Submission on the Review of The Freedom of Information and Protection of Privacy Act, 2004

by the Manitoba Association for Rights and Liberties

May 2004

INTRODUCTION

The Manitoba Association for Rights and Liberties (MARL) has made presentations a number of times on The Freedom of Information and Protection of Privacy Act including a submission on the discussion paper which led to the present Act, a presentation to the legislative committee on Bill 50 and submission on the review of the Act in 2000. The recommendations which follow are largely consistent with these previous submissions.

INFORMATION AND PRIVACY COMMISSIONER

MARL has not included detailed recommendations for the creation of an information and privacy commissioner, with power to issue binding orders, in the submission. Although MARL still believes that the concept of a commissioner has merit, it is not a priority at this time.

Certain aspects of the commissioner's role should be given further consideration. The federal Personal Information and Electronic Documents Act gives the federal privacy commissioner broad powers to regulate use of personal information in the private sector. This legislation applies to provincially regulated undertakings unless the province has adopted "substantially similar" legislation. MARL recommends that the provincial government monitor the application of the federal legislation in Manitoba and consider creating a privacy commissioner with authority over both the public and private sectors.

DEFINITION OF PERSONAL INFORMATION

Recommendation 1

Amend the definition of personal information to exclude the name, title, business address and business telephone number of an individual who is acting as an officer, director or representative of a corporation, partnership, public body or other entity which is not an individual.

Comment: There are competing views as to whether the definition of personal information requires government departments to protect names of officials of corporations and organizations when their names appear on records under the control of a government institution. There is no case law that definitively resolves this question. The above definition would expressly resolve the question.

SECTION 10 - ACCESS TO RECORDS IN ELECTRONIC FORM

Recommendation 2

Repeal the entire Section 10(1).

Comment: There is no justification for placing extra restrictions on the obligation of a public body to disclose records kept in electronic form. All public bodies should be encouraged to maintain electronic records in a form which permits public access in a form which does not unduly disrupt the functioning of the public body.

If a request for access requires some custom programming to make the records available, the appropriate remedy is not to deny access but to require that the requester pay the reasonable cost of producing the record.

Recommendation 3

Add a provision to Subsection 10(2) that where a record exists in the format requested the public body shall provide a copy of the record in that format.

Comment: There has been some federal case law which has permitted federal public bodies to refuse to produce records in electronic format even though the records existed in that format.

SECTION 13 - REPETITIVE OR ABUSIVE REQUESTS

Recommendation 4

Amend the section to provide that where the head of a public body believes, on reasonable grounds, that a person or persons is abusing the right of access to information for the purpose of disrupting the work of the public body, the public body could apply to court for an order prohibiting the requesters from making further requests for information, for a specified period of time, without first obtaining leave of the court

Comment: The section, as presently worded, provides public bodies with a number of pretexts for denying requests for access but does not provide an effective remedy in cases where there is a genuine case of abuse of the right of access. The proposed amendment would provide a strong remedy which could be invoked in extreme cases where the public body could satisfy a judge that the right of access was being abused.

SECTION 19 - CABINET CONFIDENCES

Recommendation 5

Replace Subsection 19(2) with the following:

19(2) Subsection (1) does not apply if:

(a) the Cabinet for which or in respect of which the record has been prepared consents to the disclosure;

(b) the record is more than 15 years old;

(c) the record consists of background explanations or analysis to Cabinet its consideration in making a decision if:

(i) the decision has been made public,

(ii) the decision has been implemented, or

(iii) 5 years or more have passed since the decision was made or considered.

Comments: The period of non-disclosure is reduced from thirty years. Proposed paragraph 19(2)(c) is taken from paragraph 12(2)(c) of the B.C. Act.

SECTION 23 ADVICE TO A PUBLIC BODY

Recommendation 6

Replace paragraph 23(1)(a) with the following:

(a) an opinion, advice or recommendation submitted by an officer or employee of a public body or a member of the staff of a minister to a public body or a minister;

Comments: This amendment would limit the scope of the exemption from disclosure to advice provided by employees of the public body. The wording is based on paragraph 39(1)(a) of the old Access to Information Act.

Recommendation 7

Repeal paragraph 23(1)(b).

Comments: The paragraph is vague and over broad. Any consultations and deliberations which should be kept confidential are already protected by paragraphs (a), (c), (d), (e) and (f).

Recommendation 8

Change "30 years" to "15 years" in paragraph 23(2)(a).

Comment: This makes the period of protection for advice to a public body consistent with the proposed period of protection for cabinet records.

Recommendation 9

Add the following to the end of section 23(2): (i) a report prepared by a consultant, who was not, at the time the report was prepared, an employee of the department or a member of the staff of the Minister.

Comment: This is a provision of Section 39(2)(f) of the old Access to Information Act which was not included in the new Act.

Recommendation 10

In subsection 23(3) replace the words " a tax policy or other economic policy of a public body" with "a proposed tax or budgetary change which has not yet been made public."

Comments: Once a tax or budgetary change is announced, there is no further justification for not disclosing the background research which led to the change.

