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

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

RECOMMENDATIONS FOR NO CHANGE

The Committee considered several issues where it was determined that no further action was required or the matter was beyond the scope of the Committee's mandate. A brief discussion of these issues is presented here. A complete discussion of all issues is contained in the Hansard transcripts of the meetings.

Inclusion of local government bodies under the FOIP Act

The FOIP Act will come into force with respect to local government bodies on October 1, 1999. Until then local government bodies will continue to rely on provisions in the Municipal Government Act (MGA). The MGA has been amended so that its principal provisions relating to access and privacy will be repealed when the FOIP Act comes into force.

Several submissions were received from representatives of local government bodies, some of whom opposed the application of the FOIP Act to local government bodies and some of whom supported it. Those that opposed the FOIP Act felt that the current provisions of the MGA provided for sufficient access to information.

The Committee noted that the FOIP Act had been constructed to include local government. It was suggested that this matter had been debated at length in 1993 and that no new reasons had been introduced that would justify changing the existing provision. The Committee unanimously agreed.

1. Local government bodies which will be governed by the FOIP Act are defined in section 1(1)(i) of the Act. The Committee considered whether local governments should be covered by the FOIP Act respecting access and privacy issues or by the Municipal Government Act, and determined they should be covered by the FOIP Act as it is presently written.

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Exception to disclosure for records of EPCOR and ENMAX

Providing exceptions for certain records was considered as an alternative to excluding EPCOR and ENMAX from the Act.

2. Since the Committee determined that EPCOR and ENMAX should not be covered by the FOIP Act, no additional changes to the legislation are required to ensure sufficient protection for the agendas and minutes of meetings of their governing boards.

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Expansion of the scope of the Act

The Committee discussed at length the criteria for inclusion of agencies, boards and commissions under the Act. It was suggested that if Cabinet or a Minister appointed a member to such a body, that might justify some level of accountability with respect to access and privacy matters and, in fact, this situation is dealt with in another recommendation. It was pointed out that imposing all the duties of the Act upon an organization by virtue of the appointment of a single member to its governing body, would likely discourage productive partnerships between Government and the private sector. The Committee voted not to expand the scope of the Act to include bodies with less than a majority of members appointed by Government.

The Committee was in favour of including bodies that perform statutory functions, but it clearly distinguished these from organizations that had formerly been affiliated with public bodies but which had been privatized. Although it was noted that the trend in access and privacy legislation may be towards including private sector organizations, the Committee considered that a move in this direction was premature. It voted against including privatized organizations.

3. In considering the criteria noted in section 1(1)(p)(ii) of the Act defining a public body, the Committee determined that the Act should not be expanded to include bodies where the Lieutenant Governor in Council or a Minister appoints only some members, nor should it be expanded to organizations that have been privatized, unless other criteria in the Act require that they are otherwise included.

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Inclusion of private schools and private colleges

The Committee considered whether private schools and/or private colleges should be included under the Act. The issue of the inclusion of private schools had already been considered by the Private Schools Funding Task Force, and although it was suggested that the present review should not be bound by the findings of another committee when it had conducted its own consultations, the previous recommendations were accepted. It had earlier been resolved that it was unnecessary to include private schools under the Act since essential information was obtained by the Minister of Education through statutory and regulatory requirements, and information thereby received is already subject to the Act. It was considered that private schools and colleges are accountable to a degree appropriate to the level of Government involvement in their operations.

4. In considering a submission to that effect, the Committee determined that the Act should not be extended to include private schools and/or private colleges.

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MLA expense records

Section 4(1)(k) of the Act excludes records created by or for the office of a Member of the Legislative Assembly, that are in the custody or control of the Legislative Assembly Office, from the Act. This includes MLA expense records in the custody of the Legislative Assembly Office. In discussing whether there should be any change to the current exclusion, the Committee noted that the Legislative Assembly Office, as a public body, is subject to the Act, but it does not apply to the Office of the Speaker or to the Office of an MLA.

