Topic: Legislation

Foreword

On January 1, 1991 the Municipal Freedom of Information and Protection of Privacy Act (the Act) came into force. This statute extended the freedom of information and protection of privacy principles first codified in the Freedom of Information and Protection of Privacy Act to municipal corporations, school boards, public utilities commissions, hydro-electric commissions, transit commissions, police commissions, conservation authorities, boards of health, library boards and other local boards.

The Act has now been in force for three full years. During that time, the Office of the Information and Privacy Commissioner/Ontario (IPC) has closely followed the use, application, and administration of the statute. Now, on the occasion of the review by the Standing Committee on the Legislative Assembly, the IPC is pleased to offer its recommendations for changes and amendments to the Act in this submission.

The IPC’s suggested changes flow from the agency’s experience and observations, and from the assumption that while the Actis working well, there is a need to further advance the purposes and principles of the Act and to make it more workable and understandable for all concerned.

The suggested changes and amendments contained in this report reflect the following four main objectives that the IPC hopes the Standing Committee’s review of the Act will accomplish.

1. Expand access to government records

The public has a right and growing expectation to know what governments are doing and how public money is being spent. Certainly this is a recurring theme in the media, and the IPC has observed a growth in requests for access under Ontario’s freedom of information and protection of privacy schemes.

Governments everywhere are reinventing themselves not only to be more efficient and effective, but also to be more responsive and accessible to the public. In its initiatives about local governments, the Government of Ontario has made a clear commitment to the principle of open government. In his introduction to the Ministry of Municipal Affairs proposal entitled “Open Local Government”, the Minister noted: “The Government is committed to a strong, accountable, open and accessible local government”.

One of the central tenets of the Act is that government information should be available to the public, with limited exceptions. The Act has gone a long way to facilitate public access to government information and to provide more open government. However, the IPC maintains that broader access is possible. Several of the IPC’s suggested changes are targeted at furthering this objective.

2. Strengthen privacy protection

Privacy issues are moving up the public agenda. In the fall of 1992, a nationwide survey was conducted by Ekos Research Associates. The study found that 92 per cent of Canadians were at least moderately concerned about their privacy, with 52 per cent indicating that they were extremely concerned.

According to the Ekos findings, Canadians believe personal privacy is under siege and they want something done about it. While there is no consensus on what should be done, people definitely seek a greater sense of control.

In January 1993, Equifax Canada released the results of its survey on “Consumers and Privacy in the Information Age”. One of the study’s key findings was that most Canadians appreciate the benefits that computers have brought to society, while at the same time, believe there are dangers to personal privacy from the present uses of computers.

The Act clearly establishes, as one of its purposes, the protection of individuals’ privacy regarding their personal information held by the government. Part II of the Act codifies key fair information practices to ensure the protection of that personal information. Although the Act‘s privacy protection provisions generally work well, the IPC believes that these requirements should be strengthened and updated to keep pace with today’s information society, and with the changes in how governments provide services and information to the public.

3. Make the Act more workable and understandable

Like many pieces of legislation, the Act can be confusing and intimidating to the general public. Some of the IPC’s suggested changes focus on streamlining the wording and operations of the Act, without changing the substance of the provisions, to make it more workable and understandable to all who come in contact with it. Only a well-informed public can effectively exercise its rights and take full advantage of the opportunities offered by the Act. The IPC’s hope is that by making the Actmore workable and understandable, it will be more accessible to the public, and easier to use for other public officials working with the statute, thereby improving their efficiency and customer service.

4. Improve the appeals process and clarify the powers of the Information and Privacy Commissioner

The need to improve customer service and efficiency is recognized as a key initiative throughout all levels of government. This has been, and remains, a central objective of the IPC. For the past two years the agency has been continually improving and streamlining its processes.

A number of the IPC’s suggested changes focus on this objective while not fundamentally altering the mandate of the Commissioner. By clarifying the powers of the Commissioner, the IPC’s ability to operate effectively and efficiently would be increased, as would the agency’s ability to respond, in a timely fashion, to our customer’s needs. The IPC believes that by clarifying the powers of the Commissioner, the other objectives will also be advanced.

Information access and privacy protection are entering a new phase in Ontario. It is time to move from thinking about access and privacy as an aside or after-thought, to the integration of access and privacy protection into the everyday business of government organizations. The suggested changes proposed by the IPC offer a way to achieve this by advancing the four objectives outlined above.

The IPC recognizes that Ontario’s access and privacy schemes are now competing for public funds with other urgent priorities. However, the Standing Committee must also recognize that public access to government information and the protection of personal privacy are intrinsic features of government in a democratic society. As the Standing Committee conducts its review, it is crucial to keep in mind that government is the custodian, not the owner, of the information it collects and uses. Between government which gathers information and the citizens who provide it, there exists a virtual trust relationship concerning the data held.

Tom Wright

Commissioner

Explanatory Notes

This submission has been organized to follow the structure and sequence of the Municipal Freedom of Information and Protection of Privacy Act, with the exception of the first eight recommendations. The discussion of each suggested change contains the following sections: Issue, Proposed Amendments, and Rationale. All proposed wording changes to sections have been indicated in bold.

