June 19, 1991
Table of Contents
On February 4, 1991, the Office of the Information and Privacy Commissioner (the IPC) provided the Standing Committee with an extensive report outlining its comments and suggestions regarding the freedom of information and privacy scheme contained in the Freedom of Information and Protection of Privacy Act, 1987, as amended (the Act).
This supplementary report is intended to provide background information on some of the suggested recommendations made by other individuals and/or organizations, and to indicate which proposals, in the opinion of the IPC, may warrant further study by the Committee. Overall, the IPCs observations seek to provide an additional perspective in order to facilitate the Standing Committees assessment of the merits of the recommendations and ideas presented to it.
A list of the individuals and organizations whose written submissions were reviewed by the IPC (as of June 5, 1991) is provided in Appendix 1. For ease of reference, the discussion of the recommendations has been organized under the following headings:
Coverage of the Act
Structure of the Act
Role of the Commissioner
Exemptions under the Act
Release of Personal Information to News Media
The recommendations have been presented, wherever possible, in the language used in the original submissions. Immediately following each recommendation, in parenthesis, is an abbreviation of the name of the individual or organization that made the recommendation. The key to the abbreviations may be found in Appendix 1 to this report.
Throughout this paper, mention is made to specific recommendations the IPC made to the Standing Committee in its report "Suggested Changes to the Freedom of Information and Protection of Privacy Act. 1987, as amended". To enable the Committee members to quickly access the referenced material, page numbers have been provided in all cases. References to other sources have also been identified.
Coverage of the Act
1. Extend coverage of the Act to the private sector. (KR, DF)
Professor David Flaherty, a noted privacy advocate, recommended that the Committee seriously consider extending portions of the Act "to the provincially-regulated private sector, especially for such privacy-intensive sectors as consumer credit, insurance, employment, mailing lists, and direct-marketing."
Mr. Ken Rubin, a self-described "public interest researcher", agreed with this recommendation, but also suggested that all private businesses be required to adopt "a privacy code of fair personal information practices." The implementation and operation of these codes should, in Mr. Rubins opinion, be subject to review by the Information and Privacy Commissioner.
On June 29, 1984, Canada formally adopted the Organization for Economic Co-operation and Developments Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. This action committed Canada "to encourage private sector corporations to develop and implement voluntary privacy protection codes." (Open and Shut: Enhancing the Right to Know and the Right to Privacy, p. 73)
In addition, the European Community is currently considering a draft directive that would require private sector privacy codes within countries planning to participate in European Community trade. This directive, if implemented, would provide further incentive for the adoption of voluntary privacy codes.
Given the commitment to the OECD guidelines and the proposed trade requirements, the Ontario Government may want to encourage private sector companies to voluntarily adopt privacy codes which would greatly enhance the protection of individual privacy within the province.
Mr. Rubin also recommended the extension of the access provisions of the Act into the private sector. The adoption of a freedom of information scheme for private corporations would likely have a major impact on businesses, government, the IPC and the public. Requiring non-government businesses to provide public access to their records may be perceived by many as a controversial measure. Also, it is one which, to the best of the IPCs knowledge, has not been undertaken by any other jurisdiction.
2. Extend the access provisions of the Act to cover various public or publicly funded institutions. (KR)
Specifically, Mr. Rubin recommended that the freedom of information provisions be extended to:
- public hospitals,
- bodies having public appointees (e.g., the Art Gallery of Ontario),
- bodies with a designated public role (e.g., the Investment Dealers Association has a delegated investigative role from the Ontario Securities Commission),
- bodies receiving over $50,000 annually in public monies.
Subsection 2(1) of the Act defines an institution as:
(a) a ministry of the Government of Ontario, and
(b) any agency, board, commission, corporation or other body designated as an institution in the regulations.
Subsection 1(1) of Ontario Regulation 5 16/90 under the Freedom of Information and Protection of Privacy Act. 1987, provides that:
1.(1) The agencies, boards, commissions, corporations and other bodies listed in Column 1 of the Schedule are designated as institutions.
The Act does not provide any other details on what institutions should be covered. However, the Williams Commission addressed this issue as follows:
the primary purpose of the proposed freedom of information scheme is to facilitate greater accountability of "government" in the broad sense. ... it is our view that the freedom of information law should apply to those public institutions normally perceived by the public to be part of the institutional machinery of the Ontario government.
... a public institution which is either wholly financed from the provincial consolidated revenue fund, or controlled by the government (whether through ownership or through a power of appointment), should be considered a governmental institution for the purpose of our freedom of information scheme.
Although this definition excludes some organizations which receive extensive public financing such as hospitals and universities, we feel that it is nonetheless appropriate to so restrict the scope of the proposed legislation. Neither hospitals nor universities are commonly thought of as institutions of government. ...
The governing bodies of the self-regulating professions and some of the producer-controlled marketing boards, although set up for certain public purposes, have been established in such a way as to preclude them from being subject to the direct control of the government. Again, we believe that such organizations would not be commonly thought of as governmental institutions ... (Vol. 2, p. 237-239)
To expand the definition of "institution" could result in a broader application of the legislation. It would also ensure that exceptions do not proliferate over time, resulting in a system where some government agencies are under the Act and some are not.
To address this issue, the Committee may want to recommend that a review be conducted to identify which public institutions do not currently fall under the Act and then determine whether they should be added to the Schedule under the Regulation. Such a review should address the issue of the non-inclusion of universities, raised by Professor W. A. Bogart in his letter to the Committee.
The issue of the non-inclusion of hospitals is already being examined in a different context. The government has pledged to introduce a "Health Care Information Access and Privacy Act" sometime next year. The Ministry of Health is currently engaged in consultation with all interested parties.
As noted above, the Williams Commission report did recommend that funding from the Consolidated Revenue Fund be established as one of the criteria to determine inclusion under the However, this criterion was specifically rejected by the Standing Committee at the time the Act was created.
Finally, as every private sector business has some type of public role, a clear definition of what constitutes an agency with a "designated public role" is required before this recommendation can be considered.
3. The terms of the Act should apply to the Legislature and its committees. (KR, CBC)
While one of the purposes of the Act set out in subsection 1(a), is to provide a right of access to information held by the government, the drafters of the legislation recognized that there were necessary limits to that openness.
The Williams Commission noted that a great deal of the Legislatures work is already performed in the public eye and, therefore, available for public scrutiny:
It is ... our view that the freedom of information scheme should not be applied to the legislative and judicial branches of the government. Both these institutions currently operate under conditions of openness and publicity which render the application of freedom of information laws to them unnecessary. ... In the legislature, debate is conducted in sessions to which the public is invited. A transcript of the legislative debates is published. Documents which are tabled in the assembly are made available to the public as well. ... However, in exempting the legislature and judicial branches of government from our scheme, we would not thereby exempt the administrative and support services of these bodies, nor would we exempt from our proposals ministers of the Crown in their capacity as heads of government departments. (Vol. 2, p. 239)
The implications of this recommendation are far-reaching. Its adoption could fundamentally change the way the Legislature operates (e.g., if access to the records of House leaders meetings were permitted, it is possible that the ability of the House leaders to negotiate priorities on behalf of their parties would be compromised). Also, by allowing the Commissioner to make rulings over political documents, there would be a risk that the Commissioner would be viewed as partisan.
For the Committees information, the IPC understands that the Office of the Assembly has already adopted a voluntary code of access and privacy for the administrative and support services of the Legislature.
4. The Act should be repealed. (HCC)
The Hastings County Council unanimously endorsed the following resolution:
Whereas the Freedom of Information and Protection of Privacy Act has created undue pressure on municipalities in terms of providing additional service;
And whereas this Act has severely restricted the flow of information between government agencies;
And whereas this Act has also limited the amount and type of information available to municipal councils regarding the operations of their own departments;
Be it therefore resolved that the premier of Ontario be petitioned to repeal this Act.
Leaving aside the fact that the Municipal Freedom of Information and Protection of Privacy Act, 1989 is not presently the subject of the Committees review, the adoption of this recommendation would mean a reversal of public policy in the areas of privacy and access to information at all levels of government.