The discussion for including MLA expense accounts in the Act centered around the issue of accountability. Expense records of Ministers are subject to the Act and some Ministers routinely release this information. It should be noted that a Minister's records as an MLA are not part of his or her records as a Minister.

The argument against including MLA expense records in the Act centered around the fundamental principle of parliamentary democracy. In this respect the Committee noted an earlier debate that this is not a matter of secrecy or of wishing to hide anything from the public, but of ensuring the autonomy of the Speaker and the Legislative Assembly from the administrative arm of the Government. Members of the Committee discussed at length the issue of confidentiality associated with constituency matters and agreed this should not be subjected to compromise through disclosure of expense account details.

The Committee heard that Alberta and Quebec are the only jurisdictions in Canada that do include the Legislative Assembly Office in the scope of the FOIP Act. All other jurisdictions that have addressed the issue of disclosure of MLA expenses, have done so outside of the FOIP legislation.

The Committee discussed the processes that currently exist for dealing with disclosure outside of the Act, for example, through the Ethics Commissioner's office under the Conflicts of Interest Act, both in Alberta and in other jurisdictions.

Although opinion was divided, the Committee agreed to recommend that MLA expense records remain excluded from the Act and that there should therefore be no change.

5. In considering submissions to that effect, the Committee determined that the specified exclusions in section 4 of the Act were appropriate, and that disclosure of MLA expense records should continue to be dealt with outside of the FOIP Act.

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Disclosure of personal information in accordance with another enactment

It had been suggested that there was a need for clarification regarding paramountcy and disclosure under other enactments. The paramountcy provision applies only in cases of conflict. If another enactment allows a disclosure, then under the provisions of the FOIP Act in section 38(1), there is no conflict. If the provisions of the other enactment prohibits a disclosure that is permitted under section 38(1) of the FOIP Act, there would again be no conflict, since section 38(1) is enabling, not mandatory. The Committee unanimously agreed to recommend no change.

6. In considering the relationship between the FOIP Act and other Acts, the Committee determined that section 5(2), which recognizes provisions for other enactments that prevail over the FOIP Act, and section 38(1) of the FOIP Act, which enables the disclosure of personal information if another enactment of Alberta or of Canada requires it, were appropriate and no changes to the legislation were required.

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Records in alternative formats for individuals with sensory disabilities

The Committee considered whether public bodies should be bound in the FOIP Act, as a distinct part of the duty to assist applicants, to provide individuals with sensory disabilities with information transcribed to a format to accommodate the disability.

The Committee considered what might be involved in attempting to meet the needs of individuals with sensory disabilities. It was generally thought that it would be good practice to provide records in alternative formats if this was not administratively burdensome or unreasonably expensive.

The Committee also considered the implications of Alberta human rights legislation. Opinions differed on whether it was appropriate to incorporate this in the FOIP Act or whether it was more suitably addressed through policy. It was noted that the duty to assist already outlined a general requirement. It was agreed that the details were best dealt with through policy.

7. The Committee considered whether public bodies should be bound in the FOIP Act to provide information in an alternative format to individuals with sensory disabilities as a distinct part of the duty to assist applicants (section 9). The Committee determined that policies in this regard are better dealt with outside of the FOIP Act.

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Access to records other than in paper copy

In response to the preliminary report, the Committee received a submission from the Canadian Association of Journalists reiterating its concern that people should be able to access records in the form in which they exist rather than in paper copy.

8. The Committee noted that there is nothing in the Act that prevents a public body from releasing information in a form other than paper copy, and that the fee schedule in the FOIP Regulation which provides rates for electronic, video, audio, and other media reproduction supports this.

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Disclosure of information regarding loans and loan guarantees

The Committee considered whether information about loans and loan guarantees by the Government should be excluded from section 15 of the Act, which provides an exception to disclosure of information that would be harmful to business interests of a third party.

It was noted that most of the parties affected would be individuals and small businesses participating in small loans programs and the small loans involved were not of general public interest. The Committee was provided with background information of the many programs in public bodies that deal with loans, such as the Alberta Opportunity Company, Agriculture Financial Services Corporation and the Students Finance Board.

