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Report of the Select
Special Freedom of Information and Protection of Privacy Act Review Committee
RECOMMENDATIONS FOR AMENDMENTS
Purposes of the Act
Alberta's Freedom of Information and Protection of Privacy Act is seen as a cornerstone of an open, accessible and accountable government. The purposes of the Act, which are included in section 2, are based on the following five fundamental principles:
1. To allow any person a right of access to the records in the custody or under the control of a public body subject only to limited and specific exceptions;
2. To control the manner in which a public body may collect personal information from individual Albertans; to control the use the public body may make of that information; and to control the disclosure by a public body of such information;
3. To allow individuals, subject to limited and specific exceptions, the right to have access to information about themselves held by a public body;
4. To allow individuals the right to request corrections to personal information about themselves held by a public body; and
5. To provide an independent review of decisions made by public bodies under the legislation and the resolution of complaints.
The submissions received by the Select Special Freedom of Information and Protection of Privacy Act Review Committee indicated that the public generally viewed the principles underlying the legislation as appropriate. They are consistent with the fundamental principles of similar Canadian legislation and reflect the principles of fair information practices. The Committee agreed that the fundamental principles of the legislation are appropriate.
Scope of the Act
The Act currently applies to public bodies defined in section 1 of the Act, which include:
· A department, branch or office of the Government of Alberta,
· An agency, board, commission, corporation, office or other body designated as a public body in the regulations,
· The Executive Council Office,
· The office of a member of the Executive Council,
· The Legislative Assembly Office,
· The office of the Auditor General, the Ombudsman, the Chief Electoral Officer, the Ethics Commissioner or the Information and Privacy Commissioner, and
· A local public body, which is further defined in the Act to include an educational body, a health care body or a local government body.
The Committee considered the following issues related to the scope of coverage of the Act.
Designation of the head of an affiliated agency, board or other public body
The "head" of a public body is defined in section 1(1)(f) of the Act. If the public body is a department, branch or office of the Government of Alberta, the head is the member of the Executive Council who presides over it. For local public bodies, the head is designated by by-law or other legal instrument by which the organization operates. In any other case, the head is the chief executive officer of the public body.
The current definition of "head" in the FOIP Act does not adequately provide for the needs of some small organizations that are affiliated with Government departments. These bodies may be comprised of only part-time members and the department may be handling administrative functions on their behalf. It was suggested that in some cases it may be more efficient and practical for the Minister or a senior official of the department to be designated as the head of the affiliated organization for the purposes of the FOIP Act.
The current definition also does not adequately recognize boards, commissions and agencies that do not have a head with the title "chief executive officer". In some of the organizations, for example, the head is titled "Chairman".
The Committee recommended:
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.
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Definition of health care body
On October 1, 1998, the Act was extended to include health care bodies, which are defined in section 1(1)(g) as:
· an approved hospital as defined in the Hospitals Act,
· a nursing home as defined in the Nursing Homes Act,
· a Provincial health board established under Regional Health Authorities Act,
· a regional health authority under the Regional Health Authorities Act,
· a community health council established under the Regional Health Authorities Act, or
· a subsidiary health corporation as defined in the Regional Health Authorities Act.
Submissions received from the health care sector indicated that the definition did not adequately reflect the structural organization of health care facilities included under Regional Health Authorities (RHAs). In addition, it was noted that the Alberta Cancer Board was inadvertently not included as a health care body for the purposes of the FOIP Act.
The Committee unanimously agreed that it was most appropriate within the structure of the health care system that RHAs should be responsible for the administration of the FOIP Act in health facilities owned and operated by them. The issue of special provision for long-term care providers was raised but not pursued since the organization of long-term care was currently under review within the Ministry of Health.
The Committee recommended:
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.
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Definition of law enforcement
Under the Act, "law enforcement" is defined in section 1(1)(h) as:
· policing, including criminal intelligence operations,
· investigations that lead or could lead to a penalty or sanction being imposed, or
· proceedings that lead or could lead to a penalty or sanction being imposed.
The definition of law enforcement in section 19 provides for the exception to disclosure of a record if disclosure would be harmful to a law enforcement matter. Several submissions to the Committee raised concerns about the definition and its application. Based on the interpretation of this exception by the Information and Privacy Commissioner in his orders, a concern was identified that investigations undertaken by one organization and enforced by another would not qualify as a law enforcement activity.
There was also concern that the law enforcement exception might not adequately protect sensitive information relating to administrative investigations such as those relating to internal theft or sexual harassment, or investigations of review bodies that must look to other organizations to impose penalties or sanctions.
There was concern about the application of this exception to disclosure from the health, education, social service and municipal areas, for example, that security forces, such as campus security, would not be included.
Concern was expressed that expansion of the definition to include administrative investigations by bodies such as the Alberta Health Facilities Review Committee would render records in which there was legitimate public interest, inaccessible. It was further argued that extension of the law enforcement exception to cover any investigation that might lead to the turning over of a file to a law enforcement authority was inconsistent with the purposes of the Act.
The Committee felt that certain administrative investigations should be allowed the same protection as investigations by law enforcement agencies, and that the privacy provisions of the Act might not be sufficient to provide this protection. The Committee was also persuaded that, because use of the exception was subject to a harms test, rights of access would not be negatively affected. The issue of protecting the identity of complainants in administrative investigations in a manner analogous to the granting of informant privilege in criminal matters was considered problematic, but again it was agreed that the harms test requirement would allow the release of complainant information in appropriate cases.
The Committee agreed that the original intent of the exception was to ensure that legitimate law enforcement activities would not be compromised in any way and recommended:
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.
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Application of the Act to municipal and regional police services
Section 1(1)(i)(xvi) of the Act currently defines a local government body as including a Regional Police Commission, a policing committee, or a Municipal Police Commission, but it does not specifically include the Municipal or Regional Police Services.
It was requested that the Act be clarified to designate municipal police services as separate local public bodies in order to avoid conflict with the provisions of the Police Act and ensure good administration of the FOIP Act.
The Committee discussed the differing roles of police commissions and police services and agreed that police services should be treated as separate public bodies for the purposes of the Act. While this might be perceived to undermine civilian control of the police force, it was noted that there are already legislated limitations upon what police service records may be released to police commissions.
The Committee recommended:
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.
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Application of the Act to RCMP detachments operating as municipal police services
In addition to services provided by municipal police services, policing in Alberta is also provided by the Royal Canadian Mounted Police (RCMP) acting in a number of capacities. The Committee received submissions about access to RCMP records, including that the FOIP Act does not make it clear whether or not an RCMP detachment is covered when that detachment is acting as a municipal police force.
The Committee agreed that it would be desirable for RCMP detachments operating as municipal police services to be included under the Alberta FOIP Act, so that rights of access and privacy would be consistent throughout the Province. However, the RCMP has taken the position that it is covered by Federal access and privacy legislation.
The Committee was advised by counsel that these were matters that would likely be decided by the courts and that the only legal recourse at present was through contractual agreement.
It was also noted that there are various agreements for Indian band policing and that clarification of the application of the Act under these agreements is required.
The Committee recommended:
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.
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Application of the Act to library boards
Under the current FOIP Act, municipal library boards and some regional library systems are covered by the definition of "local government body" in section 1(1)(i)(xvi). It was suggested that the definition should be amended to reflect boards established under the Libraries Act, which was amended after the original FOIP Act was drafted.
The Committee heard that some library boards were already included under the FOIP Act, but that, because of changes to the Libraries Act, the inclusion needed to be made more explicit. The Committee unanimously agreed that clarification was required and recommended:
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.
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Definition of local government bodies
The definition of "local government body" in section 1(1)(i)(xvi) of the Act includes boards, committees, commissions, panels, agencies or corporations created or owned by municipalities, housing management bodies, etc. and all the members or officers of which are appointed or chosen by, or under the authority of, that body. It was suggested that this definition should be simplified. In a preliminary assessment undertaken by some municipalities to determine which organizations meet this definition, no occurrence was identified where a member or an officer of the body was "under the authority" of council and had not been "appointed" or "chosen by" council.