5. Section 65(2)(b) must be repealed without any replacement since section 65(2)(a) already is sufficient to provide protection to clinical records. (ORA)
Subsection 65(2) of the Act states:
65.(2) This Act does not apply to a record in respect of a patient in a psychiatric facility as defined by clause 1 (p) of the Mental Health Act, where the record,
(a) is a clinical record as defined by clause 29(l)(a) of the Mental Health Act or
(b) contains information in respect of the history, assessment, diagnosis, observation, examination, care or treatment of the patient.
According to the Oracle Research Associates Inc. (the ORA):
Section 65(2) is a dangerous exemption as it creates a class of records which neither fall within the jurisdiction of the Act or the Mental Health Act. This exemption permits institutions to place records under this clause and thus deny patients, their counsel, their families and others the right to review this important information. Further this clause unfairly deprives individuals the right under the Act and/or the Mental Health of seeking correction of the record, placing a statement of disagreement on the record, and does not provide a minimum time limit for which the records must be retained as the Act does. This exemption has been abused as it includes records which also constitute Clinical Records thus creating confusion and a potentially dangerous situation.
The IPC addressed its concerns regarding subsection 65(2) in Clarification XVII (p. 69). It is suggested that this provision be amended to make explicit the fact that this provision refers to records relating to patients in psychiatric facility that are in the custody or under the control of an institution, as defined under subsection 2(1) of the Act.
Careful consultation with all affected parties and institutions should be undertaken before the Committee considers adopting ORAs recommendation.
Structure of the Act
6. The Committee could examine whether separate freedom of information and privacy protection acts are advisable. (KR)
The Williams Commission recommended the establishment of two legislative schemes to handle freedom of information and privacy protection matters. It was only at a later date that both schemes were combined into one act.
If, as recommended, the Committee decides to examine whether separating the Act into two pieces of legislation would be advisable, extensive consultation with all parties involved should be undertaken.
7. The Freedom of Information and Protection of Privacy Act. 1987 and the Municipal Freedom of Information and Protection of Privacy Act. 1989 should be amalgamated so as to avoid confusion. (KR, CDNPA)
Study of this idea is required to determine exactly what type of confusion currently exists, and whether the amalgamation of the two Acts would alleviate that confusion.
Until a decision has been made regarding this recommendation, the Committee should note that requesters are not required to cite section numbers or provide legal reasons why the information they have requested should be released. This means that requesters do not need to be familiar with the specifics of either of the Act in order to use them. In addition, the Management Board of Cabinet (MBC) has created a publicly available Table of Concordance for the two Acts.
Role of the Commissioner
8. Create a three person Commission with "binding powers to review the information disclosure and privacy codes of covered private sector groups and government release practices with a more user friendly appeal procedure." (KR)
Subsection 4(1) of the Act states:
4.(1) There shall be appointed, as an officer of the Legislature, an Information and Privacy Commissioner to exercise the powers and perform the duties prescribed by this or any other Act.
The IPC is currently organized so there is a Commissioner, an Assistant Information Commissioner and an Assistant Privacy Commissioner. Subsection 56(1) provides the Commissioner with the authority to delegate "a power or duty granted to or vested in the Commissioner to an officer or officers employed by the Commissioner" subject to the restrictions of the delegation and the exception provided by subsection 56(2). This means that the Commissioner could, theoretically, delegate order-making authority to as many IPC staff as is required for the business of the agency to be conducted efficiently.
As to the idea that a "more user friendly appeal procedure" be adopted, the IPC is constantly working to improve its handling of appeals. Just recently a survey was conducted to solicit suggestions from appellants, institutions, and third parties, on how the format of Orders could be improved.
9. The three person Commission should be "appointed at staggered terms, more along the Quebec terms of a five year appointment with the possibility of up to two further renewals." (KR)
Subsection 4(3) of the Act defines the term of the Commissioner's appointment. The IPC proposed, under Policy Change I (p. 78-81), that the Commissioner hold office for a term of seven years, which would enhance the independence and job security of the Commissioner.
10. Appoint one of the three Commissioners specifically as the Privacy Commissioner in order for privacy protection matters to receive adequate attention. (KR)
The IPC has already recognized the need to specifically address privacy issues by appointing an Assistant Privacy Commissioner with delegated authority to: (1) make Orders regarding destruction of personal information collections, and the cessation of collection practices; and (2) to authorize the collection of personal information otherwise than directly from the individual to whom the information relates.
Without additional definition of the role envisaged for the "Privacy Commissioner", it is unclear how privacy issues would receive greater attention than they are already receiving from the IPC.
11. The "Commissioners" should be called as witnesses of the Standing Committee" at least once a year, and be able to make appearances at any provincial and local committees or council." (KR)
Section 58 of the Act requires the Commissioner to make an annual report to the Speaker of the Legislative Assembly. This report provides a comprehensive review of the Act and the activities of the IPC. Moreover, there are no restrictions which preclude any Standing Committee from asking the Commissioner to appear before it at any time.
Exemptions Under the Act
12. Establish as the basic principle of the Act that public interest release outweighs all exemptions but the protection of personal information. (KR, CBC)
This specific recommendation was put forth by Mr. Ken Rubin, but it reflects the ideas of several other parties. The Canadian Broadcasting Corporation (CBC) recommended that section 23 of the Act be amended to apply to section 14 so that a compelling public interest could override the law enforcement exemption. Several other organizations addressed the related issue of the "publics right to know" in the context of the release of personal information to the news media in their briefs (discussed later in this paper under recommendations 47-49).
The Act already recognizes the publics interest in certain information under sections 11 and 23, which state:
11.-(1) Despite any other provision of this Act, a head shall, as soon as practicable, disclose any record to the public or persons affected if the head has reasonable and probable grounds to believe that it is in the public interest to do so and that the record reveals a grave environmental, health or safety hazard to the public.
23. An exemption from disclosure of a record under sections 13, 15,17, 18, 20 and 21 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.
According to the ORA, both of these provisions are unsatisfactory. In particular, ORA believes that section 11 "places the onus upon the requestor [sic] which is unfair and burdensome. The Co-ord. should [be] obligated to prove why this section does not apply." The IPC does not see that this section places any burden of proof on the requester. This provision outlines the mandatory obligation of a head to disclose any record, irrespective of an access request, if the head believes it is in the public interest to do so in certain specific circumstances.
ORA also thought that section 23 is "too vague as to what is defined as a compelling public interest" and that the present system puts the onus of proof on the requester. ORA recommended that the institutions freedom of information and privacy Co-ordinators should be obligated to consider section 23 when considering exemptions. The IPC agrees that the effective use of this "public interest" clause should be reviewed by the Committee.
At a recent conference, the Commissioner (then Assistant Information Commissioner), addressed the issue of public interest override as follows:
The public interest override, section 23 in our Act is a difficult section to apply, as it seems to place an onus on the requester or appellant to demonstrate the public interest in the record at issue. As an alternative to this situation, perhaps government should take into account that one of the basic principles in the legislation is a presumed right of access on the part of the public to general government records.
Institutions may well wish to consider this premise when dealing with any request for access to records, and exercise their discretion to apply any exemption with this firmly in mind.
The attitude of government towards the rights of the public regarding access to information is one of the most critical elements in the success of any FOI scheme.
13. Exemptions must be discretionary in nature except the personal information exemption. (KR)
Again, this recommendation was put forth by Mr. Rubin, but the CDNPA recommended that the mandatory exemptions of sections 12 and 17 of the Act be placed in the "permissive category because such exemptions will recognize that release of information should depend on the nature of the record and the context of the situation." The ORA also suggested that the exemption under section 12 should be discretionary.
To clarify, the Act provides 11 exemptions to disclosure. Three of these exemptions are mandatory, the balance are discretionary. Mandatory exemptions imposes a duty on the head of an institution to refuse to disclose a record which falls under the exemption. Discretionary exemptions permit the head to disclose a record despite the existence of the exemption.
The different decision-making processes to be followed in applying mandatory and discretionary exemptions are outlined in the Management Board of Cabinets "Freedom of Information and Protection of Individual Privacy" Manual as follows:
In the case of mandatory exemptions, the head must determine whether facts exist or may exist which being [sic - bring?] the record requested within the exemption. If grounds for the exemption exist, the head must refuse access, unless a compelling public interest outweighs the purpose of exemptions 17 and 21....