The Committee discussed the Commissioner's rulings in this area and it was suggested that existing provisions in the Act allowed the Commissioner the flexibility to make fair decisions on a case-by-case basis. It was determined that the Act already provided for the release of financial information subject to considerations relating to confidentiality and to a harms test.

The Committee agreed that the existing legislation was satisfactory and that no change should be made.

9. In considering submissions relating to exceptions to disclosure of information in sections 15 to 28 of the Act, the Committee determined that information about loans and loan guarantees should not be excluded from section 15 (i.e., "harmful to business interests").

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Disclosure of building permit information

The Committee heard that some municipalities are currently refusing to supply information relating to building permits. While such information may be available under the provision of the FOIP Act that allows disclosure of "licences, permits and other discretionary benefits", the Safety Codes Act currently prohibits disclosure of this information. Some municipalities are however, disclosing it in anticipation of the provisions of the FOIP Act. Where this information is in the custody of Alberta Labour, it is currently disclosed. Since municipalities will become subject to the Act in October, 1999, it was unanimously agreed that no action was necessary.

10. The Committee considered a request related to the release of building permit information for commercial purposes and determined that no changes to the legislation were required.

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Disclosure of personal information presumed to be an unreasonable invasion of privacy

Section 16(2) of the Act provides a list of presumptions as to when the disclosure of personal information would be an unreasonable invasion of personal privacy.

The Committee considered whether sexual orientation ought to be added to section 16(2)(h) as a presumed unreasonable invasion of privacy.

11. The Committee determined that sexual orientation is already covered under section 16(2)(g)(i) of the Act when an individual's name appears in conjunction with other personal information about the individual, including opinions about the individual and that no change was required.

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Disclosure of personal information regarding deceased persons

The Committee considered whether there was a need to revisit section 16(4)(i) and section 38(1)(aa) of the Act regarding the restriction on access to information or disclosure of personal information about the deceased.

The Committee found that there is a provision in the Act for discretionary disclosure of personal information regarding a deceased individual to a relative, as long as the disclosure would not involve an unreasonable invasion of the deceased person's privacy. This was considered adequate and the Committee unanimously agreed that no change was required.

12. The Committee considered whether there was a need to amend section 16(4)(i) and section 38(1)(aa) of the Act regarding the restriction on access to information or disclosure of personal information about the deceased and determined that no changes were required.

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Non-disclosure of reference information relating to applications for admission to university programs

The Committee considered whether provision should be made in section 18 to allow post-secondary educational institutions the ability to withhold information compiled about an individual in relation to admission to university programs.

The Committee noted that one of the basic principles of the Act is that individuals have a right of access to personal information about themselves and it therefore seemed unfair to deny candidates for admission to university programs the right of access to references in their files. The issue was whether institutions would be able to rely on references if there were not a guarantee of confidentiality. The Committee had accepted this view in relation to an employment situation, but found it less persuasive in relation to application for admission to an educational program. It was unanimously agreed that the Act should not be amended to allow post-secondary educational institutions to withhold student references.

13. The Committee considered whether provisions should be made in section 18 of the Act to allow post-secondary educational institutions the ability to withhold reference information provided about students in relation to admission to university programs and determined that no changes were required.

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"Public interest"

Section 31 of the Act requires the head of a public body to disclose information about a risk of significant harm to the environment or to the health and safety of the public or other matters clearly in the public interest. The Committee considered whether there was a need to define the phrase "clearly in the public interest" in the Act. It was determined that fixing a definition of the phrase within the Act might be more limiting. The Committee concluded that no action was required.

14. The Committee considered the issue of whether the term "clearly in the public interest" in section 31 of the Act should be defined and determined that there is no need to define it.

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Harmonization of the FOIP Act with proposed health information legislation

The Committee considered whether it should make any recommendations related to the need to harmonize the proposed Health Information Act and the proposed Health Professions Act with the FOIP Act.

It was noted that a process had been put in place to address the issue of harmonization and suggested that it was therefore unnecessary for this Committee to make any recommendation on this matter. The Committee unanimously agreed.