The Committee recognized the need for clarity to bodies affiliated with local government and considered various criteria for inclusion, including funding and appointment of board members by a local government body. The Committee also considered the desirability of a test for inclusion that would parallel the test for the inclusion of Provincial public bodies. It was agreed the principal need was to allow for clearer interpretation for local government bodies, and that deletion of the phrase "under the authority of" would help resolve the problem.
The Committee recommended:
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".
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Inclusion of electrical utilities controlled by a local authority
Several submissions suggested that public bodies that must compete with the private sector for business should be excluded from the coverage of the FOIP Act. The rationale was that these bodies, required by statute to compete for business, would be placed at an unfair disadvantage in the marketplace as competitors could use the Act to probe their business practices. This issue was most frequently identified concerning deregulation of the electric power industry. EPCOR and ENMAX raised concerns as they are currently included in the definition of "local government body".
Consideration was given to allowing the utilities to be included but to make exceptions for certain business records, however, the Committee thought this would be very complex. It was felt that other municipal corporations would be protected by existing provisions in the Act. Ultimately, the majority decided in favour of a specific exclusion for the two named utilities on the basis of the special circumstances in which they are operating their businesses, in a newly deregulated environment.
The Committee recommended:
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.
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Criteria for the inclusion of agencies, boards and commissions
Currently, the Government of Alberta, by policy, uses three basic criteria when determining whether an agency, board or commission should be included as a Provincial public body and therefore listed in the FOIP Regulation. These criteria, which reflect the general philosophy of the Financial Administration Act and the Ministry reporting requirements of the Government Accountability Act, are partly derived from the criteria in section 88 of the Act for removing an organization from the scope of the Act and are as follows:
· the Government appoints a majority of members to the body or to the governing body of the organization; or
· the body is wholly financed through the General Revenue Fund; or
· the Government holds a controlling interest in the share capital of the organization.
The Committee considered whether the criteria for the inclusion of agencies, boards and commissions should be in the Act, in the regulation, or be part of policy. It was generally agreed that the criteria should not be simply a matter of policy. It was noted that while making regulations are less open to public debate than statutes, there is sometimes a need for flexibility, so the use of both the Act and the Regulation was proposed. The Committee unanimously agreed and recommended:
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.
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Authority to dispose of records of local public bodies
Section 3(e) of the Act allows for the transfer, storage or destruction of any record in accordance with an enactment of Alberta or Canada or a by-law of a local government body.
The section does not provide for the records management practices of educational or health care bodies, or local public bodies that govern by resolution or other legal instrument. Submissions indicated that this section required rewording to allow all local public bodies to establish practices through whatever legal instrument the local public body acts.
The Committee recommended:
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.
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Expansion of the Scope of the Act
The Committee considered whether other sectors should be brought under the governance of the Act. It was noted that Provincial health information legislation and Federal legislation dealing with privacy in the private sector were pending, and these would have some impact on the FOIP Act in the future. The Committee addressed a number of issues related to the expansion of the scope of the Act and made the following recommendations:
Inclusion of organizations performing statutory functions
The definition of "public body" in section 1(1)(p)(ii) of the Act includes an agency, board, commission, corporation, office or other body designated as a public body in the regulations. The criteria is that:
· the Government appoints a majority of members to the body or to the governing body of the organization; or
· the body is wholly financed through the General Revenue Fund; or
· the Government holds a controlling interest in the share capital of the organization.
The Committee considered:
a) whether the criteria should be expanded to include bodies that perform statutory functions or functions under an enactment, such as Delegated Administrative Organizations (DAOs) and;
b) whether contracts that govern bodies that perform statutory functions or functions under an enactment should include requirements related to the FOIP Act.
In its deliberations, the Committee looked at the following facts:
· While a DAO handles a statutory function on behalf of the head of a Government public body, the responsibility for the function rests with the head of the Government body as set out in the statute, therefore, the head would maintain responsibility and control.
· There are different methods under which the duties and obligations of each DAO are set out, such as in regulations or agreements or contracts. The extent to which the Government will maintain control is specified within these documents.
· Records are subject to the FOIP Act if they are in the custody and control of a public body. When the Government body has control as described above, then the records are subject to the Act.
· Policy and guidelines for public bodies have been published to assist them in identifying conditions that should be in place to enable Government bodies to meet their obligations under the FOIP Act.
It was noted that certain DAOs had been created specifically for the purpose of performing a statutory function, while in other cases the performance of a statutory function under a contract was a relatively minor part of the work of an existing organization. In such cases, the entire operations of an organization should not be brought under the Act. It was felt that where statutory functions were the primary purpose of the organization, the organization should be covered. The Committee agreed and recommended:
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.
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Access and privacy obligations of organizations under contract to a public body
A question was raised as to whether any records of organizations delegated to perform statutory functions under contract to public bodies were subject to the Act. Guidelines describing the implications of the FOIP Act to contract managers have been published and such records are covered by the provisions of the Act relating to "custody and control", however, the Committee unanimously agreed that this should be made more explicit. The Committee recommended:
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.
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Inclusion of self-governing professions
When Alberta's Freedom of Information and Protection of Privacy Act was first introduced, the original all-party Panel recommended that the issue of including self-governing professions should be considered during the 3-year review of the legislation. Alberta currently has 51 self-governing professional organizations, four of which are currently subject to the Act, because the Government appoints a majority of those members. There have been no requests for records of the professional organizations already covered by the Act.
Of the submissions received by the Committee, those that supported inclusion of self-governing bodies under the FOIP Act reasoned that these bodies were performing a public regulatory function and that access and privacy protection provisions of the Act should apply to them. Those opposing inclusion felt that the bodies were not funded from taxpayer dollars and therefore should not be accountable in the same way as Government bodies. It was further noted that provisions for accountability were already in place, but if necessary, requirements of the profession should be included in their governing legislation.
The Committee considered a number of factors including the practice in other jurisdictions. Although other provinces have considered including self-governing professional organizations under their access and privacy legislation, only British Columbia has done so.
It was generally agreed that professions that were subject to legislation ought to be accountable in some way to the public on matters of access and privacy. Moreover, some professions exert significant influence in public affairs, so it is in the public interest that information about their decision-making processes be available to the public. It was agreed however, that accountability did not necessarily require inclusion under the FOIP Act.
It was thought that disciplinary hearings should be conducted openly and with public participation, and also that there should be a right to independent review of decisions made by self-governing professions.
It was felt that, while the language in rules of self-governing professions might not be that used in the FOIP legislation, the same principles were generally being observed. It was agreed that if inclusion under the FOIP Act was contemplated, it should be made in consultation with the bodies concerned. The Committee was concerned, though, that its openness to alternatives at this time should not encourage self-governing professions to be complacent about the issues.
Ultimately, the Committee unanimously agreed to recommend that self-governing professions be allowed time to develop measures to provide access and privacy protection and, if they failed to do so, that the matter be reviewed and, if necessary, consideration be given to legislating compliance with FOIP principles. The Committee recommended:
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.
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Inclusion of the private sector
The Committee considered whether any recommendation should be made pertaining to the inclusion of the private sector in the scope of the FOIP Act. Several submissions were received, commenting both in favour of including the private sector in the scope of the legislation and against.
On October 1, 1998, the Federal Government introduced Bill C-54, the Personal Information Protection and Electronic Documents Act, which introduces measures to protect personal information in the private sector.
The privacy protection measures of the Bill, which are based on the Canadian Standards Association's Model Code for Protection of Personal Information, address the way private sector entities collect, use and disclose the personal information, the requirement to seek the consent of the individual, the right of individuals to access information about themselves and the right to have information corrected. This appears to follow an international trend in this direction.