The Act requires a two-stage process in determining whether a discretionary exemption is to be applied. First, the head must determine, as in the case of a mandatory exemption, whether facts exist or may exist which being [sic - bring?] the record requested within an exemption. Second, the head must decide whether he/she is willing to release the record, despite the existence of grounds for the exemption. A decision by a head to disclose information falling within an exemption is an exercise of discretion. (p. 4-1)
The Williams Commission was in favour of the adoption of discretionary exemptions. It noted that "the adoption of mandatory provisions in a freedom of information law would have the perverse effect of imposing a duty on the government to refrain from disclosing such material" (Vol. 2, p. 280). The Williams Commission only proposed two exceptions to this rule, the exemption relating to documents containing personal information, the disclosure of which would. constitute an unwarranted invasion of privacy, and the exemption concerning trade secrets held by government institutions. (Vol. 2, p. 280)
The IPC encourages the Committee to examine this and other recommendations in light of the principles set out in the Act to determine if a move toward more open and accessible government may be made.
14. Narrow the quantity and scope of the exemptions. (KR, ORA)
Mr. Ken Rubin indicated in his brief that he wanted the following exemptions to be narrowed: Cabinet confidences, law enforcement, solicitor-client privileges, commercial confidentiality, economic interest of government, and intergovernmental affairs. Without additional details, the IPC is unable to provide specific comments on Mr. Rubin's recommendation. However, the Committee should note that one of the basic principles of the Act is that the exemptions from the right of access should be limited and specific.
In its submission to the Committee, the ORA also recommended that the number of exemptions be reduced and the scope of several be narrowed considerably.
The first exemption which ORA thought was "too broad in scope" is section 12. This section provides a mandatory exemption where disclosure of a record "would reveal the substance of deliberations of an Executive Council or its committees".
The Williams Commission discussed the issue of an exemption for Cabinet records as follows:
... the deliberations and decision-making processes of the Ontario Cabinet have traditionally been shielded from public view, and they have been in all other parliamentary jurisdictions. There are a number of reasons for accommodating this tradition in a freedom of information law by expressly exempting certain kinds of Cabinet materials from the general right of public access. First, the routine disclosure of Cabinet deliberative materials would bring an abrupt and, in our view, undesirable end to the tradition of collective ministerial responsibility. ... The requirement that each member of the Cabinet assume personal responsibility for government policy ensures that all members of the government of the day can be held accountable to the public, and encourages frank and vigorous exchanges of views in Cabinet discussions. The tradition of confidentiality of Cabinet discussions can also be supported on the basis that it permits public officials to provide the Cabinet with candid advice. Further, there is an evident public interest in ensuring that the decision-making processes of the Cabinet can be conducted as expeditiously as possible. (Vol. 2, p. 284-285)
The Williams Commission went on to attempt to define what constitutes a Cabinet record in its recommendation, which is, by and large, reflected in the current wording of subsection 12(1). The ORA noted that this wording permitted "too much discretion in which documents could be released and which can not." The IPC thinks that it would be difficult, and perhaps, ill-advised to attempt to more narrowly define Cabinet records in the Act . However, the IPC also believes that the Commissioners Orders relating to this exemption are working to bring the meaning of this exemption into clearer focus.
The ORA indicated that "it should be mandatory [for] ... the Coord. [to] contact the Executive Council to seek its views [on] ... each request". As currently worded, subsection 12(2) does not envisage consultation with the current Executive Council on the application of the exemption. Under Clarification VI (p. 45) the IPC has attempted to address this point.
The next exemption which the ORA thought was too broad is the law enforcement exemption under section 14. The ORA indicated that this provision "requires a complete overhaul to eliminate those clauses which do not deal with pure law enforcement matters, but rather deal with health and safety concerns and should be better dealt with under Section 20."
The only provision of this exemption that specifically deals with "health and safety concerns" is subsection 14(l)(e) which states:
14.(1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,
(e) endanger the life or physical safety of a law enforcement officer or any other person.
The rationale behind this provision is to ensure that an institution carefully examine all consequences of disclosure, including the possible endangerment of affected individuals, before making a decision. As noted in the Williams Commission report, "the effect of erring on the side of too much disclosure in law enforcement matters may have very severe consequences for affected individuals." (Vol. 2, p. 296)
Should the Committee determine that it wants to amend the law enforcement exemption, it is recommended that extensive consultation be conducted with law enforcement agencies.
The ORA also indicated in its brief that subsections 14(3) and 2 1(5) are too broad. Specifically, the organization stated that:
These sections permit a Coord. to refuse to confirm or deny the existence of records. This power should be permitted only in extreme cases since exemptions already exist to deal with many of the situations which may come up. Safeguards must be provided to protect the public against abuses.
The IPC agrees that both of these provisions should be narrowly applied. They should only be invoked when the mere disclosure of the existence of a record would jeopardize a law enforcement matter, in the case of subsection 14(3), or would constitute an unjustifiable invasion of personal privacy, in the case of subsection 2 1(5).
The ORA considered the exemption regarding solicitor-client privilege (section 19) to be "too vague to be able to be applied effectively." This matter was discussed by the Williams Commission and has been dealt with in many of the Commissioners Orders. The IPC believes that these Orders will serve the purpose of more clearly defining and restricting this exemption. As the body of decisions grows over the years, institutions will be able to use these Orders to guide their actions.
If the Committee wants to amend section 19 to more narrowly focus this exemption, it is suggested that it review both the Williams Commission's recommendations and the IPC Orders which have addressed solicitor-client privilege.
According to the ORA, section 49 should be eliminated as it is "repetitive" and "cumbersome to the requester". As noted in the MBC Manual:
While most of the exemptions are in Part II of the Act (Access to Information), section 49 falls in Part III (Protection of Individual Privacy).
Section 49 sets out the grounds for refusal to disclose personal information to the individual to whom the information relates. ... In contrast section 21 sets out the circumstances where personal information may be disclosed to a requester other than the individual to whom the personal information relates. (MBC Manual, p. 4-28)
The Williams Commission noted that:
It is evident that the individuals interest in having full and complete access to all government files containing information about him must yield, on occasion, to the public interest in permitting the government to maintain confidentiality with respect to certain kinds of files. Thus, there must be some exemptions to the general principle of allowing data subjects access and correction rights. (Vol. 3, p. 711)
The IPC thinks that section 49 plays a necessary and distinct role within the Act The elimination of section 49 would have significant consequences, which the Committee should study before adopting this recommendation. Technical Issue X (p. 22) addresses the only concern the IPC has about this provision.
15. Sections 21 and 42 of the Act should be combined. (OWA)
Section 21 of the Act is a mandatory exemption which is only applied when there is a request for disclosure of personal information by someone other than the individual to whom the information relates. On the other hand, section 42 sets out the rules for disclosure of personal information when there is no access request under the Act In other words, section 42 addresses disclosure during the normal course of business of an institution (see recommendation 16 for further discussion).
In its brief, the Office of the Worker Adviser argued that the combining of these two sections would "eliminate confusion" that currently exists. While acknowledging the potential confusion caused by subsection 42(a), given the distinct purposes of these two provisions, it is difficult to understand how an amalgamation of the sections would alleviate any confusion surrounding disclosure of personal information. Further study of this idea is required in order to identify all the potential implications of this recommendation.
The Committee may want to recommend that the Minister of Labour and the Workers Compensation Board address some of the OWAs concerns regarding the lack of stringent tests under section 77 of the Workers Compensation Act.
16. Amend section 42 so that personal information can be released only when there has been consent or where a statute expressly authorizes such a release. (OWA)
As noted above, disclosure of personal information under section 42 is not dependent upon an access request under the Act The Williams Commission recognized that there may be instances, aside from access requests, when it may be desirable or required for personal information to be transferred from one government agency to another, or even disclosed to a third party. As the Commission noted:
... it would be both impractical and undesirable to adopt an absolute principle that information concerning individuals cannot be transferred from one government agency to another (or, in appropriate cases, from government agencies to individuals or institutions outside government). (Vol. 3, p. 694)
The Commission went on to identify some of the exceptional cases when transfer or disclosure may be considered appropriate. These exceptions have been codified in section 42. To reduce the scope of this provision, as suggested by this recommendation, could severely hamper the governments ability to conduct its business.
