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Justice
June 11, 2012

Proposed Amendments Will Strengthen
Access to Information and Protection of Privacy Act

The Access to Information and Protection of Privacy Act (ATIPPA) will be enhanced, strengthened and become more consistent with other Canadian jurisdictions through amendments to be introduced in the House of Assembly today (Monday, June 11). Bill 29, the An Act to Amend the Access to Information and Protection of Privacy Act is the result of the statutory review completed in 2011 by Commissioner John Cummings, Q.C.

“The cornerstone of the Access to Information and Protection of Privacy Act is openness, transparency and accountability, and our government is committed to this important piece of legislation,” said the Honourable Felix Collins, Minister of Justice and Attorney General. “The recommendations outlined in the report reflect input provided during consultations. The majority of the recommendations provided by Mr. Cummings have been accepted or modified. Other recommendations will require further review and as a result need to be addressed with all public bodies before implementation.”

Sixteen of 33 recommendations contained in the report prepared by Commissioner Cummings are being accepted in full and five are being modified. The remaining recommendations require either further review, do not require legislative amendments or have not been adopted. Details on each of the recommendations are included in the backgrounder below.

Some of the key legislative amendments to ATIPPA include:

Proclaimed in January 2005, ATIPPA applies to more than 460 public bodies, from government departments and agencies, to health care and educational bodies, as well as to municipalities. The act mandates in Section 74 that a review of the legislation be commenced within five years. The Provincial Government announced a review of ATIPPA and the appointment of a commissioner on March 17, 2010. Commissioner Cummings sought input from residents of Newfoundland and Labrador on their experiences with the legislation, as well as any revisions they may suggest. The 80-page report was delivered on January 26, 2011, and contained 33 recommendations. During a subsequent review of the report, the Department of Justice compared Mr. Cummings recommendations with provisions contained in similar legislation in other Canadian jurisdictions.

“When this government proclaimed the Access to Information and Protection of Privacy Act in 2005, we did so because the public have the right to information and it helps public bodies be more open and accountable,” said Minister Collins. “The amendments brought forward today uphold our continued commitment to this important piece of legislation while providing clarity on the right to information and the use and disclosure of personal information.”

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Media contact:
Vanessa Colman-Sadd
Director of Communications
Department of Justice
709-729-6985, 682-6593
vanessacolmansadd@gov.nl.ca 

BACKGROUNDER
Status of Recommendations Contained in the Review of the
Access to Information and Protection of Privacy Act by John Cummings, Q.C.

　 Recommendation Action Taken
1. Every department should have a policy on routine disclosure, which should include provisions for the disclosure of documents that are commonly requested but do not contain sensitive information or mandatory exceptions to disclosure.

Funding should be made available to public bodies so they have the ability to post as much information as possible on their websites.

 This is a non-legislative amendment which requires further review.
2. All public bodies should receive increased training in privacy issues and should develop written privacy policies. This is a non-legislative amendment which requires further review.
3. All public bodies should have an IMCAT (Information Management Capacity Assessment Tool) carried out by an information management specialist.

All public bodies should have retention and disposal schedules for all paper and electronic records in their possession, including e-mail.

All public bodies should take additional steps to ensure that all records management policies, including policies on e-mails, are clearly understood by all employees.

There must be greater co-ordination and training to ensure that requests for information and privacy issues are dealt with consistently across the public sector.

All public bodies should use redaction software in the severance process when responding to requests for information.

All public bodies should review their organization and especially their reporting structures to ensure that access to information requests are dealt with in a timely and efficient manner.

Currently, several public bodies designate their ATIPPA Co-ordinator role to the Information Management resource.  Public bodies not having this practice should evaluate if this pairing of duties is appropriate for them.

All public bodies serviced by the Office of the Chief Information Officer (OCIO) should consult extensively with that office on all the above recommendations.

 This is a non-legislative amendment which requires further review.
4. Funding for the Official Opposition for purchased services should be increased. This recommendation should be addressed through the normal budget process.
5. The definition of personal information should be amended to include a provision having the same effect as subsection 3(1)(i)(ix) of Nova Scotia’s Freedom of Information and Protection of Privacy Act. Accepted
6. The definition of public body should be amended to include any board, committee, commission, panel, agency, corporation or other entity created by or on behalf of a public body or a group of public bodies. The Lieutenant Governor in Council has the existing authority under ATIPPA to add entities to the definition of public body by way of regulation under section 73(o).
7. Disputes relating to whether records are judicial records or records related to a prosecution pursuant to subsections 5(1)(a) and 5(1)(k) respectively should be taken before the Supreme Court, Trial Division for determination of the issue.

Disputes relating to a note, communication or draft decision of a person acting in a judicial capacity, as referenced in subsection 5(1)(b), should be taken before the Supreme Court, Trial Division for determination of the issue.