If Royal Assent is given, protection of personal information provisions will apply to the federally regulated private sector within one year (e.g., banks, telecommunications and transportation companies) and to organizations regulated by the provinces that disclose information interprovincially or internationally where the information itself is the subject of the trade. Three years after coming into force, the provisions would apply to all personal information collected, used or disclosed in the course of commercial activities by other organizations in the Province (e.g., industries, businesses, professions, trade unions, associations, etc.) unless the Province has enacted substantially similar legislation.
The Committee considered how it ought to take into account the proposed Federal legislation. Some suggested that consideration be given to the Bill during the present review. However, the Committee did not agree on the urgency or extent of involvement that Alberta should assume at this time and suggested that it would be preferable to resolve all the issues relating to the proposed health information legislation before further consideration of the broader private sector. The Committee also recognized that consideration of the Federal initiative was already under way in Government.
The Committee recommended:
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.
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Exclusions from the Act
Section 4 of the Act specifies those classes of records and information to which the Act does not apply. The Committee considered whether the specified exclusions in section 4 were appropriate and made recommendations related to the following issues:
Judicial or quasi-judicial records
Section 4(1)(b) of the Act excludes notes, communications and draft decisions of a person who is acting in a judicial or quasi-judicial capacity from the scope of the Act. It was suggested that this exclusion should be extended to individuals whose primary role is to support judicial or quasi-judicial officers and who are preparing that documentation on behalf of the officers.
The Committee unanimously agreed to expand this exclusion and recommended:
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.
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Personal information collected by the Ethics Commissioner
Section 4(1)(c.1) of the Act excludes a record that is created by or is in the custody or under the control of the Ethics Commissioner and relates to the disclosure statements of deputy ministers and other senior officers that have been deposited with the Ethics Commissioner. This allows the Ethics Commissioner to collect, use and disclose information from senior officials respecting their responsibilities under the Public Service Act. The Information and Privacy Commissioner identified a technical problem with this section in that the word "record" would not necessarily include the information gathered to create the record. Therefore he suggested changing the word "record" to "information" to ensure that the information in the custody or under the control of the Ethics Commissioner is excluded from the Freedom of Information and Protection of Privacy Act.
The Committee unanimously agreed that this amendment would provide clarification and recommended:
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.
Teaching materials and research information
Section 4(1)(e) of the Act excludes teaching materials or research information of employees of a post-secondary educational body from the FOIP Act. Some post-secondary educational institutions noted a need to clarify the meaning of this section. The reference to employees has raised questions since the "ownership" of teaching materials may not always be clear and the materials envisaged in the formulation of this provision may be owned by the institution.
The Committee considered defining more precisely the terms of the provision excluding teaching materials and research information. It was agreed that the protection of intellectual property was best served by refraining from restrictive definitions. The Committee also agreed that an extension of this provision to include the institution itself would serve the intellectual property interest in cases where ownership was not clear. It was felt that legal rights with regard to subsequent use of records released as a result of a FOIP request for copyright material were unclear, but that the proposed recommendation would resolve the problem for that type of material.
The Committee also considered extending this exclusion to schools. It was acknowledged that research was an integral part of the work of post-secondary institutions, and it was noted that there were some larger school boards that regarded research as a significant aspect of their delivery of education services. The Committee recognized, however, that parents take a more active role in grade 1 to 12 education and might reasonably expect to be able to obtain access to material being taught to their children and further, that educational materials in schools are provided in part by Alberta Education as curricular and teacher resource materials. Teachers may create lesson plans from these materials, but the materials are not owned by the employee. It was noted that other exceptions to disclosure already allow school boards to refuse to release teaching materials where the school board has an economic interest in the materials. It was agreed not to extend this exclusion to schools.
The Committee recommended:
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.
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Exclusion of public registries
The Committee considered whether specific recommendations should be made relating to public registries. It was noted that one of the reasons why records in registries were excluded from the Act was to maintain the public nature of registries, which is essential for both public, legal and business functions. Officials from Alberta Municipal Affairs briefed the Committee on the status of the Municipal Affairs review which followed the recent audit of the Alberta Motor Vehicle Registry by the Office of the Information and Privacy Commissioner and the Office of the Auditor General.
The Committee reviewed the audit and the recommendations of PricewaterhouseCoopers. They also reviewed submissions from the public and stakeholders, including parking lot operators, private investigators, lawyers, insurance companies, adoption search agencies, financial institutions and registries.
It was felt that it was in the public interest to allow access to general information held by registries, and there was support from the public for allowing disclosure of a limited amount of information to persons having legitimate interests. It was suggested that historical practices of disclosing information for the purpose of protecting third-party interests contributed to the uniqueness of registries and weighed in favour of their continued exclusion from the Act. At the same time, it was agreed that information released should be limited to what was needed for the purpose and should not include non-relevant personal information. There was concern that even relatively non-sensitive information could be obtained for the wrong purposes and the Committee agreed that there should be mechanisms to protect vulnerable individuals. Also discussed were issues about how access and privacy issues might be addressed through legislation other than the FOIP Act. Ultimately, the Committee agreed to recommend continued exclusion from the FOIP Act, and to refrain from commenting on the question of the appropriate balance between competing interests.
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).
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Personal or constituency records of local elected officials
Section 4(1)(i) of the Act excludes records of an elected official of a local public body, that are not in the custody or control of the local public body. It was suggested that it would be fair to extend similar privileges to local elected officials as are afforded to MLAs. It was felt that clarification may be needed to define records excluded and those included in the Act. The Committee agreed and recommended:
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.
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Records of appointed members of local public bodies
The Committee considered whether there should be a distinction between elected and appointed members of local public bodies since it might be perceived that appointed members had no direct obligations to constituents. On the other hand, it was noted that the board of a regional health authority and a school board were similar with respect to responsibility, budget and operation, and agreed that they should be treated similarly under the Act. The Committee recommended:
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.
The Committee considered that there might be more than one governing body within post-secondary educational institutions.
While the Board of Governors in a university or college has final authority for decision-making under the Universities Act and under the Colleges Act, General Faculties Councils in universities (and to a lesser extent Academic Councils in colleges) have traditionally had a significant degree of autonomy in making determinations in academic affairs. The Committee was persuaded that these Councils should be recognized as governing bodies for the purpose of this provision. It did not see justification for extending the same recognition to a University Senate, an advisory body representing the public interest in higher education.
The Committee agreed and recommended:
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.
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Exclusion of medical, critical incident and/or quality assurance records
The health care sector raised concerns that quality assurance programs in hospitals will be jeopardized unless there is protection from disclosure of confidential quality assurance information that is currently protected under the Alberta Evidence Act.
The Committee considered the fact that historically, information generated from quality assurance activities in the medical community has not been accessible. This information is also not compellable as evidence in a legal proceeding under section 9 of the Alberta Evidence Act.
The Committee agreed that for the existing quality assurance process to work, there needed to be some assurance that the records would remain confidential. Considering the historical practice and the pending Health Information Act, the Committee agreed that a new clause should be added to section 4 of the Act to exclude medical, critical incident and/or quality assurance records in the medical community from the scope of the FOIP Act.
They also considered whether this exclusion for critical incident and quality assurance records would be necessary for schools and post-secondary educational bodies. However, only in the health care sector are such records not compellable in a legal proceeding under section 9 of the Alberta Evidence Act. Therefore, the Committee agreed that the exception should apply only to records of physicians in the health care sector, and recommended:
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.
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Paramountcy (Relationship to Other Acts)
Section 5 describes the relationship between the FOIP Act and other Acts. The Committee considered whether the current paramountcy provisions were appropriate and made the following recommendations:
Establishment of paramountcy
When the FOIP Act came into force in 1995, it had been anticipated that some of its provisions would, at first, be inconsistent with existing legislation. For the first two years of operation, information could not be disclosed under the FOIP Act if the disclosure was restricted by another Act. After two years, section 5(2) came into force, stating that wherever there is inconsistency with another enactment, the FOIP Act prevails unless there is an express provision to the contrary in the other Act or in the FOIP Regulation.