As it is not always possible or practical to obtain consent (e.g., disclosure by a law enforcement institution to a law enforcement agency, disclosure to the Government of Canada in order to facilitate the auditing of shared cost programs, etc.), to implement this recommendation, amendments to existing legislation and possibly the introduction of new legislation would be required. Careful consideration of this recommendation and its implications should be undertaken prior to its adoption.
17. Exemptions must be time-restricted. (KR, CA, CPSA)
This general recommendation was made by Mr. Rubin, however, similar but more specific recommendations were also put forth by Professor Armstrong of York University, and the Canadian Political Science Association (CPS A). Both the Professor and the CPSA recommended that the terms of the exemptions from access to Cabinet documents, material concerning law enforcement, intergovernmental relations, espionage, terrorism, and trade secrets, should be set at ten years.
Currently, only the exemptions relating to Cabinet records (section 12) and advice to government (section 13) have exceptions based on the age of the records in question (i.e., both of these exemptions do not apply to records that are more than 20 years old).
For the exemptions under sections 14 through 16 (law enforcement, relations with other governments, and defence), there are no time limits on how long these discretionary exemptions may be applied. Professor Armstrong argued that without a specified time limit, these exemptions could "be extended long after any harm from disclosure could realistically be anticipated." Hypothetically, this is possible under the Act
Section 17 provides a mandatory exemption from disclosure of certain third party information where disclosure could reasonably be expected to cause harm. Professor Armstrong noted that this section "requires the exemption, in perpetuity, of any record that discloses trade secrets and has been extended to cover the field of labour relations by an amendment passed in 1989."
The IPC recognizes that the application of exemptions in perpetuity poses a problem for historical or archival material. This issue is discussed further under recommendations 38 and 39. To obtain another view of this problem, the Committee may want to discuss the issue of time restrictions with the Archives of Ontario.
However, the Committee should also note that the Act does not currently stipulate that the exemptions must be applied "in perpetuity" or even for a prescribed period of time. In addition, while the exemptions, other than sections 12 and 13, do not have explicit time limits specified in the Act, a determination on the exemptions applicability must be made on a case-by-case basis each time access to a record is requested.
18. Notes taken by tribunal members during hearings, draft decisions, and anycorrespondence between tribunal members about their decisions, should be exempt from the Act akin to the exemption provided judges notes under subsection 65(3) of the Act (AT, EA)
Subsection 65(3) of the Act currently reads:
65. (3) This Act does not apply to notes prepared by or for a person presiding in a proceeding in a court of Ontario if those notes are prepared for that persons personal use in connection with the proceeding.
In its submission, the Environmental Assessment Board noted that the previous government intended to address this issue by introducing an amendment under Bill 169 as follows:
(5) Section 65 of the Act is amended by adding the following subsection:
(4) This Act does not apply to notes prepared by or for a member of a tribunal that is exercising a statutory power of decision if those notes are prepared for that persons personal use in connection with a proceeding in which the tribunal is required by law to hold a hearing.
However, the Board thought that this proposed amendment did not go far enough and recommended that the "exchange of information among panel members and with staff, draft decisions, and other similar material must also be exempted, if considered and expeditious decision-making is to be facilitated."
In a joint submission to the Standing Committee, five other tribunals recommended that subsection 65(3) of the Act be amended as follows:
This Act does not apply to notes, including draft decisions, prepared by or for a person presiding in a proceeding in a court or other quasi-judicial tribunal if those notes are prepared for use in connection with the proceeding in question.
Should the Committee want to recommend exempting tribunal members notes and draft decisions, it is suggested that the exemption be as limited and specific as possible so that it would be in accordance with the principles set out in subsection 1(a) of the Act.
19. Define "supply" in subsection 17(1) of the Act in such a way as "to protect business information given government from disclosure if it meets the other criteria of section17, regardless of whether it was provided because of a negotiated agreement or a mandatory provisions of another statute excluded from section 67(3)." (CMA)
Presumably, this recommendation results from the fact that the Commissioner has taken what the Canadian Manufacturers Association considers a "narrow interpretation " of the word "supplied" in subsection 17(1).
Subsection 17(1) of the Act states:
17.(1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (emphasis added)
(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
(b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied;
(c) result in undue loss or gain to any person, group, committee or financial institution or agency; or
(d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer, or other person appointed to resolve a labour relations dispute.
Regardless of the interpretation of "supplied", to fall under this exemption, the information has to pass the "in confidence" test and one of the four "could reasonably be expected to" harm tests outlined above. Without further study, it is not possible to determine the effect the recommended change in definition would have on the type or amount of information that would be disclosed.
20. Where exemptions are cited, a list with the titles of totally exempt documents and of severed documents should be provided to the requester. (KR)
The Williams Commission noted that:
When a requester has been denied access, it is important that he be advised of the reasons for the refusal. He can then make an informed decision as to whether he wishes to obtain an independent review of the decision. ...
Although the obligation to provide reasons for denials may appear to be burdensome, we believe that it will be instrumental in encouraging careful determinations of decisions to deny access. Further, conscientious explanations of the basis for refusal may reduce the number of situations in which the exercise of appeal rights will be thought to be necessary. (Vol. 2, p. 267-268)
Section 29 of the Act stipulates the contents of the notice of refusal that must be sent to requesters. As currently worded, this section does not clearly require institutions to describe the records which are severed or exempted.
In several Orders, the Commissioner has noted that it is implicit in this provision that the head provide the requester with a general description of the records responding to the request, and that the head must also advise the requester of the specific sections or subsections relied upon as exemptions.
To address this issue, and to bring the Act into line with the recommendations of the Williams Commission, the IPC recommended an amendment to section 29 in Clarification X (p. 53-55).
21. There should be "no clause that allows exemptions to be added or amended without province-wide notification, discussion and hearings." (KR)
TheAct currently does not contain a provision which would allow exemptions to be added or amended without the approval of the Legislature.
22. Exemptions must be subject to injury tests. (KR, CPSA)
Most of the exemption provisions of the Act already contain elements of injury or harm tests. Sections 14, 15, 16, 17, 18, 20 and 21 all contain tests where there would have to be a potential injury or harm for the provisions to apply.
However, there are some exemptions in the Act that do not contain injury tests. These provisions are for Cabinet records (section 12), advice to government (section 13), solicitor-client privilege (section 19), and information that is soon to be published (section 22).
When reviewing the ramifications of this recommendation, the Committee should examine the feasibility of requiring injury or harm tests for all exemptions. It is also suggested that all the potential implications of changes to the current tests be identified and studied before any action is taken.
23. The principle of severance found in section 10 should not be limited to "reasonable" severance as this places an emphasis on maintaining exemptions. . (KR)
Subsection 10(2) of the Act currently reads as follows:
10.(2) Where an institution receives a request for access to a record that contains information that falls within one of the exemptions under sections 12 to 22, the head shall disclose as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemption.
The impact of deleting "reasonable" from this provision is unknown as the reasonableness of the severance is likely implicit in the provision.
24. The "soon to be published" exemption should be deleted as it is leading to abuse and delays in record release. (KR)
Subsection 22(b) of the Act provides a discretionary exemption for information that the head believes will be published within 90 days of the request. Should the requester question the heads decision regarding the applicability of this exemption, he is free to appeal the decision to the Commissioner. In an appeal the head will be required to prove, to the Commissioners satisfaction, that the exemption applied because there were "reasonable grounds" for the belief that the information would be published within 90 days or within a period necessary for printing or translating.
The IPC suggested, through Clarification IX (p. 5 1-52), that the Act be amended to make this provision, and the heads obligations, more explicit.
25. Amend subsection 18(1) to allow the Ontario Public Service Employees Union to garner information to enable the union to bargain new technology in the workplace. (OPSEU)
The Ontario Public Service Employees Union (OPSEU) noted that if the government considers legislation such as "a technology bill of rights", much of subsection 18(1) could contradict an advance-notice provision, or interfere with negotiations on the type and design of hardware, processes, etc. Without specifics on the type of exception proposed, it is not possible for the IPC to provide any meaningful comment on this recommendation.