The Information and Privacy Commissioner should have express authority to examine records relating to disputes of a note, communication or draft decision of a person acting in a quasi-judicial capacity, as referenced in subsection 5(1)(b), and disputes regarding subsections 5(1)(c) to 5(1)(j), to determine whether those records fall within his jurisdiction.

 Current law is maintained with section 5 records being referred directly to the court when in dispute. In addition, police informant information and RNC investigation files that have not been completed are added. Due to the sensitive nature of these records, stronger protection is required under ATIPPA.
8. The fee structure as currently set out in the ATIPPA should not be increased.

It is recommended that public bodies should provide information to applicants in electronic form when requested, provided it is reasonable to do so and security measures have been taken to ensure the integrity of the document will remain.

 This recommendation has not been accepted as processing fees will be raised from $15 to $25 an hour to be more consistent with other jurisdictions; the first four hours of processing time will be free of charge to applicants; the types of processing activities that can be charged will be expanded (e.g. contemplation time for severing); fees exceeding $50 will be paid in two installments prior to receiving the requested records – 50 per cent of the fee must be paid prior to the first half of work being completed and the balance must be paid prior to the completion of the remainder of the work; the $5 administration fee will remain the same.
9. Subsection 16(1) should be replaced by a new provision which allows an extension of time for up to 30 days, or with the Commissioner’s permission for a longer period, if:

(i) the applicant does not give enough detail to identify requested records;

(ii) a large number of records are requested or must be searched or the public body is forced to deal with a large number of concurrent requests and responding within 30 days will unreasonably interfere with the operation of the public body;

(iii) consultations with another public body or a third party are needed before responding to the request; or

(iv) other circumstances exist where the Commissioner agrees that an extension is fair and reasonable.

 		Accepted
10. It is recommended that public bodies have authority, with prior approval of the Commissioner, to disregard requests for information if they:

(i) are frivolous or vexatious;

(ii) are made in bad faith or are trivial;

(iii) because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body; or

(iv) amount to an abuse of the right to make requests for information.

 		Amended to reflect Mr. Cummings’ recommendation with the exception of requiring prior approval from the OIPC because such documents as Commissioner reports, case law and policy manuals provide guidance on what constitutes a request that is frivolous or vexatious, made in bad faith, trivial, or amounts to an abuse of process. The amendment also permits a public body to disregard a single request that is excessively broad with the prior approval of the OIPC. Due to its broad nature, prior approval of the OIPC is necessary. It also provides for a right of appeal to the OIPC where previous approval has not been given.
11. It is recommended that the list of information captured by section 18 of the ATIPPA be extended to include the listing of cabinet records found in the Province’s Management of Information Act. Amended to include a complete listing of almost all cabinet records in the Management of Information Act. The substance of deliberations test is removed. As well, the following three types of cabinet records are included: official cabinet records, discontinued cabinet records, and supporting cabinet records. Official cabinet records certified by the Clerk or his delegate (the Deputy Clerk of the Executive Council or the Secretary of the Treasury Board) are reviewed by the courts in the event of a dispute and all other cabinet records are reviewed by OIPC. The Federal access to information legislation also includes a certification process.

The Auditor General Act is amended to provide that the AG shall not be permitted access to section 18 records where the Clerk of Executive Council (or his or her delegate) certifies that they contain the deliberations of cabinet or a committee of cabinet or matters of a confidential nature that would be injurious to the public interest.

This amendment is consistent with the Child and Youth Advocate Act and the Citizens’ Representative Act.

This amendment preserves the current practice of the AG receiving certain information to perform necessary duties.
12. Section 19 should be clarified to ensure that the confidentiality of deliberations of a private meeting is not eliminated in the event that information from the private meeting is incidentally referenced in a later public meeting. Accepted
13.

It is recommended that section 20 be amended to include additional protection for: “proposals,” “analysis, including analysis of policy options” and “consultations and deliberations” between ministers, the staff of the ministers and officials.

 		Amended to protect:
  • proposals, analyses, policy options, and consultations and deliberations between ministers, the staff of ministers and officials;
  • records created solely for the purpose of briefing a minister assuming a new portfolio for five years;
  • records created solely for preparing a minister for sittings in the House or Assembly for five years; and
  • the content of a formal research or audit report that is incomplete for three years.

This approach is similar to Alberta’s legislation.
14. The definition of law enforcement found in subsection 2(i)(ii) should be amended to include only investigations, inspections or proceedings conducted under the authority of or for the purpose of enforcing an enactment that lead or could lead to a penalty or sanction being imposed under an enactment. Accepted
15. Subsection 24(1) of the ATIPPA should be replaced by a provision along the lines of section 18 of Saskatchewan’s Freedom of Information and Protection of Privacy Act.

Section 27 of the ATIPPA should be replaced by a new provision modelled on section 18 of the Freedom of Information and Protection of Privacy Act of Manitoba.

Subsection 27(2) should be amended to prevent the disclosure of royalty information received by the Province in a royalty return except for aggregated royalty information that does not identify the information of individual parties.