The question of paramountcy was considered in 1997 when section 5(2) was due to come into force. As a result of that process, twenty Acts relating to health information, and the regulations under them, as well as specific sections of twelve other Acts and ten regulations, were allowed to prevail over the FOIP Act. Paramountcy was established in the FOIP Regulation in 1997 to allow time to amend the other statutes. Several paramountcy amendments have been made in statutes and in the FOIP Regulation since 1997.
The Committee agreed that it was preferable for paramountcy to be defined in statute, but that the use of the Regulation may be reasonable when paramountcy is first established, or when flexibility is essential. The Committee decided that the existing provision should be retained, but agreed that establishing paramountcy by regulation should be considered a temporary measure wherever possible, and as a mechanism to deal with time-sensitive issues. The Committee recommended:
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.
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Extension of current paramountcy provisions
When paramountcy was considered in 1997, the paramountcy provisions of several Acts were given sunset expiry dates of October 1, 1999.
It was proposed that extensions be granted so that the departments responsible could properly table amendments, but that the amendments nevertheless be brought forward as soon as possible. While there was some disagreement about the extensions, the majority of the Committee felt they were appropriate and recommended:
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.
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Obtaining Access to Records
Sections 6 to 14 of the Act describe the processes for obtaining access to records. Anyone may request access to records by submitting a written request to the public body that has custody or control of it. The applicant can complete a form or write a letter requesting the record, and the public body has a duty to assist the applicant in accessing the records.
The process established in the Act specifies how a public body must respond to an applicant. For example, a request must be responded to within 30 calendar days unless the time limit has been extended or the request is transferred to a more appropriate public body for response. An applicant must be told whether or not access will be given and when and how it will be given. If access is refused, the applicant must be given reasons for the refusal as well as the name and address of a person who can answer questions about the refusal.
The Committee determined that generally the existing time frames within which to respond to access requests and the duty of public bodies to assist applicants remained appropriate. These sections of the Act strike a proper balance in ensuring applicants receive information quickly, while not unduly burdening the public body.
Declaring a request abandoned
A concern was raised about the process that should be followed when an applicant does not pay the required fees. The Act states that an applicant must pay the required fees before receiving access to the information requested. Section 10(3) of the FOIP Regulation states that an initial fee must be paid before the public body starts to process an access request. Section 13(1) of the Regulation states that once a fee estimate is sent to an applicant, the processing of the request stops until a portion of the estimate is paid.
The Act is silent regarding the process if fees are not paid. It was suggested that if the public body does not receive the required fee within a reasonable time, it should be permitted to abandon the request after giving the applicant notice of its intention to do so. If the applicant makes the required payment, processing of the request would continue.
The Committee unanimously accepted that a mechanism was needed to allow a request to be declared abandoned and recommended:
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.
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Concurrent requests as grounds for a time extension
Section 13 of the Act allows the head of a public body to extend the time for responding to a request from 30 days to up to 60 days, or with the Commissioner's permission, for a longer period of time in four specific circumstances:
· if the applicant does not give enough detail to enable the public body to identify a requested record,
· if a large number of records is requested or must be searched and responding within the time frame would unreasonably interfere with the operations of the public body,
· if more time is needed to consult with a third party or another public body before deciding whether or not to grant access to a record, and
· if a third party asks for a review under section 62(2) or 73(3) of the Act.
There was concern that the reasons permitted for time extensions do not adequately cover all situations that occur.
Although there was not consensus about the impact of the submission of multiple requests with the intent of taking advantage of the fee structures, or the effect of the time required to process the requests, or that multiple requests for the same records should interfere with the response time, there was recognition of potential problems. The Committee accepted that public bodies could be placed under strain due to concurrent requests, but not that there should be automatic extensions. The Committee agreed that new grounds should be added to those which the Commissioner could take into consideration when determining whether to approve an extension, and recommended:
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.
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Exceptions to Disclosure
Sections 15 to 28 of the Act provide for exceptions to the general rule of public access to information held by a public body. It is recognized that absolute openness to all records of a public body would impair the ability of the public body to discharge its responsibilities effectively. This is reflected in the exceptions to disclosure.
Simplification of the exception for disclosure harmful to personal privacy
It was suggested in several submissions that section 16 of the Act should be simplified in order to make it easier to understand and apply.
Section 16(1) states that a head of a public body must refuse to disclose personal information if the disclosure would be an unreasonable invasion of a third party's personal privacy. Section 16(2) outlines when there is an unreasonable invasion of personal privacy. Section 16(3) provides criteria which should be used in determining whether an unreasonable invasion of personal privacy has occurred and section 16(4) states when disclosure of personal information will not be considered an unreasonable invasion of personal privacy.
The Committee felt that section 16 may not be organized in the most logical way for those who were required to apply it. Arguments were heard regarding the amount of detail that should be included and the issue of balancing flexibility with certainty. A practical approach appeared to be rearranging the subsections to put section 16(4) first. However, the Committee took the position that it consistently adopted throughout the review, that it was concerned with principles and not with the details of drafting legislation. It unanimously agreed that simplification of the legislation was desirable, and that a guide to its interpretation prepared by Alberta Labour and the Office of the Information and Privacy Commissioner would be helpful. The Committee recommended:
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.
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Disclosure of law enforcement information harmful to personal privacy
Section 16(2)(b) of the Act states 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 an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation.
The current wording in section 16(2)(b) does not conform to the proposed new definition of law enforcement in recommendation 3.
The Committee agreed that this section should be redrafted to clarify that it applies to the proposed new definition of law enforcement and recommended:
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.
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Disclosure of personal information provided by that applicant about a third party
Section 16(3) of the Act lists considerations to be used when determining whether disclosure of personal information is an unreasonable invasion of privacy but this list is not exhaustive. There appeared to be an anomaly in the section whereby a family member who might have provided information initially could later be denied access to it, if it was requested under the FOIP Act, because it is personal information about another individual. This could arise when parents have provided information for their children and that information is not available to the parents after the children become adults at age 16. This makes the application of the Act seem overly legalistic and impractical.
The Committee agreed that it would be helpful if a public body could take into consideration the source of information when determining whether disclosure of that information would be an unreasonable invasion of privacy, and recommended:
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.
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Disclosure of information relating to licences, permits and discretionary benefits
Section 16(4)(g) of the Act states that it is not an unreasonable invasion of a third party's personal privacy if the disclosure reveals details of a licence, permit or other discretionary benefit granted to the third party by a public body.
Currently, this provision may permit the disclosure of a wide range of personal information about the individual who has been granted a licence, permit or discretionary benefit. This is inconsistent with the intent of the rest of the provision, which establishes protection for individual privacy, except in limited circumstances where wider disclosure of personal information may serve the public interest.
The accountability being established in section 16(4)(g) is the right of the public to know the identity of the person who has a licence or permit or is in receipt of a discretionary benefit plus the nature of the licence, permit or discretionary benefit. Concern was expressed that it should not extend to disclosing a wide range of personal information about the individual involved.
The Committee discussed restricting the amount of personal information that should be available regarding licences and permits, as well as the fact that restricting information might limit the ability to identify the holders, which may be in the public interest. Various elements of information that are included in records relating to licences and permits were discussed.
It was also noted that licences and permits related to real property could have an impact on adjacent property owners, and therefore related information should generally be made available, as has been historical practice.
Eventually the Committee decided that although there may be some difficulty in distinguishing between commercial and personal licences or permits, such a distinction would be the most logical way to determine what would be appropriate information to disclose, and recommended:
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.
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Contracts of provincial and local public bodies
Section 18 of the Act allows the head of a public body discretion to refuse to disclose personal information that is evaluative or opinion material compiled solely for the purpose of determining the applicant's suitability, eligibility or qualifications for employment or for the awarding of Government contracts or other benefits when the information is provided, explicitly or implicitly, in confidence.