26. Establish shorter time limits for response to requesters. (KR, CDNPA)
Under subsection 26(a) of the Act, institutions must give written notice to the requester regarding whether or not access to the record or part thereof will be given, within 30 calendar days after a complete request is received. The CDNPA recommended that this response time be shortened to 10 days, while Mr. Rubin suggested 20 days.
Time limits are, to a large extent, arbitrary. Different jurisdictions set different limits depending upon what is considered reasonable. When discussing the introduction of time limits, the Williams Commission stated:
Effective implementation of a freedom of information statute is encouraged by the adoption of time limits within which responses to requests should be made.
... while the time limits should not impose onerous administrative burdens on government. A maximum period of thirty calendar days is recommended.... We further recommend that the statutory time period be reconsidered and reduced once appropriate administrative machinery for dealing with requests has been developed, and experience in implementing the statutory provisions has been acquired. (Vol. 2, p. 266-267)
When considering the viability and consequences of this recommendation, the Committee should determine the feasibility of requiring institutions to respond to requests within a time frame shorter than 30 days.
27. No statute should override the Act. (KR, PEP)
This is, in essence, a recommendation to repeal subsection 67(3) of the Act. This subsection identifies the confidentiality provisions of other statutes that prevail over the Freedom of Information and Protection of Privacy Act. 1987, as amended.
Subsection 67(3) was amended with the passing of Bill 84 ("An Act to amend the Freedom of Information and Protection of Privacy Act, 1987 and certain other Acts in respect of Confidentiality Provisions"). Before that Bill was introduced the Standing Committee on the Legislative Assembly, in accordance with subsection 67(1), conducted an extensive review of confidentiality provisions.
All the acts listed in subsection 67(3) were determined, by the Legislature, to be of a sufficiently unique nature that their confidentiality provisions should prevail over the Freedom of Information and Protection of Privacy Act.
As this is a matter that has already been extensively reviewed, the Committee may want to reexamine the findings of the previous Standing Committee before it takes any action on this recommendation.
28. That the Acts standards for disclosure should prevail over those of the Workers Compensation Act. (OWA)
As the OWA stated in its brief, section 77 of the WCA provides for limited access to information concerning a worker when there is an issue in dispute" regarding a decision made by the WCB. It is important to note that as the WCA is not listed in subsection 67(3) of the Act, technically, the provisions of the Act do prevail over the WCA However, subsection 42(e) states:
42. An institution shall not disclose personal information in its custody or under its control except,
(e) for the purpose of complying with an Act of the Legislature or an Act of Parliament or a treaty, agreement or arrangement thereunder.
This provision recognizes that there may be statutory provisions (e.g., section 77 of the WCA) which affect an institutions routine disclosure of information (i.e., disclosure when there is no access request under the Act This provision was recommended by the Williams Commission and was adopted, unchanged from the first draft, by the Legislature.
As noted under recommendation 16, the OWA supported the ability to disclose information when a statute expressly authorized such a release, and yet, to address the difficulties described by the OWA within the confines of the Act it is likely that subsection 42(e) would have to be substantially amended. Such action would likely have significant effect on the ability of some government agencies to effectively operate or to discharge their responsibilities.
29. Add "a general application section that directs those who handle the information or records to give access to information rather than denial if there is any legitimate question as to which of the two is appropriate in the circumstances." (CDNPA)
Without a clear definition of what would constitute a "legitimate question", it is difficult to understand the scope of this recommendation. However, it would appear that the CDNPA is requesting an override which would require a head, in all instances where he cannot apply an exemption unequivocally, to release the requested information.
The IPCs preference on this subject regarding personal information was noted by the Commissioner (then Assistant Information Commissioner) in his keynote address at the 1990 "Key to the Community" conference:
I feel safe in suggesting that institutions err on the side of privacy when making decisions regarding disclosure of personal information to anyone other than the individual involved.
A decision not to disclose personal information can be rectified easily by releasing it at a later date. However, if the information is wrongfully disclosed, there is no way of retrieving it, or correcting an invasion of someones personal privacy.
However, caution must be used so that the same arguments are not applied to general records as are applied to personal information. The Act provides that the burden of proving that an exemption applies rests with the institution. In addition, one of the purposes of the Act is to provide a right of access to government information. Therefore, a reasonable argument could be made that in certain circumstances, a head, when unclear on the applicability of a discretionary exemption, should err on the side of access to general records.
30. The Act should be amended to provide agencies some protection against persons who may be considered "nuisance" requesters. (SSMPS)
The Sault Ste. Marie Police Service defined "nuisance" requesters as those who repeatedly request the same information in hope that a subsequent request might provide further information, or those who attempt to frustrate the institution by filing an "inordinate number" of requests.
Specifically, the Police Service recommended that:
The Act should provide that an agency should be able to compare a second or subsequent request from an individual to the previous request(s) and be compelled to release only information that has been added to that record since the date of the last request. The institution would, of course, be required to provide a statement that all the previous information has been released other than information that was protected by still valid exemption rules.
In addition, the Police Service proposed that the Act be amended to allow an institution to appeal to the Commissioner for relief from responding to a request.
The adoption of the Police Services recommendations could fundamentally change how access to records is provided. At present, subsection 10(1) states:
10.(l) Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or the part of the record falls within one of the exemptions under sections 12 to 22.
In addition, by providing the Commissioner with the authority to dismiss requests, the role of the Commissioner would be significantly altered. Essentially, the Commissioner would be asked to judge the quality of a request.
31. Institutions should be able to apply a "blanket" exemption to files without the Freedom of Information and Privacy Co-ordinator having to analyze the entire file. (SSMPS)
The IPC recognizes that there are instances where an exemption applies to a large volume of records. However, it is difficult to see how an institution could determine, with any degree of accuracy, if an exemption applies without reviewing the relevant records in detail.
Subsection 10(2) of the Act (cited under recommendation 23) provides that a denial of access need not apply to the entire file or record, but may be given to parts of a record. This means that when it is determined that some of the information contained in a record may be withheld under one or more of the exemptions, the part(s) of the record which falls under the exemption(s) should be severed. The balance of the record must then be disclosed.
To grant institutions the authority to apply exemptions without requiring a detailed review of the relevant records seems to defeat the whole idea of "limited and specific" exemptions set out in subsection 1(a) of the Act.,. It would also constitute a fundamental change to the Act.
32. All Ontario birth and marriage records should be released into the public domain 75 years from the date of the event. (OGS)
This recommendation raises the difficult issue of when does or should an individuals right to protection of privacy cease. Under the Act personal information means any recorded information about an identifiable individual for the duration of an individuals life, and for a period of 30 years after the data subjects death.
The adoption of this recommendation would mean that personal information could be released, without an individuals consent, while that individual is still alive. Release of such information could, potentially, lead to an invasion of the individuals privacy. It is important to recall that one of the central purposes of this legislation is to protect against such invasions.
33. The Act be amended to strike out any reference to the protection of the privacy of individuals no longer living. (CPSA)
As currently worded, subsection 2(2) of the Act states:
2.(2) Personal information does not include information about an individual who has been dead for more than thirty years.
In effect, this provision is limiting the time period in which the privacy provisions of the Act apply to personal information to 30 years after the death of the individual to whom the information relates. Without this or some other type of limitation, it could be argued that these provisions could be applied to personal information in perpetuity.
To effectively implement this recommendation, several amendments to the Act would likely have to be introduced. Additionally, this recommendation does not eliminate the need to prove date of death in order to obtain access.
34. All Ontario death records should be released into the public domain 30 years from the date of the event. (OGS)
As noted above, subsection 2(2) permits access, upon request, to personal information 30 years after the death of the data subject. To require all death records to be released into the public domain automatically would likely necessitate the introduction of an extremely comprehensive and accurate tracking system on the part of the responsible government institution(s).
However, the IPC would encourage the Committee to address the issue of whether archival and historical records should be specifically recognized under the Act and to examine the terms of the Archives Act, as suggested by the CPSA.
35. Any indices relevant to the birth, marriage and death records in the custody of the Office of the Registrar General should be made freely available to the public. (OGS)
The IPC has not had the opportunity to review the information contained in the indices relevant to the birth, marriage and death records in the custody of the Office of the Registrar General. Consequently, no comment can be made on this recommendation at this time.