 Accepted
16. Section 28 of the ATIPPA should be amended to ensure that third parties are always notified whenever a request for information is received which affects the information of the third party. Accepted
17. Section 30 of the ATIPPA should be replaced with a new provision containing a harm test along the lines of section 17 of the Freedom of Information and Protection of Privacy Act of Alberta. Accepted
18. It is recommended that the ATIPPA be amended to provide that only the salary range of an employee may be disclosed and not the specific amount of remuneration. Accepted
19. The ATIPPA should be amended to provide an exception to disclosure for the following opinions: references for employment; opinions related to a person’s admission into an academic program; opinions related to the awarding of an employment contract; opinions in workplace dispute resolution processes; opinions related to the granting of tenure; peer reviews; and opinions solicited for the purpose of granting an honour or award. Accepted
20. Section 38 of the ATIPPA should be amended along the lines of subsection 41(1)(d) and 41(2) of Ontario’s Freedom of Information and Protection of Privacy Act to permit the university to use personal information in its alumni records for the purpose of institutional fundraising.

Section 39 of the ATIPPA should be amended along the lines of subsection 40(1) of Alberta’s Freedom of Information and Protection of Privacy Act.

 Accepted
21. Section 42.2 of the ATIPPA should be amended to provide for at least a five-year term for the Commissioner. This recommendation has not been accepted as the process of appointing the OIPC for a two-year term has worked well in this province.
22. The ATIPPA should be amended to include provisions modelled on subsections 67(2) and (3) of the Province’s Personal Health Information Act (PHIA) which specify that the Commissioner must conduct a review only when there are reasonable grounds to do so, and provide that the Commissioner may decline to conduct a review if:

(i) the public body has responded adequately to the request;

(ii) the complaint has been or could appropriately be resolved by an alternate procedure;

(iii) the lapse of time between the date when the complaint arose and the filing of a request for review is so great it will likely cause undue prejudice or a report would serve no useful purpose; or

(iv) the request for review is trivial, frivolous, vexatious or is made in bad faith.

 		Accepted
23. It is recommended that the ATIPPA be amended permitting the Lieutenant Governor in Council to appoint a person to review the decisions of the Commissioner’s Office about disclosure of its own information. The current provision providing for appeals to the court is adequate given that this situation would likely be a rare occurrence.
24. Subsection 46(2) of the ATIPPA should be amended to eliminate the 30-day time limit for informal review and provide the Commissioner with discretion to determine the length of the informal review periods in all cases. Amended to provide the OIPC with a 60-day time limit to complete informal reviews. This approach is consistent with the Personal Health Information Act.
25. Section 47 of the ATIPPA should be amended to provide expressly that when a decision of a public body not to disclose information is reviewed, the public body is entitled to make representations to the Commissioner’s Office during the review. Accepted
26. Section 48 of the ATIPPA should be amended to remove the 90 day time limit for the Commissioner’s Office to complete a review.  The ATIPPA should be further amended to require the Commissioner’s Office to complete a review within 120 days after a request for a review is made, unless they notify the relevant parties that they are extending the time period and provide an anticipated date for providing a report. Amended to provide the OIPC with a 120-day time limit. This approach is consistent with the Personal Health Information Act.
27. It is recommended that recommendation power of the Commissioner remain unchanged. Accepted
28. The ATIPPA should be amended to expressly authorize the Commissioner to investigate a complaint from an individual that his or her personal information has been collected, used or disclosed contrary to ATIPPA. Accepted
29. The ATIPPA should be amended to make it clear that when a claim of solicitor-client privilege is in dispute, the issue should be referred to the Supreme Court, Trial Division for resolution of the matter.

The ATIPPA should also be amended to provide that when information to which solicitor-client privilege applies is disclosed to the Supreme Court, Trial Division, the privilege is not affected by the disclosure.

 Accepted
30. Section 65(e) of the ATIPPA should be amended to permit the nearest relative of a deceased person to exercise rights or powers under the act in relation to the administration of the deceased person’s estate where the deceased has no personal representative. This recommendation requires further review.
31. The ATIPPA should be amended to include the proposed amendments outlined in Appendix A of this report. Accepted
32. The ATIPPA should be amended along the lines of subsection 17(3) of Saskatchewan’s Freedom of Information and Protection of Privacy Act if the government determines that section 8.1 of the Province’s Evidence Act remains relevant and that information covered by that section should be protected from disclosure. This recommendation requires further review.
33. It is recommended that the Provincial Government consider the following issues and, if necessary, put a more detailed review in place which would include appropriate stakeholders and experts: the sharing of information about children in the Province’s school system; the interaction of the ATIPPA with the Elections Act; access to health information by a member of the House of Assembly; and the protection of labour relations records under the ATIPPA. Amended to protect labour relations information of government as an employer.

Other issues in this recommendation require further review.

 

2012 06 11                        12:10 p.m.

 
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