It was noted that the current wording restricts the application of this section only to "Government" contracts, which was not likely its intent. The Committee concurred that this section should also apply to contracts of local public bodies and unanimously agreed to recommend:
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.
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Information identifying participants in a formal evaluation of an employee
A number of post-secondary educational institutions use a "360 degree" review process to evaluate some employees. This is a process whereby peers, subordinates and clients provide input to evaluate the performance of the employee, and in order to ensure frank feedback, anonymity should be assured. However, the individual should receive a summary of the feedback to allow them to learn and develop from the process.
Similar practices are also utilized by some Ministries and by some municipalities.
The Committee considered whether these practices should be allowed to continue. It established at the outset that references from supervisors should be made available to the employee. It further noted that instructor evaluations completed by students were normally made available in aggregate form only, for the purpose of assisting students in making informed course choices. The Committee wished to differentiate clearly between aggregate evaluations of courses intended for use by students and individual evaluations intended for use in a formal performance appraisal process. The Committee then considered the process of peer review as it related to references by subject experts outside the employer institution, and recommended:
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.
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Exception to disclosure for criminal intelligence records
Section 19(1)(a) of the Act allows the head of a public body discretion to refuse to disclose information to an applicant if the disclosure could reasonably be expected to harm a law enforcement matter. Concerns with this section related to criminal intelligence information and information regarding ongoing or unsolved investigations were raised.
Criminal intelligence information has great law enforcement value and, in order for it to be effective, its content cannot be compromised or its existence revealed. The need for its protection has been recognized by other jurisdictions.
It was noted that the exception for law enforcement activities was already very broad and that it had been written to allow law enforcement activities to proceed unencumbered. The present exception for criminal intelligence operations is subject to a harms test and, because criminal intelligence is not generally directed towards a specific law enforcement matter, the requirement that there be proof of direct harm is inherently problematic. Gang intelligence is an example of an area where it might be difficult to show a sufficiently direct harm to enable police services to withhold information. The Committee considered the way that this matter had been dealt with in British Columbia legislation and found that the wording of the provision seemed to provide a balanced approach to the need to protect criminal intelligence and the need to limit this power. The Committee unanimously recommended:
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.
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Exception for ongoing or unsolved police investigations
It was noted that information pertaining to ongoing investigations is protected under the present definition of law enforcement, which includes "investigations that lead or could lead to a penalty or sanction", and also under the provision protecting personal information that is identifiable as part of an ongoing investigation into a possible violation of law, but there was a question of clarity raised. The Committee reviewed legislation on this matter in other jurisdictions and noted that there was a harms test for non-disclosure of records relating to ongoing or unsolved investigations. The Committee agreed to recommend that subject to a harms test:
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.
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Inclusion of recognized Aboriginal organizations in intergovernmental relations
Section 20 of the Act allows the head of a public body the discretion to refuse to disclose information to an applicant if the disclosure could reasonably be expected to harm relations between the Government of Alberta or its agencies and any of the following or their agencies:
· the Government of Canada or a province or territory of Canada,
· a local government body,
· the government of a foreign state, or
· an international organization of states.
It was felt that there is a need to recognize Aboriginal organizations exercising governmental functions in the provision.
The Committee unanimously agreed that First Nations with formal legal status should be covered by the provision for the protection of intergovernmental relations. It was noted that the intent was to recognize the status of Aboriginal organizations performing formal governmental functions. The Committee recommended:
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.
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Exception for local public body confidences
Section 22 of the Act permits a local public body to refuse to disclose information if the disclosure could reasonably be expected to reveal:
· draft resolutions, by-laws and other instruments by which a local public body acts, as well as
· the substance of deliberations of in camera meetings of elected officials, a governing body or its committees which are authorized by an Act or regulation under this Act.
This mandatory exception to disclosure does not apply to draft by-laws or other instruments that have been the subject of a public meeting or information that has been in existence for 15 years or more.
The Committee noted that a number of other exceptions in the Act would also protect sensitive information. It was suggested that the time frame of 15 years was too long and should be reduced.
It was noted that Cabinet and Treasury Board confidences had been an issue of debate in 1993. It was concluded at the time that 15 years was reasonable given that it was among the shortest in Canada. It was agreed to maintain the 15-year time period for Cabinet and Treasury Board confidences.
In the context of local public body confidences, it was argued that a 15-year blanket exemption from disclosure was disproportionate to the scope of decision-making, and that there were other exceptions in the Act for the kind of information that a local public body might wish to keep confidential.
Although originally the Committee suggested a 5-year time frame, it subsequently felt that 10 years would be more appropriate, and recommended:
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.
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Exception for agendas and minutes of meetings of public bodies
Currently, section 23(1)(f) of the Act permits the head of a public body discretion to refuse to disclose information if it could reasonably be expected to reveal the contents of agendas or minutes of meetings of an agency, board, commission, corporation, office or other body that is a public body.
It was suggested that this section should only apply to the governing body or to subcommittees of the governing body included in the FOIP Regulation, and that it not apply to any or all groups or meetings that are conducted within public bodies. The Committee unanimously agreed and recommended:
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.
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Exception for incomplete formal research and audit reports
A request was made that section 23 of the Act be amended to allow the head of a public body the discretion to refuse to disclose draft research, audit and similar reports until they are completed or abandoned. It was suggested that releasing unfinished documents may result in improper or misleading material being circulated.
There was agreement with the concept, but concern that providing an exception should not provide an opportunity to hide findings or conclusions that were unpalatable to a public body. It was agreed to recommend a discretionary exception with a time limit of 3 years. The Committee recommended:
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.
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Protection for priority of publication of formal research
Section 24(1)(d) of the Act allows public bodies the discretion to refuse to disclose information that could reasonably be expected to harm scientific or technical information obtained through research by an employee of a public body, or deprive the employee or public body of priority of publication.
It was suggested that there was a need to broaden the wording to clarify that social science and humanities research were also included. This was considered reasonable, especially in view of the impending extension of the Act to post-secondary educational institutions. The Committee unanimously recommended:
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.
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Including standardized tests in exception for testing procedures, tests and audits
Section 25 of the Act allows the head of a public body discretion to refuse to disclose information relating to testing or audit procedures and details of specific tests or audits to be conducted, in situations where disclosure can reasonably be expected to prejudice their use or results.
It was suggested that this section should be clarified to ensure that intelligence tests used in schools are included in the exception.
Although the wording, "testing procedures, tests and audits" should already cover standardized tests, there was a desire to avoid a narrow definition of "tests," so it was unanimously agreed to provide the desired clarification. The Committee recommended:
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.
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Legal privilege for services provided by the Minister of Justice and Attorney General
Section 26(1) of the Act allows the head of a public body the discretion to refuse to disclose information prepared by or for, or in correspondence between, an agent or lawyer of the Minister of Justice and Attorney General and any other person, involving the provision of advice or other services.
As currently worded, the section does not recognize that the Minister of Justice and Attorney General as an individual, may receive or give legal advice, and it was proposed that the provision should be clarified.
While the Minister of Justice could be distinguished from other counsel in the Department, in that he or she was a politician holding a unique position, it was anomalous that a member of the Minister's staff could rely on legal privilege but that the Minister could not. The Committee agreed with the proposal and recommended:
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.
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Rights of Third Parties
When a request is made that may involve information about a third party, other than an applicant, the head of a public body is required to notify the third party and provide the third party with a copy of the record if the head is considering giving access to the information. Within 20 days the third party must consent to the disclosure or explain why the disclosure should not be made. The applicant must also be advised that third party interests may be affected.
The Committee determined that an appropriate balance exists between the interests of third parties and the rights of applicants, but recommended one change related to time frames.