36. The definition of personal information should be amended to permit the release of ali material to researchers after a specified time. (CA, CPSA)
Professor Armstrong recommended that the definition of personal information be changed so that such information could automatically be released 75 years after a record containing personal information is created, or 95 years in the case of records containing minors personal information. The CPSA recommended that records containing personal information on adults be automatically disclosed to researchers when the records are at least 60 years old, or 75 years when the records relate to children.
This recommendation raises the same question noted under recommendation 32. In addition, by introducing a provision which deals with the personal information of minors differently from others, the requester would have to prove the age of an individual at the time a record was created. This would likely create problems comparable to having to prove the date of an individuals death, pursuant to subsection 2(2).
However, by establishing a period of time that must elapse from the date of creation before disclosure may occur, researchers and institutions would no longer be required to prove the date of birth or death of the individuals to whom the personal information relates. Should the
Committee want to adopt this idea, it is recommended that the time period be sufficient so that disclosure would not invade an individuals privacy.
37. The definition of personal information should be changed to allow researcher unrestricted access to individual views advanced to government on public policy. (CPSA, CA)
Specifically, Professor Armstrong recommended that the protection accorded personal information should no longer apply to views on matters of public policy volunteered to a government agency by an individual. The CPSA recommended access be granted to all opinions on public policy, regardless of whether the opinion was volunteered or not.
As currently defined, personal information includes the personal opinions or views of individuals, except where the opinions or views relate to other individuals. This provision was not recommended by the Williams Commission, but was first introduced in Bill 34 as it was worded at first reading on April 22, 1986.
If this recommendation is adopted, a researcher might be allowed access to personal information that would be exempt to everyone else. In the IPCs opinion, this would set up a potential double standard under the Act.
38. Extend provision for research agreements to permit researchers access to records containing material covered by exemptions, and not merely to personal information. (CA)
Again, if this recommendation is adopted, a researcher could have access to general records that would be exempt to everyone else. If the Committee decides to address the issue of whether historical or archival records should be handled differently under the Act than current administrative or operational records, or to adopt time restrictions for all exemptions, the problems associated with research agreements should be examined when considering these issues.
39. Introduce provisions so institutions could check the information gathered by researchers under agreements after the fact, rather than having to review records in advance to remove exempt material. (CA, CPSA)
The CPSA suggested that research agreements be given "exit clauses" rather than "entrance clauses" that would deal with the terms under which information could be published, rather than the terms under which researchers could view records.
It is obvious from the briefs of Professor Armstrong and the Canadian Political Science Association that the issues relating to researchers use of the Act, such as the one raised under recommendation 38, are sufficiently unique that they need to be studied further. Included in this review should be a determination of whether additional penalty provisions are required to specifically address the use of information by researchers, as suggested by both Professor Armstrong and the CPSA.
40. Amend the Act to prevent personal information being made available from license plate tracing. (MC)
The Freedom of Information and Privacy Co-ordinator of Mohawk College reported to the Committee that any individual can apply to a Ministry of Transportation office in person, and on production of two pieces of identification and the payment of a $5.00 fee, may obtain the name, address and the telephone number of the owner of a vehicle from a license plate number. However, according to the Ministry of Transportation, telephone numbers are not provided to requesters, and access to vehicle registration information and abstracts on drivers is only granted at the central Keele Street office and not through any MOT office.
The IPC is always concerned when personal information is made publicly available without the consent of the individual to whom the information relates. However, the problem noted in this recommendation is comprehensive and does not lend itself to easy or quick solutions. Should the Committee want to pursue this recommendation, extensive research and consultation with diverse parties, including both government and private sector institutions, will be required.
41. Require ministries to lay out in their reading rooms, for daily inspections, all releasable documents produced. This would include documents which had been previously released under freedom of information requests. (KR)
If adopted, this practice would substantially change how the Act operates. The IPC is unaware of any other jurisdiction that operates in this manner, although Swedens freedom of information scheme does allow for public viewing of incoming correspondence.
The IPC has a concern that it would be extremely difficult to protect personal information contained in government records with such a practice. Additional information on the specifics of this idea are required before the IPC can provide further comment.
42. Each ministry should disclose a list of all studies and policy documents that are accessible under the Act. (OPSEU)
The adoption of this recommendation would likely help provide greater access to government information and to reduce the difficulties some requesters have experienced in obtaining access to the above specified documents.
However, it is not clear from its brief if OPSEU was suggesting that the list be compiled only after documents were disclosed, or if it would identify documents which the government has determined could be made available to the public, irrespective of any access request.
As noted by the Commissioner (then Assistant Information Commissioner), in his address at the 1991 Canadian Access and Privacy Association (CAPA) Conference:
Governments should more regularly and routinely make certain kinds of information available; certain categories of records should automatically be disclosed to the public in advance of any access request being made.
As a first step towards more open government, the Committee may want to consider the idea of requiring all government institutions, not just ministries, to publish, on a periodic basis, a list of all studies and policy documents that are publicly available.
43. Each ministry should indicate the titles of those documents that are deemed confidential and not yet accessible. (OPSEU)
OPSEU indicated that the adoption of the above recommendation would "save a lot of time and expense in situations when someone requests a document that has been exempted under the Act."
While this may be true for some requests, the act of compiling and publishing such a list, in regard to some types of sensitive or personal information, may have a deleterious effect on certain government operations (e.g., law enforcement) or individuals.
The Act has two provisions which address this issue. Subsection 14(3) of the Act states:
14.(3) A head may refuse to confirm or deny the existence of a record to which subsection (1) or (2) apply.
It is most difficult to create a meaningful title for a document without describing, at least in part, the contents of the document. Therefore, it is possible that by simply publishing a title of a confidential document, a law enforcement matter, or identity of an individual involved with such a matter, might be put at risk.
Subsection 21(5) of the Act reads:
21.(5) A head may refuse to confirm or deny the existence of a record if disclosure of the record would constitute an unjustified invasion of personal privacy.
Although this provision specifically refers to the disclosure of a record, again, it may be possible that the disclosure of the title of a record would constitute an unjustified invasion of personal privacy.
At this time it is difficult to see how the adoption of this recommendation would not create problems or risks comparable to those the above cited provisions are designed to address. Of particular concern is how and when would the exemptions apply, and how and when would an affected party or requester be able to appeal institutions decisions. Accordingly, further study of this idea is recommended before any action is taken.
44. All meetings and deliberations leading up to public policy decisions or to decisions about individuais must be recorded. (KR)
As one of the principles of the Act is that government information should be available to the public, it is extremely undesirable if institutions are attempting to circumvent the provisions of the Act by deliberately avoiding documenting decisions in writing.
However, under current legislation, it is up to the institution to determine what information it will record. To extend the Act so it regulates the type of information which must be recorded would fundamentally change the scope of the statute. Accordingly, should the Committee determine that it wants to pursue this recommendation, the IPC would be pleased to provide further comment at that time.
45. Reverse freedom of information practices "allowing special third party corporate bodies to be pre-notified about releases should be dropped." (KR)
Subsection 28(1) of the Act provides that the head, before granting access to a record, must notify all affected parties. By exempting corporate bodies from the notification provisions, a double standard would be set up under the Act whereby corporations would be treated differently from all other parties.
46. Where psychologists are employed:
Independent working files should be required.
These should be officially designated as a personal information data bank and its description should be published or made available to the public.
Access to these riles should be restricted to psychologists, those they supervise, and other institutional employees that they designate. (OBEP)
All issues surrounding health-related information are currently being examined by the Ministry of Health in the context of the proposed "Health Care Information Access and Privacy Act". The Ministry has indicated that the Act may deal with, among other things, the health records maintained by psychologists.
Release of Personal Information to News Media
47. The Act should be amended to clearly define the publics right to know the identity of a crime victim in relation to that victims right to privacy. (SSMPS)
According to the Sault Ste. Marie Police Service, an explicit definition would provide for uniform release of information, and would ensure that all police agencies have a clear understanding of their obligation to protect the privacy of crime victims.
While the IPC recognizes that the release of personal information to news media has troubled some institutions, a difficulty in drawing clear distinctions between public access and individual privacy arises in the absence of fact situations. It is hoped that when the IPC addresses these issues in Orders, the proper balance between access and protection of personal information will become clearer.