15. The Committee acknowledged that amendments to the FOIP Act may be required to ensure harmonization with the proposed Health Information Act but considered the details to be outside of the scope of this review.

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Requirement to record disclosures of health information

The Committee considered whether the FOIP Act should be amended to provide for a mandatory audit trail of all non-routine disclosures of personal health information.

It was unanimously agreed that this matter was outside the scope of the present review.

16. The Committee considered whether the FOIP Act should be amended to provide for a mandatory audit trail of all non-routine disclosures of personal health information and determined that this issue should be considered in the Health Information Act process.

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Requirement that an ethics committee approve disclosure of health information for research purposes

The Committee considered whether the Act should be amended to provide for mandatory approval of an ethics committee before health information is disclosed for research purposes. It was unanimously agreed that this matter was outside the scope of the present review.

17. The Committee considered whether the FOIP Act should be amended to provide for mandatory approval by an ethics committee before health information is disclosed for research purposes and determined that this issue should be considered in the Health Information Act process.

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Disposal of the examination papers of students in post-secondary educational institutions

The Committee considered whether section 34 of the Act should be amended to allow for a shorter time frame, in other words less than a year, within which completed exams and term papers may be destroyed. It was noted that in British Columbia, if post-secondary educational institutions needed to dispose of examination papers in less than a year, they simply returned them to the students. Post-secondary educational institutions in Alberta could do the same if they needed to dispose of papers before one year. The Committee unanimously agreed to recommend no change on this matter.

18. The Committee considered whether section 34 of the Act should be amended to allow for a shorter time frame (less than one year) within which completed exams and term papers may be destroyed and determined that no changes were required.

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Disclosure of personal information in archival records

The Committee considered whether section 41 of the Act should be amended to remove the reference to section 16 and to replace this with a different test for invasion of personal privacy that specifically relates to the needs of academic or historical researchers and genealogists, as well to the nature of the records in the Archives.

The Committee heard concerns expressed on behalf of the research community that their work would be impeded by the requirement that all records be reviewed for exceptions to disclosure before being released. The Committee was sympathetic to the request for a simplification of the provisions relating to access to general information held in archives (see recommendation 60), but was reluctant to recommend establishing another test, and suggested that it was desirable that there should be only a single test for what constitutes an unreasonable invasion of personal privacy.

Other suggestions were heard, but no consensus could be reached on a solution to simplify the present process without compromising the integrity of privacy protection.

While the Committee did not specifically recommend any further amendment to the Act, it did, however, agree that further consultation with the archival community should be undertaken by the Department of Labour to seek consensus on solutions to simplify research in archives.

19. The Committee considered the provision for disclosure of personal information in archival records (section 41) and ways in which the access needs of historical researchers and genealogists could be balanced with the protection of personal privacy. After reviewing suggestions, the Committee agreed to recommend no change to the legislation at present, but to recommend that Alberta Labour consult with the archival community to seek solutions which might simplify the accessibility of archival records.

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Appointment of the Information and Privacy Commissioner

In response to several submissions, the Committee considered whether the position of the Information and Privacy Commissioner should be a full-time position. There had been similar representations in 1993. It was noted that the Commissioner's duties were now being expanded to include local public bodies as well as the proposed new health information legislation. The Committee heard that the present incumbent was satisfied with the current arrangement. It was agreed to make no recommendation to change the current terms of the appointment.

20. The Committee considered whether the position of the Information and Privacy Commissioner should be a full-time position and determined that no changes should be made in this regard.

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Rights to personal information concerning minors

The Committee discussed whether it was necessary to clarify the test applied to determine whether a minor has the ability to provide consent under the Act (section 79). It was explained that public bodies that deal with minors generally have policies regarding the rights of guardians to obtain information about minors. They also have policies regarding the power of minors, or public bodies acting on their behalf, to refuse consent to disclosure of personal information where this would be an unreasonable invasion of personal privacy. There was no evidence that this was not a satisfactory arrangement, and the Committee unanimously agreed that it should be continued.