Time extensions for processing requests
There are occasions when public bodies are required to seek approval from the Commissioner to extend the time allowed for responding to a request for reasons that make the extension virtually automatic. This typically occurs when third party consultation is necessary and a 20-day time period is required, but the need for consultation may not have been identified early enough to complete the process within the initial time frame. It was unanimously agreed that in such circumstances public bodies should be allowed to extend the time period necessary for third party consultation, without having to seek approval from the Commissioner. The Committee recommended:
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.
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Protection of Privacy
Part 2 of the Act contains rules for the collection, use and disclosure of personal information. They are based on the fair information practices established by the Organization for Economic Cooperation and Development (OECD), which are generally used in similar legislation across Canada.
Authority for collection of personal information
Section 32 of the Act states that personal information cannot be collected by a public body from an individual unless it is expressly authorized by an Act or regulation, it relates to law enforcement, or it is necessary for an operating program or activity of the public body.
The individual, except in defined cases, must be told the purpose of the collection, the specific legal authority for the collection and who can answer questions about the collection.
Collection authority for personal information is defined in section 32, as "by or under an Act of Alberta or Canada". Under present policy this has been interpreted to include a regulation pursuant to a statute, however the drafting is not clear. This has caused confusion and a recommendation was made that section 32(a) should be amended by substituting the phrase "by or under an Act" with "an enactment" to clarify that a public body may collect personal information if it is authorized by an Act or a regulation.
There was some disagreement about what was the most appropriate authority, and arguments relating to transparency of process, the need for flexibility, and historical practice were made.
The Committee noted that, in many cases, the Government was, on the advice of counsel, already collecting personal information under the authority of a regulation. After considerable deliberation, the Committee agreed to recommend:
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.
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Collection of personal information in health and safety emergencies
Section 33(1) of the Act specifically sets out the conditions under which collection of personal information may take place other than from the individual the information is about. Personal information must be collected directly from the individual except in circumstances where the individual has consented to indirect collection, another method of collection is authorized under an Act, or it is collected for the purposes of law enforcement.
It was noted that no provision existed to indirectly collect information in health and safety emergencies. This could be important where the individual may be unconscious or otherwise unable to provide the information directly.
While the expanded condition was supported, it was observed that the wording was critical, so that any amendment would not result in too wide discretion in collection of personal information. The Committee noted that its role was to recommend principles to guide legislative counsel in drafting amending legislation and not to dictate specific wording. It agreed to the principle of allowing indirect collection of personal information in health and safety emergencies, and recommended:
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.
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Collection of personal information to determine suitability for an honour or award
In similar legislation in other provinces there is an ability to indirectly collect personal information for the evaluation of candidates for honours or awards.
The Committee agreed that this was a desirable practice and recommended:
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.
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Collection of personal information for the purpose of fund-raising
Many organizations in Alberta, including charities, hospitals, universities and colleges have fund-raising programs, targeted toward current and former clients, as well as other individuals and businesses. These organizations may compile donor profiles to help direct their activity in the most effective way. Post-secondary educational institutions, in particular, expressed a need to be able to continue this practice, which is generally accepted in the fund-raising community.
A concern was raised that the indirect collection of personal information for any purpose without the individual's consent or knowledge, even for a good purpose, was not without risk. On the other hand, there was a pragmatic view that fund-raising was a necessary activity for public institutions such as universities and hospitals and had to be protected.
While there were reservations about possible abuses if an amendment was made, it was felt that the best solution would be to allow the practice and to set some limits within the Act.
The Committee agreed that indirect collection of personal information from secondhand or surveillance sources should not be permitted, however, personal information derived from published or other public sources is acceptable for the purposes of fund-raising, and recommended:
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.
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Exchange of employment references between public bodies
Section 33(1)(j) of the Act provides for the indirect collection of personal information by a public body where the information is collected for the purpose of managing or administering personnel of the Government of Alberta or a public body, and section 38(1)(v) of the Act provides for the disclosure of personal information for these purposes.
It was noted that the Government of Alberta has always been considered as being one employer, even though employees could be working in different Ministries within the Government. There were differences of opinion however, as to whether the present Act allowed for exchange of information among other public bodies for this purpose, without the consent of the employee.
It was the opinion of the Committee that the Act should not permit the collection and disclosure of employment references between any two public bodies without consent of the employee, but this type of collection and disclosure within the Government of Alberta or within a local public body should be acceptable.
The Committee recommended:
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.
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Collection of personal information that will likely be inaccurate
Section 33(3) of the Act indicates that if the head of the public body is "of the opinion" that collecting information directly from an individual could render that information inaccurate, it may be collected indirectly.
There was concern that stronger wording than being "of the opinion" was required, and after considering several options, the Committee recommended:
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.
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Security of personal information, data matching, data sharing and data linkage
Section 36 of the Act requires public bodies to ensure that reasonable security arrangements are maintained for personal information in their possession. These arrangements are currently outlined in policy.
It was generally agreed that legislation was the most appropriate place to set out protection principles, but at the same time, because of rapid changes in technology, it is often most practical to address technical matters, particularly in relation to data security, through the more flexible vehicle of regulation. Doing so by policy was not considered adequate.
The Committee recommended:
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.
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Destruction of personal information before one year
Section 34(b) of the Act states that if an individual's personal information will be used by a public body to make a decision that directly affects the individual, the public body must retain the personal information for at least one year after using it so that the individual has a reasonable opportunity to obtain access to it.
The Committee was advised that there are instances when an individual and a public body may agree that personal information about the individual should be destroyed prior to one year.
It was unanimously agreed that in some cases the statutory retention period for personal information could be reduced and recommended:
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.
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Transfer of requests for correction to the body that originally created the record
It is a fundamental principle that an individual has a right of access to his or her own personal information, subject to very narrow exceptions, and to request a correction of information that the individual believes to be inaccurate.
Section 35 of the Act requires the public body to either make the correction or at least make note of the request for the correction on the person's file. In either case the public body must notify the individual concerned within 30 days of the action taken.
It was recommended and unanimously agreed that a public body receiving a request for correction of information in a record created by another public body, should be able to practicality, and consistent with the provision in the Act for the transfer of requests for access to information to the public body that had created the records. The Committee recommended:
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.
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Technical amendment to delete the term "compiled"
Section 37 of the Act prescribes how a public body may use personal information it collects. Sections 38 and 39 of the Act outline how personal information may be used or disclosed.
Sections 37(a), 38(1)(b) and 39 of the Act state that a public body may use and disclose personal information only for the purpose for which the information was "collected or compiled". It was suggested that the term "compiled" should be removed from these phrases as it is redundant.
In spite of a differing opinion that the term "compiled" had a broader meaning than "collect" and should therefore be retained, the Committee accepted that deleting the term "compiled" would clarify the concepts of collection, use and disclosure in the Act, and unanimously agreed to recommend:
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.
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Disclosure of personal information without a written FOIP request
Section 38(1)(a) of the Act permits a public body to disclose personal information in accordance with Part 1 of the Act. Personal information may be released under section 16(4), where it would not be an unreasonable invasion of personal privacy, and no other provision prohibits the release.
It was noted that the general interpretation may require a written formal process. Numerous examples were raised suggesting that some personal information could be disclosed without a formal FOIP request, for example, that schools should be allowed to release the names of winners of sporting events or of the recipients of awards to community newspapers. Some disagreed suggesting that it was contrary to the purpose of the Act to allow disclosure without statutory authorization. The purpose of an amendment would be to allow public bodies to release innocuous information, without requiring a formal process that could appear to the public to be unnecessarily bureaucratic.
As a remedy for the concern that the amendment could reduce the accountability of public bodies, it was recommended that internal policy for documenting disclosures of this nature be established.
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.
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Disclosure of personal information relating to observable circumstances, situations or occurrences
As noted above, section 38 of the Act provides for situations where a public body may disclose personal information without an access request.
The Committee noted that the restrictions to disclosure of personal information, even of some publicly observable situations or occurrences, has resulted in decisions not to release information that previously was widely available.