48. Amend the Act to require, on a timely basis, release by the police of a basic description of events to which they respond, including information which identifies victims of crime, witnesses to crime, witnesses to events to which the police respond, those being investigated by the police, and those accused of crime. The only exceptions to this would be when the release would involve a reasonable apprehension of harm to the person so identified, or a reasonable apprehension that a suspect so identified would flee the jurisdiction on learning of an investigation into his or her activities. (CBC)
To amend the Act so that the personal information of crime victims or witnesses is disclosed, except in certain circumstances, would be to entirely reverse the principle on which the protection of privacy scheme in Ontario is based. In addition, this recommendation could set up a situation where certain classes of individuals (e.g., crime victims and witnesses) are treated differently under the Act from everyone else.
Should the Committee determine that the release of personal information in the context of law enforcement activities is not adequately addressed under the Act it is recommended that this issue be carefully studied before any action taken.
49. The Act should be amended to make certain institutions immediately disclose information that has "an immediacy and urgency as far as the publics right to know is concerned." (CDNPA)
As discussed under recommendation 12, the Act already has two provisions which address public interest. Additional information on why these provisions are considered inadequate is required before the IPC can make any further comment on this recommendation.
50. Amend section 61 of the Act to provide "an offence for failure to provide access where such is appropriate." (CDNPA, CBC)
In its discussion of sanctions for non-compliance, the Williams Commission noted:
An argument often made in support of the imposition of penal sanctions is that, in the face of sanctions for disclosure, ... it is necessary to create an offence of non-disclosure in order to ensure that public servants will not simply choose non-disclosure as a matter of course in order to be certain to avoid any risk of penal consequences. Although there is some force in this argument, to give effect to it would place public servants in a very difficult position indeed. (Vol. 2, p. 383)
If the Committee determines that an offence provision for failure to provide access should be introduced, it is strongly recommended that extensive research be undertaken to identify the feasibility of such action and its consequences. The IPC would be pleased to provide additional comments at that time.
51. Establish penalties for non-compliance with specified timeframes. (KR, CDNPA, ORA)
The IPC recognizes that Part II of the Act does not provide a procedural mechanism to encourage institutions to adhere to the statutory time requirements. Policy Change IX (p. 117) addresses this problem through a suggested amendment to section 29.
52. Introduce a penalty for failure to maintain effective and proper manual and computer record practices (e.g., including inventories of computer holdings). (KR)
While there is a need for effective and proper records management within the government, the Act may not be the correct place to regulate these practices. Should the Committee wish to address the records management issues raised by Mr. Rubin, it may want to consult with the Records Council to determine the most appropriate means of dealing with this recommendation.
53. Fines for offences should be increased to up to $100,000 with the possibility of up to two years imprisonment. (KR)
Subsection 6 1(2) currently sets the penalty for an offence under the Act at a fine not exceeding $5,000. The adoption of this recommendation would dramatically alter the nature of an offence. It is suggested that the Committee examine the offence provisions of other jurisdictions; freedom of information and privacy schemes to determine whether this recommendation is reasonable.
54. Amend the Act to "establish full de novo judicial review". (CDNPA, KR, CMA)
This recommendation was made by the CDNPA, but the idea was echoed in the briefs made by Mr. Rubin and the CMA. In its discussion of the exemption offered under subsection 17(1), the CMA argued that this type of review is "necessary to provide a process that is, and is clearly seen to be independent of government".
Sections 50 to 54 of the Act outline the appeal process to be followed by appellants and the IPC. Subsection 54(1) provides the Commissioner with the authority to make an Order disposing of the issues raised by the appeal. In addition, the position of the Commissioner, as an officer of the Legislature, was specifically designed to be independent of the government.
Under the Act, there is no automatic right of appeal from a decision of the Commissioner to a court. However, a judicial review proceeding may be brought before the Ontario Divisional Court "where it is alleged that the Commissioner has made a serious procedural error, has acted on inadmissible evidence or has exceeded his jurisdiction." (MBC Manual, p. 6-4)
The introduction of routine full de novo reviews would have significant implications for the freedom of information and protection of privacy scheme in Ontario. It is recommended that the Committee thoroughly study the impact of this idea on all parties involved (i.e., requesters/appellants, institutions, affected persons, the IPC and the courts).
55. Barring full de novo judicial review, "a quasi-judicial commission with powers to order release of information if deemed to be of public value" should be established.(CDNPA)
It is not clear from the CDNPAs brief what kind of body is being recommended, and whether it is to work in conjunction with the IPC or in lieu of the Commissioners office.
As the IPC may be considered a quasi-judicial body with powers to order the release of information through a public interest override provision of the Act confusion would likely arise if another body with similar authority was created.
56. Users should have the right to choose either a hearing at the LPC or in Divisional Court of Ontario. (KR)
The introduction of a dual appeal process, as suggested by this recommendation, would have serious implications for all parties concerned. The most obvious are users confusion over what would be the most beneficial and/or appropriate option given the circumstances of their appeal, and the costs to users for legal counsel. The Committee should study all of these implications before it makes its recommendation.
57. The two-stage process of mediation, followed by an inquiry stage should be more precisely spelled out in the law, with the option of private or publicly conducted mediation or inquiries. (KR)
Section 51 and subsections 52(1) through (14) outline the mediation and inquiry process currently required by the Act. Without additional details on the scheme proposed, the IPC cannot provide any meaningful analysis or comment on this recommendation.
58. The applicant should have access to the legal representations of other parties. (KR)
In Order 207, made by the Commissioner (then Assistant Information Commissioner) on November 27, 1990, this matter was discussed as follows:
A person has made a request for a record and an institution has denied access to it. The person appeals the decision denying access to the Commissioner who must decide if the appellant is to receive access to the record. If an appellant were provided with access to the report or to other information that would disclose the content of the record, before the decision on access was made, the appeal would be redundant. I believe that this is one of the reasons why the Legislature adopted subsection 52(13) of the Act. Subsection 52(13) of the Act reads as follows:
The person who requested access to the record, the head of the institution concerned and any affected party shall be given an opportunity to make representation to the Commissioner, but no person is entitled to be present during, to have access to or to comment on representation made to the Commissioner by any other person. (emphasis added)
Section 52 and in particular subsection 52(13), was discussed by Commissioner Sidney Linden in Order 164 (Appeal Number 890056), dated April 24, 1990, at page 21 where he stated:
... the words [in subsection 52(13)] "no person is entitled" to see and comment upon another persons representation mean that no person has theright to do so. In my view, the word "entitled", while not providing a right to access representations of another party, does not prohibit me from ordering such an exchange in a proper case.
... the Statutory Powers Procedure Act does not apply to an inquiry under the Freedom of Information and Protection of Privacy Act. 1987. Thus, the only statutory procedural guidelines that govern inquiries under the Freedom of Information and Protection of Privacy Act. 1987 are those which appear in the Act.
... while the Act does contain certain specific procedural rules, it does not in fact address all the circumstances which arise in the conduct of inquiries under the Act By necessary implication, in order to develop a set of procedures for the conduct of inquiries, I must have the power to control the process. In my view, the authority to order the exchange of representations between the parties is included in the implied power to develop and implement rules and procedures for the parties to an appeal.
Clearly, procedural fairness requires some degree of mutual disclosure of the arguments and evidence of all parties. The procedures I have developed, including the Appeals Officers Report, allow the parties a considerable degree of such disclosure. However, in the context of the statutory scheme, disclosure must stop short of disclosing the contents of the record at issue, and the institutions must be able to advert to the contents of the records in their representations in confidence that such representations will not be disclosed.
I agree with [former] Commissioner Linden that there is no right of access to the representations made in the course of an inquiry. In my view, the Commissioner or his/her delegate has the fundamental power to control the inquiry process.
The IPCs comments concerning an appellants right of access to other parties representations is outlined in the above cited Order. However, the Committee should note that such requests for access are considered on a case-by-case basis.
59. Applicants should have 60 days instead of 30 days in which to appeal government access decisions. (KR)
The IPC recognizes that, under special circumstances, an individual may not be able to file an appeal within the existing 30 day time limit. Policy Change XI (p. 123-125) suggests an amendment that would expressly grant the Commissioner the power to extend the filing period stipulated in subsection 50(2) of the Act.
