit in which to respond to the request does not start until an initial down payment is received.

74. That section 87(4) of the Act should be amended to require that an applicant requesting a fee waiver first approach the public body with the request, prior to requesting a waiver from the Information and Privacy Commissioner. If the applicant is dissatisfied with the public body's decision, the decision would be reviewable by the Information and Privacy Commissioner.

General Provisions

75. That the existing section 89(b) of the Act, which allows a local public body the power to delegate, should be deleted, as delegation powers are provided in section 80.

76. That a cost-benefit analysis should be undertaken regarding the Directory, which is required under section 82 of the Act, for consideration during the next review of this legislation, however, until then, the requirement of the section should continue.

77. That section 88 of the Act should be amended to provide that an agency, board or commission may not be removed from compliance with the Act by virtue of changing its name but continuing to perform the same functions.

78. That section 88(1)(k)(i) of the Act should be amended to add the phrase "or committee of its governing body" in order to match terminology with section 22(1)(b) of the Act related to local public body confidences.

79. That the Minister of Public Works, Supply and Services should consider appointing a representative from the Office of the Information and Privacy Commissioner to the Alberta Records Management Committee (ARMC).

80. That the Committee urge the Government to establish policy and guidelines to identify procedures to enhance consistent data outsourcing protection including the issue of trans-border data flow.

81. That given the extension of the Act to the MASH sector in 1998 and 1999 and the pending Federal legislation dealing with privacy in the private sector, the FOIP Act should be reviewed again in approximately three years, or earlier should circumstances make this necessary, and thereafter at least every 5 years