The relationship between schools and other public institutions and their communities was raised in several submissions and examples relating to sporting events, student enrolment, class pictures, and yearbooks were presented. The Committee agreed that some relaxation was necessary and although the suggestion is to amend section 38, it is conceivable that in actual redrafting of the Act, a rebalancing of sections 16 and 38 may be necessary to apply the practical intent of this recommendation.
The Committee recommended:
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.
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Correcting a reference in section 39 of the Act
The introductory clause in section 39 of the Act, which defines consistent use, refers to section 38(b) of the Act in error. There is no section 38(b) and it should refer to section 38(1)(b).
The Committee unanimously agreed to recommend:
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).
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Disclosure of personal information by one public body to another
Section 38(1)(g) of the Act permits disclosure of personal information to officials within the same public body where a person has the need to know the information in order to perform his or her duties. Joint delivery of programs and services is becoming increasingly more important for efficiency in departments, agencies and local public bodies.
It was suggested that this provision be amended to enable public bodies to share information to administer joint programs.
Recognizing the need to restrict broad use of personal information for unrelated purposes, it was agreed that disclosure between public bodies should be permitted only for the administration of a common program. The Committee recommended:
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.
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Disclosure to determine continuing eligibility for a program
Section 38(1)(j) of the Act permits the disclosure of personal information to determine an individual's suitability or eligibility for a program or benefit. It was suggested that the intent of this section is similar to the provision in section 33(1)(g), which deals with verification.
The Committee unanimously agreed that the provision should be expanded to allow for verification of "continuing" eligibility for a program or benefit, and recommended:
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.
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Substitution of "spouse or close family relation" for "next of kin"
Section 38(1)(q) of the Act permits release of personal information in the case of medical emergencies or a death. It was suggested that the term "next of kin", presently used in the provision, may not include all persons intended.
The Committee unanimously agreed that using the phrase "spouse or close family relation" would be more appropriate, and recommended:
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.
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Use of existing alumni lists for fund-raising purposes
Historical practice in many post-secondary institutions allows for the compiling of personal information on alumni, that is used to offer alumni services as well as for fund-raising by the institution. Having been collected prior to the introduction of the FOIP Act, there is a concern that this information may not have been collected, and may not be used or disclosed, in compliance with the present terms of the Act.
It was noted that new students will be asked for consent to use such information for alumni and fund-raising purposes, but considering the volume of existing records, it would be too costly, and extremely difficult to obtain written consents from each individual on whom files presently exist.
It was generally agreed that the practice of compiling alumni files was acceptable for the purposes intended, providing that individuals could access their files for the purpose of assuring accuracy, and also request that they be purged and closed.
The Committee unanimously agreed that provision should be made to allow post-secondary educational institutions to continue to reasonably use and disclose personal information in existing alumni files for fund-raising purposes, however, where it is possible, consent should be sought from the individuals for the continued use of their information for such purposes. The Committee recommended:
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.
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Disclosure of teaching and course evaluations completed by students
Presently, a number of post-secondary educational institutions use an evaluation program which compiles information which may be disclosed to students to assist them in selecting courses. This includes students' evaluations of professors' performance.
Although not all parties endorsed the continuation of the practice, the Committee felt it had value, but that there was a need for protective measures. It would be necessary to ensure that information used was in fact valid and that any privilege granted to post-secondary educational institutions was not abused. The Committee recommended that written policy be established to ensure that the practice is carried out in a responsible manner, and that activity is reviewable by the Commissioner. The Committee recommended:
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.
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Thirty-year rule for access to archival records
Section 40 of the Act contains procedures for research access to archival records, and section 8 of the FOIP Regulation prescribes requirements for research agreements.
Archives may also disclose personal information for research purposes if the disclosure is not an unreasonable invasion of personal privacy under section 16, if the information is about someone who has been dead for 25 years or more, or the information is in a record that has been in existence for 75 years or more.
The Act does not affect access to records deposited in the Provincial Archives of Alberta or the archives of a public body that were unrestricted before the Act came into force. All other records must be dealt with under the terms of the Act.
Academic researchers, genealogists and other historical researchers are concerned with constraints that the FOIP Act puts on their professional research activities.
It was suggested that Alberta adopt practices comparable to the U.S. National Archives and the British Public Records Office whereby all records 30 or more years old that have been transferred to the Provincial Archives or the archives of a public body should be automatically open to access by researchers, except for those records dealing with:
· personal information about identifiable individuals,
· sensitive criminal or law enforcement matters the release of which might harm the justice system or records to which the Government or public body wishes to still apply legal privilege, and
· records that are restricted by other statutes, for example, the Vital Statistics Act or the Child Welfare Act.
The Committee felt that with the exceptions noted, the proposal would benefit the research community without undermining the Act's protection for personal privacy, and recommended:
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.
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Office and Powers of the Information and Privacy Commissioner
The Act provides for the appointment of an independent Information and Privacy Commissioner. The Commissioner has a broad range of powers including the power to conduct investigations, to ensure compliance, to inform the public, to engage in research, to investigate and attempt to resolve complaints, to determine appropriateness of fees and so on. The Commissioner may also give advice and recommendations on matters concerning the Act.
Frivolous and vexatious requests
Section 53 of the Act enables the head of a public body to request from the Information and Privacy Commissioner, authority to disregard requests of a repetitious or systematic nature that would interfere with the operations of the public body or abuse the right of access. Several submissions suggested a need to expand the criteria to address the issue of large numbers of requests, as well as the nature and intent of requests, where the intent is not really to obtain information but rather to use the process to tie up the operation of an office or branch for as long a period as possible.
The Committee agreed and recommended:
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.
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Powers of delegation of the Information and Privacy Commissioner
Section 59 of the Act permits the Information and Privacy Commissioner to delegate only limited powers and functions. It was suggested that administration of the legislation will become more complex as local public bodies become subject to the legislation, and more reviews and investigations must be undertaken.
Considerable administrative flexibility could be achieved if the Commissioner was allowed to delegate cases to senior staff in his office, including the ability to make orders.
The Committee unanimously agreed and recommended:
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.
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Reviews and Complaints
Time limit for a relative of a deceased person to request a review
Section 63(2) of the Act sets a 60-day time limit for requesting a review. It was suggested that a similar time limit should be allowed for a relative to request a review relating to a deceased person.
The Committee unanimously agreed and recommended:
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.
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Clarification regarding third party time limit to request a review
Most time limits to request a review from the Commissioner are listed in section 63(2) of the Act, however, the limits for a third party to request a review are listed in section 30(3) of the Act.
It was suggested that for clarity of reference, the time limit for a third party should also be included with the other time limits in section 63(2).
The Committee unanimously agreed and recommended:
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.
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Discretion to sever information in an applicant's request for review
Section 64 of the Act requires the Commissioner to give a complete copy of a request for review to the head of a public body, and to any other person who in the opinion of the Commissioner is affected by the request.
Applicants often include personal information in their request for review, not realizing that a complete copy of the request will be provided to other parties. It was suggested that provision should be made to allow the Commissioner the discretion to sever part of the request for review, if he feels it is appropriate.
The Committee unanimously agreed and recommended:
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.
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Power to refuse to conduct a review
The Act does not permit the Commissioner to refuse to conduct a review or investigate a complaint. At present, a person can force an inquiry or investigation even when the issue has been decided previously. This adds to the costs of administering the legislation and the burden on public bodies to respond to the inquiry or investigation.
It was suggested that provision be made to enable the Commissioner to refuse to hold an inquiry or conduct an investigation if the same issue has already been resolved in a previous order.
The Committee accepted that there could be occasions when another review or investigation would not advance the cause of the individual concerned or contribute to the effective administration of the Act, and unanimously recommended:
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.
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Time limits for seeking judicial review of a Commissioner's order
Section 70(1) of the Act states that within 30 days of receiving an order of the Commissioner, the head of the public body must comply with the order unless an application for judicial review is made.