SECTION 25 - DISCLOSURE HARMFUL TO LAW ENFORCEMENT OR LEGAL PROCEEDINGS.

Recommendation 11

Amend paragraph 25(1)(c) by adding the word "legal" before "investigative techniques" and paragraph 25(1)(d) by adding the word 'legal" before "gathering.":

Comments: The exemption should not be used to conceal information relating to unlawful activities by law enforcement agencies.

SECTION 32 - INFORMATION THAT IS OR WILL BE AVAILABLE TO THE PUBLIC

Recommendation 12

Add the words "at a cost to the applicant which does not exceed the fee which the public body would be entitled to charge for disclosure of the information requested by the applicant under this Act." to paragraph 32(1)(a).

Comment: This amendment is intended to prevent public bodies from packaging information for sale at a price which is beyond the reach of ordinary citizens. A citizen who requires access to one or two records from a public office should not be required to purchase an entire database from a private publisher.

SECTION 44 - DISCLOSURE OF PERSONAL INFORMATION

Recommendation 13

Repeal paragraph 44(1)(g)

Comment: This paragraph permits the government to use personal information, without the consent of the subject, for "the purpose of managing or administering personnel of the Government of Manitoba or a public body." There is no reason why employees of public bodies should not have the same rights to privacy with respect to their personal information as anyone else.

MANDATORY PUBLICATION OF INFORMATION

Recommendation 14

FIPPA should contain a provision that specifies that all public bodies subject to the Act are required to post the following information on their web site:

1. List of statutes and regulations administered by the Department.
2. Documents published by the public body in the Manitoba Gazette.
3. Spending estimates and public accounts specific to the public body (e.g.: specific to a department).
4. Manuals and internal policies adopted by the public body for use by its employees (subject to other exemptions in FIPPA).
5. List of the programs offered to the public by the public body, including application forms and a summary of eligibility rules and benefits for each program.
6. Audit reports undertaken by or for a public body (subject to other exemptions in FIPPA).
7. Description of requests received by the public body for access to information (this would not include requests for one's own personal information).
8. List of contracts for a value in excess of $10,000 concluded by the public body, and the name of the contractor.
9. Description of public opinion polls conducted for or purchased by the public body, within 90 days of receipt of the results of the polling results.
10. List of grants or contributions for a value in excess of $10,000 provided by the public body, and the name of the recipient.

Comments: In the U.S. amendments to the Freedom of Information Act in 1996, called the E-FOIA amendments, it became a statutory requirement for all federal U.S. government institutions to create an electronic reading room, and to put in each reading room the following: (1) final opinions and orders in the adjudication of administrative cases; (2) agency policy statements; (3) administrative staff manuals; and (4) records disclosed in response to a FOIA request that the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.

In the E-Government Act enacted in 2002, each U.S. federal government institution is further required by statute to publish electronically the mission and statutory authority, the organizational structure of the agency, the strategic plan of the agency, all agency information required to be published in the Federal Register, all public submissions and agency documents related to 'rule-making' (e.g.: related to regulations, policies and interpretations of the agency that were released for public comment), and detailed information about research and development funded by the agency. In addition, each agency is required to solicit public comment on which government information the agency intends to make available, to develop priorities and schedules for making government information available and accessible, and to post on the Internet final determinations on which information would be made available and when it would be available.

In Canada, the federal government now posts on its web site travel expenses of Ministers and their exempt staff and its internal audit policy provides that internal audits should be published.

All major jurisdictions in Canada now use the Internet to make a variety of information available. However, there is still a role for legislation to ensure that every public body must provide proactive access to a minimum standard of information.

Recent federal events have demonstrated the importance of ensuring that government expenditures are as transparent as possible, and that the public accounts are not sufficient. A recent decision from the Federal Court of Appeal has highlighted again the importance of disclosure of information about contracts.

MANDATORY DISCLOSURE IN THE PUBLIC INTEREST

Recommendation 15

Add a new section providing that information must be disclosed if in the public interest.

34.1 (1) Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information

(a) about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or

(b) the disclosure of which is, for any other reason, clearly in the public interest.

34.1(2) Subsection (1) applies despite any other provision of this Act, provided that the head of a public body shall not disclose personal information unless it essential to meet the objectives of subsection (1) and shall take reasonable steps to restrict the use or further disclosure of any personal information which is disclosed under Subsection (1).

34.1(3) Before disclosing information under subsection (1), the head of a public body must, if practicable, notify any third party to whom the information relates.

34.1(4) If it is not practicable to comply with subsection (3), the head of the public body must mail a notice of disclosure in the prescribed form to the last known address of the third party.

Comment: The section is based on Section 25 of the B.C. Act. It provides for a general "public interest" override of the exemptions from disclosure under the Act. A decision of a head of a public body made under this section is subject to appeal to the Commissioner.\

The Section applies to all forms of information, including personal information. However, personal information shall be disclosed only when  essential and the public body may take steps to prevent its further disclosure. For example, the public body could require that the  person requesting the information  agree only to use the information for the specific purpose for which the request was made and to destroy or return all copies of the personal information once the purpose has been fulfilled.