21. The Committee discussed whether the test to determine whether a minor has the ability to provide consent under the Act (section 79) should be prescribed in the Act or in policy, and determined that this should continue to be dealt with in policy.

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Annual Report on the administration of the FOIP Act

Section 81 of the Act requires the Minister responsible for the Act to prepare an annual report on the operation of the Act. The Committee considered whether to make any recommendation related to level of detail in the Report.

The Committee did not consider it necessary to prescribe the format of the Annual Report.

22. The Committee considered whether any recommendations should be made regarding the inclusion of more detailed statistical information and other detail on the workings of the Act in the Annual Report as required in section 81 of the Act, and determined that no changes were required.

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Definition of "personal information bank"

Section 82 of the Act requires listings of personal information banks held by public bodies to be made available to the public. Section 82(9) describes the meaning of a personal information bank. The Committee considered whether an amendment should be made to section 82 to specify the definition of "personal information bank", particularly regarding electronic files, as it relates to the Directory of Records and local public body listings. The Committee found the language of the provision clear and was unanimous in finding it unnecessary to add to the list of definitions.

23. The Committee considered whether an amendment should be made to section 82 of the Act to provide a definition for "personal information bank", particularly regarding electronic files as they relate to the Directory of Records and local public body listings, and determined that no changes were required.

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Definition of "person"

The question was raised as to whether the term "person" in section 86 required definition. The Committee unanimously agreed that "person" was not a term that needed to be defined in the Act.

24. The Committee considered whether there was a need to clarify how the term "person" in section 86 of the Act is to be interpreted, and how it related to the administration of that section, and determined that no changes were required.

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Penalty for breach of duty to assist

Section 9 of the Act requires that the head of a public body must make every reasonable effort to assist applicants and to respond to each applicant openly, accurately and completely.

It was noted that there is no enforcement mechanism attached to the duty to assist and it was suggested that it be made an offence to not discharge the duty imposed on a public body in section 9.

The Committee noted that under the Act the Commissioner has the power to make an order, whether or not a review is requested, related to, among other things, when a duty imposed by the Act or the regulations is not performed.

The Commissioner has fairly broad powers in this respect and failing to comply with an order of the Commissioner is an offence under section 86(1)(d) of the Act and is subject to a penalty of up to $10,000.

25. The Committee considered whether a specific penalty should be attached to the duty to assist in section 9 of the Act and agreed that no changes were required.

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Maximum penalty for offences

Section 86(2) of the Act provides for a maximum penalty of $10,000 for a person who is guilty of an offence under the Act. The Committee considered whether this was sufficient and agreed that the current maximum was adequate. It was agreed that this was a substantial amount for individuals, and that negative publicity rather than fines was likely to be the principal deterrent for public bodies. This penalty is in line with maximum penalties in other jurisdictions. The Committee unanimously agreed to recommend no change.

26. The Committee considered suggestions for change but determined that the $10,000 fine in section 86(2) of the Act should remain unchanged.

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Removal of agencies, boards and commissions from application of the Act

Section 88(2) of the Act provides that the Lieutenant Governor in Council may remove an agency, board or commission from the Act if the Commissioner is satisfied that the body should be removed. The Committee considered whether the current process for the removal was appropriate, and unanimously agreed that there was no cause for dissatisfaction with the provision in question.

27. The Committee considered whether the current process for deleting designated agencies, boards and commissions in section 88(2) of the Act is appropriate and determined no changes were required.

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Funding for implementation of the FOIP Act in local public bodies

Addressing concerns expressed by some local public bodies related to the cost of implementing and administering the FOIP Act, the Committee considered that the expenses involved were part of the cost of being a public body and unanimously agreed that it was not in a position to make recommendations related to requests for funding. It also noted that there was a 3-year phase-in period during which the bodies should have made provisions for implementation.

28. The Committee considered whether they should address the concerns expressed by local public bodies related to the cost of implementing and administering the FOIP Act (particularly in regard to records management requirements) and determined this was beyond the scope of the Committee's mandate.