After the Commissioner renders a decision, the public body, the applicant or a third party may ask for judicial review, however, there is no prescribed time period established for the process. If the Commissioner orders disclosure of records, the public body or a third party has 30 days in which to apply for judicial review, but the public body may disclose the records before that time and pre-empt the third party's time to apply for the review. On the other hand, if the Commissioner does not order disclosure of any records, an applicant or other party has up to 6 months to apply for judicial review under the Alberta Rules of Court.
The Committee unanimously accepted the recommendation that a consistent time period should be established for each party to apply for judicial review, and that if the Commissioner has ordered the public body to disclose records, the public body should not disclose them until after a third party's time limit to file for judicial review has expired. The Committee recommended:
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.
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Adjudication process when the Commissioner is unable to hear a case
Sections 71 through 76 of the Act address the situation where the Information and Privacy Commissioner may be in a conflict of interest if he undertakes a review or investigation. There is, however, some confusion about the conditions under which an adjudicator might be appointed when the Commissioner is unable to hear a case, who may request the Minister to commence the adjudication process, the process involved in confirming the Commissioner's conflict if an applicant requests the Minister to appoint an adjudicator, and the powers of the adjudicator.
The Committee discussed options for expediting the adjudication process, however it was felt this was beyond the scope of this review. The Committee agreed that clarification is required for sections 71 to 76 and recommended:
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.
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Offences and Penalties
Protection of employees from adverse employment action for properly disclosing information to an applicant
Section 77 of the Act protects an employee of a public body from adverse employment action, if the employee acting in good faith, discloses information to the Information and Privacy Commissioner, that the employee believes ought to be disclosed by the head in the public interest, or is being collected, used or disclosed in violation of the Act.
It was suggested that protection for employees should not be limited to cases where an employee discloses information in good faith to the Commissioner, but also to cases where an employee properly discloses information to an applicant. The Committee unanimously agreed and recommended:
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.
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Gaining unauthorized access to personal information
There are several offences provided for under the Act, including:
· collection, use or disclosure of personal information in violation of Part 2;
· making a false statement to or misleading or attempting to mislead the Commissioner or another person in the performance of the duties, powers or functions of the Commissioner or the other person under the Act;
· obstructing the Commissioner or another person in the performance of the duties, powers or functions of the Commissioner or the other person under the Act;
· failing to comply with an order made by the Commissioner; or
· destroying any records subject to the Act with the intent to evade a request for access to the records.
Concern was expressed that since much information today is in electronic form and there has been increased use of network technologies to communicate and manage such information, that there should be a prohibition on unauthorized tampering.
The Committee unanimously agreed to recommend:
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.
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Altering, falsifying or concealing records
Section 86(1)(e) of the Act states that a person must not wilfully destroy any records with the intent to evade a request for access to the records. The Committee unanimously agreed, that this should be expanded so that it would also be an offence to direct another person to do so, and recommended:
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.
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Fees/Fee
Waivers
Section 87 of the Act provides that fees may be required for services provided. The FOIP Regulation establishes a structure and rates.
The Committee considered the range of advice and suggestions provided in the submissions and determined that generally the current fee structure remains appropriate with the exception of the following issues.
Fees for continuing requests
Provisions for fees for a continuing request, that is, a request that continues to be processed at predetermined intervals over a period of time of up to 2 years, are established in
section 13(4) of the FOIP Regulation.
Section 13(4) of the Regulation indicates that continuing fees may be made in installment payments, but it does not provide clear guidelines as to how these fees should be collected.
At the suggestion of the Information and Privacy Commissioner, the Committee unanimously agreed to recommend:
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.
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Requests for fee waivers
Under section 87(4) of the Act, the Information and Privacy Commissioner has the power to review a fee request, and decide whether a waiver or reduction of fees is merited. The Act does not require the applicant to first approach a public body with a request to waive a fee before going to the Commissioner, which is inconsistent with the procedure elsewhere in the Act where he conducts a review after a public body makes a decision. While the Commissioner has already adopted a policy directing applicants to first approach the public body, it was felt that this process should properly be reflected in the legislation.
The Committee recommended:
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.
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General Provisions
The Committee considered the following issues related to the administration of the Act.
Delegation powers of provincial and local public bodies
Delegation of duties to other officials by the head is provided for in section 80 for public bodies and in section 89(b) for local public bodies.
There is an anomaly between the two in that section 80 permits the delegation of all powers, duties and functions of the head, except the power to delegate, while section 89(b) permits the delegation of any duty or the exercise of any function, but is silent regarding the power to delegate.
It was felt that there should be one rule for delegation and the process should be simple and uniform. The Committee determined that this could be accomplished by deleting section 89(b) since section 80 allows the head of a public body to delegate any duty, power or function except the power to delegate, and that such a delegation must be in writing and may contain any conditions or restrictions the head considers appropriate. The Committee recommended:
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.
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Directory of Records
Section 82 of the Act requires the Minister to publish a Directory of Records at intervals of 2 years or less to assist the public in identifying and locating records. Different views were expressed about the value of such a publication, compared to the cost and the ability to maintain its currency.
The Committee agreed unanimously that a
cost-benefit analysis of producing the Directory should be undertaken,
and that the matter be revisited during the next review of the legislation.
The Committee recommended:
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.
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Change of name of an agency, board or commission
Section 88(2) of the Act lists circumstances under which the Lieutenant Governor in Council may remove the name of a public body from the Act, including that the public body has been discontinued or amalgamated or has changed its name.
It was noted that this provision was intended to allow for the removal of an agency, board or commission that was no longer in existence or which had significantly changed its function, but could be interpreted to allow simply a change of name to trigger a removal. It was unanimously agreed that the Act should be amended to ensure that this situation did not occur. The Committee recommended:
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.
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Consistency of provisions between sections
Section 22(1)(b) of the Act provides an exception to disclosure of the substance of deliberations of in camera meetings if such a meeting is authorized in a Regulation under the FOIP Act or another Act. There is an anomaly between the wording in this section and the regulation making power under section 88(1)(k) of the Act.
The Committee felt that there should be consistency between the two sections and recommended:
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.
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Records management
Records and information management practices are governed by the Government Organization Act and the Records Management Regulation administered by Public Works, Supply and Services. Retention and disposition schedules for Government records are approved by the Alberta Records Management Committee (ARMC), which is comprised of senior officials from several Ministries.
Although a suggestion that records management practices be incorporated into the Act was rejected, it was agreed that records retention and disposition schedules should not be considered wholly independent of the FOIP Act.
It was generally agreed that the ARMC served the information management needs of the Province well, but that there might be a case for some form of public-interest representation and perhaps publication of approved schedules. While the Committee viewed such recommendations outside its mandate, it agreed to suggest that consideration be given by the Minister responsible for records management in the Province, to inviting representation from the Office of the Information and Privacy Commissioner on the ARMC. The Committee recommended:
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).
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Security of information processed outside the Province
It was noted that with Government outsourcing and contracting of services, as well as data storage out of province, that security may not always be guaranteed. The Chief Information Officer advised the Committee that these matters are currently under review.
While there was argument that the Act should include some guiding principles on this issue, it was felt that considerable progress had been made on the development and coordination of policy in this area and that a legislative response was premature at this stage. The Committee agreed that the Government should be urged to develop policy and guidelines relating to trans-border data flow, and recommended:
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.
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Review of the Act
This review was conducted prior to the Act coming into effect for all local public bodies. Many of the submissions received from local public bodies indicated that they did not have sufficient experience with the Act to provide considered feedback.
It was suggested that the Act should be reviewed again in three years, to allow local public bodies time to gain some experience in administering the Act, but that a review might be scheduled earlier if it was necessary to consider the Provincial impact of the proposed Federal Bill relating to privacy in the private sector. It was generally agreed that the Committee's recommendation on this matter should be flexible enough to deal with both concerns. The Committee recommended:
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.
Copyright (c) 1999
Legislative Assembly of Alberta