60. The government should establish clear guidelines for what is required to meet the test of "burden of proof". (OPSEU)
Section 53 of the Act states that:
53. Where a head refuses access to a record or a part of a record, the burden of proof that the record or the part falls within one of the specified exemptions in this Act lies upon the head.
The Act does not provide any guidance on what is required to meet the burden of proof test set out in this section. The Williams Commission addressed this point as follows:
In all proceedings relating to the withholding of documents by governmental institutions, the burden of persuading the adjudicator that the document is exempt under the legislation should fall on the institution. The imposition of a burden on the requester to prove that the document, which he has not seen, is not exempt would erect a barrier to the exercise of access rights under the statute. (Vol. 2, p. 360-361)
If the Committee thinks that guidelines are required to define "burden of proof", it is suggested that this matter be addressed by the Legislature under the Act. A potential conflict of interest may be created if the guidelines were to be established by a governmental institution.
61. The Commissioners decisions should be made more easily accessible to the public.(OWA)
The IPC agrees that the Commissioners Orders should be as accessible as possible. To that end, all of the Orders are available to the general public upon request. Also, as noted in recommendation 8, the IPC is currently attempting to make its Orders more "user friendly".
62. The audit and investigative function of the Commissioner "to scrutinize open government and privacy protection measures and proposals has to encompass both the public and private sectors." (KR)
The IPCs comments regarding the extension of the Act into the private sector may be found under the discussion of recommendation 1. However, the IPC recognizes that there is a need to more precisely codify the Commissioners authority to review and investigate institutions.
Accordingly, an amendment to the Act is proposed under Policy Change XV (p. 138-143). This amendment would stipulate the Commissioners authority to conduct, at his own initiative or following a public complaint, reviews of access procedures and records of personal information, and investigations of the practices of government institutions that may breach the privacy principles of the Act.
63. The Commissioner has to be able to order the cessation of ineffective and abusive record practices. (KR)
The proposed amendment to the Act outlined in Policy Change XVI (p. 144 - 147) would, hopefully, address this issue.
64. The Commissioner has to be able to order the creation of written or computer records of decisions undertaken where oral communications were deliberately done. (KR)
In Order 99, former Commissioner Linden noted that while there is, generally, no duty to "create" a record in response to a requester, creation of a record is sometimes consistent with the spirit of the decisions and enhances the purpose of the Act in respect to access. However, currently the Commissioner has no express statutory authority to order an institution to create a record when no record exists.
Further study of this recommendation and its implications should be undertaken before any action is taken in this direction.
65. Restrict practices like electronic monitoring, computer tracing, cross matching, personal testing and transborder flow of personal information. (KR)
Under section 59 of the Act, the IPC is mandated to commission or engage m research into matters affecting the carrying out of the purposes of the Act and to provide comment on the privacy protection implications of proposed legislative schemes or government programs.
The IPC is aware of, and concerned about, the issues mentioned above and will over time be conducting research into their access and privacy implications. The Committee has already received the IPCs background paper on computer matching, referred to as "cross matching" above. The subjects of "personal testing" (i.e., drug testing, psychological testing, etc.) and electronic monitoring, are currently being reviewed by the IPC. The other topics will be addressed as resources and/or demand dictates.
Should the government determine that legislation is required for these areas, the IPC will provide comment in accordance with subsection 59(a) of the Act.
With regards to Mr. Rubins specific recommendations in response to the IPC's paper on "Privacy and Computer Matching", as noted in the report to the Standing Committee, the IPC thinks that any action taken at this time would be premature as the subject has not been thoroughly studied within the context of the Ontario public sector. The establishment of a Task Force is recommended so it may examine all options, including Mr. Rubins suggestions.
Several groups who appeared before the Committee made very specific recommendations regarding the fees charged under the Act. Section 57 of the Act establishes the manner in which fees may be charged, including exceptions, fee waivers, and a review by the Commissioner.
Sections 6 through 9 of Ontario Regulation 516/90 outline the actual amounts of the fees to be charged.
The IPC addressed its concerns regarding the fee provisions in the proposed amendments to the Act discussed under Technical Issue XI (p. 24), Clarification XV (p. 64-65), and Policy Change IX (p. 117-118).
66. "Low volume" agencies like the District Health Councils should be identified coliectively rather than individually under the Act. (DHCs)
The Freedom of Information/Protection of Privacy Committee of the District Health Councils provided the Standing Committee with a brief outlining its concern regarding the ability of the District Health Councils (DHCs) to effectively and efficiently administer the Act.
The District Health Councils noted that they had "no concerns about the basic validity" of the Act, and indicated that the Councils were not interested in "shirking their legal responsibilities" under the Act. However, they did recommend that the Standing Committee examine the possibility of designating one individual as the Freedom of Information and Privacy Co-ordinator for all the DHCs. As currently identified in the Schedule under the Regulation, each DHC is considered a separate agency under the Act, and each must have its own Freedom of Information and Privacy Co-ordinator.
Should the Committee wish to consider this recommendation, the IPC refers the Committee members to the findings of the "Freedom of Information and Privacy Survey of Ontario Government Institutions" for additional background information. This document was supplied to the Standing Committee by the IPC as part of its initial report.
67. Simplify the Act so that the language and structure is more "accessible to injured workers". (OWA)
According to the Office of the Worker Adviser, the wording and organization of the Act makes "it virtually impenetrable to the average injured worker."
The IPC agrees with the OWA that it is of the utmost importance that the Act be "accessible and understandable to all." Accordingly, the IPC would welcome any amendments which would make the Act more understandable.
68. Provide proper training for those individuals who are responsible for interpreting the Act. (OPSEU)
OPSEU made this recommendation in the context of concern for the safety of its members in the workplace. The union recognized that the Act provided "measures to protect the privacy of OPSEU members under Sections 14(1)(e), 14(2)(d), 20, and 49(e). However, heads who are called upon to apply the Act may not be aware of these protections."
OPSEU was particularly concerned about the need for proper training for all staff regarding the public interest override provided by section 23, when clients, patients, or inmates with whom staff will be dealing are known to be dangerous.
Both the IPC and the MBC have provided training to the institutions designated under the Act. It is recognized that the education of all parties involved with the statute is not a time-limited function. The IPC, pursuant to subsection 54(e), is committed to providing public and institutional education programs on an on-going basis.
Should the Committee determine that the Act's impact on workplace health and safety issues requires special training sessions, the IPC will provide whatever assistance it can with these sessions.
69. The Information and Privacy Commissioner/Ontario needs to provide greater education to the public at large about the legislation, its aims, its operations, etc. (ORA)
Subsection 59(e) mandates the IPC to conduct public educations programs and to provide information concerning the Act and the Commissioners role and activities.
In an effort to fulfil this mandate, the IPC has developed several brochures, a guide to the agency, a quarterly newsletter, and an introductory video tape which is available to all upon request. In addition, the IPC Speakers Bureau conducts extensive public outreach through public and municipal training programs, public addresses, conferences, etc.
The IPC agrees that there is a need to provide public education about the Act, the Commissioner, and the agency. This is a responsibility the IPC takes very seriously and pursues actively.
Administrative Tribunals Joint Submission
- Grievance Settlement Board
- Ontario Labour Relations Board
- Ontario Public Sector Relations Tribunal
- Pay Equity Hearings Tribunal
- Workers Compensation Appeals Tribunal
Professor Christopher Armstrong ofYork University
Professor W. A. Bogart of the University of Windsor
Canadian Broadcasting Corporation
Canadian Daily Newspaper Publishers Association
Canadian Manufacturers Association
Canadian Political Science Association
Environmental Assessment Board
Professor David Flaherty of the University of Western Ontario
Freedom of Information/Protection of Privacy Committee of the District Health Councils
Hastings County Council
Ministry of Community and Social Services
Municipality of the Township of Tiny
Office of the Worker Adviser
Ontario Board of Examiners in Psychology
Ontario Genealogical Society
Ontario Highway Transport Board
Ontario Public Service Employees Union
Oracle Research Associates Inc.
Parents Empowering Parents
Mr. Ken Rubin
Sault Ste. Marie Police Service