Although the focus of this review is the Municipal Freedom of Information and Protection of Privacy Act, in April of 1993 the IPC was advised by the present Chair of Management Board of Cabinet, that the government had decided it would make any decisions on amendments to the freedom of information and protection of privacy legislation after both statutes were reviewed by the Standing Committee on the Legislative Assembly. Accordingly, the IPC has included under Appendix A several suggested changes to the Freedom of Information and Protection of Privacy Act (the provincial Act) for consideration, in addition to those contained in the IPC submission to the Standing Committee on the Legislative Assembly during its review of the provincial Act.

To facilitate access to specific proposed amendments, a listing of all suggested changes (Appendix B), as well as a section index have been provided.

For ease of reference and understanding, the following abbreviations are used throughout the submission:

  • the Municipal Freedom of Information and Protection of Privacy Act is referred to as “the Act“,
  • the Freedom of Information and Protection of Privacy Act is referred to as “the provincial Act“;
  • the Standing Committee on the Legislative Assembly’s report entitled “Review of the Freedom of Information and Protection of Privacy Act, 1987” dated December 1991 is referred to as “the Standing Committee’s report”; and
  • the Report of the Commission on Freedom of Information and Individual Privacy/1980 entitled Public Government for Private People is referred to as “the Williams Commission report”.

All references to the suggested changes made by the IPC to the Standing Committee on the Legislative Assembly on the occasion of the review of the provincial Act are contained in a report entitled “Suggested Changes to The Freedom of Information and Protection of Privacy Act, as amended” dated January 1991. Copies of this report have been included in this submission under Tab 1 in Binder 1 of the background material provided for the Standing Committee’s reference.

Finally, this submission has been prepared on the assumption that, where appropriate, the proposed amendments to the Actshould also be made to the provincial Act.

Suggested Changes to the Municipal Freedom of Information and Protection of Privacy Act

1. Extending Coverage of the Acts

Issue:

There are a number of public bodies carrying out important public functions which are not currently covered by the Acts. For example, agencies such as hospitals, universities, and social service agencies are not currently covered by the Acts, but they receive public funds and carry out a public function. As well, self-regulated professions are not covered by the Acts although they carry out the public function of regulating providers of consumer services.

Proposed Amendments:

Criteria should be developed to extend the coverage of the Act to other government bodies such as hospitals and universities. As well, coverage should be extended to self-regulated professions. The legislation in British Columbia provides a useful model for extending coverage.

If coverage of the Acts were extended to these bodies, it would make more information publicly available and enhance public accountability. In addition, it would ensure that privacy protection is available for the personal information collected by these bodies. Accordingly, the Acts should be amended to extend coverage to other government bodies.

Rationale:

There are a number of bodies such as hospitals, universities and social service agencies which receive public funds and carry out a public function but are not currently covered by the Act.

As well, self-governing professions carry out a public function and should be more accessible and accountable to the public. These bodies are created by provincial legislation and regulate professions in the public interest. Although these bodies may or may not be receiving public funds, they are carrying out an important public function. For that reason it is in the public interest to make them more accountable. As well, they may possess sensitive personal information which needs the safeguards of privacy protection legislation. Extending coverage would be consistent with the goal of making more information publicly available while at the same time ensuring the protection of personal privacy.

The Williams Commission

It was the Williams Commission’s view that freedom of information legislation should apply to “those public institutions normally perceived by the public to be a part of the institutional machinery of the Ontario government.” (Vol. 2, p. 237) For that reason it did not include hospitals and universities since they are not “commonly thought of as institutions of government.” (Vol. 2, pp. 238-239) However, since the Williams Commission report, other jurisdictions and the Standing Committee on the Legislative Assembly have taken a broader view of which public bodies should be covered.

The Standing Committee on the Legislative Assembly — Review of the Freedom of Information and Protection of Privacy Act, 1987

In its final report, tabled in December 1991, the Standing Committee on the Legislative Assembly did not accept the view that the provincial Act should only apply to those public institutions which are wholly financed from the provincial consolidated revenue fund, or which are commonly perceived to be institutions of the government. The Committee believed that:

… the public has a right to follow public money wherever it may flow, regardless of whether the recipient organizations receive all or only a portion of their funding from the government, and regardless of whether these organizations are commonly viewed as institutions of government. Institutions receiving significant public funds, such as hospitals and universities, should be accountable to the public for the use of those funds. (p. 11)

The Standing Committee recommended:

3. that the Act be extended to cover all “government agencies”. “Government agencies” should be defined in the Act as any agency to which the government appoints at least one member. The Act should also be extended to cover any organization which receives more than $50,000 annually in public funds.(p. 12)

The Standing Committee focused on the amount of money received by an agency as the criteria for extending coverage. A similar approach is used in Saskatchewan and Quebec.

A different approach is used in British Columbia. In deciding what agencies should be covered the government considered not only whether a body was receiving government funds but also whether it was performing a government function. As a result, the legislation in British Columbia includes bodies such as self-regulated professions which perform a public function but do not necessarily receive public funds.

Other Jurisdictions

Saskatchewan

Section 2(f) of The Local Authority Freedom of Information and Protection of Privacy Act, includes in the definition of “local authority”: municipalities; any board, commission or other body that is appointed under municipal acts or that is prescribed; public libraries, boards of education, colleges and universities, hospitals, special-care homes, ambulance boards, or any board, commission or other body that is prescribed or that receives more than 50% of its annual budget from the Government of Saskatchewan or a government institution.

Although the models proposed by the Standing Committee and used in Saskatchewan would broaden the coverage of the Act, the application may end up being broader in scope than intended. It could include in its scope private sector businesses which receive some public funds. This is particularly true of the proposal adopted by the Standing Committee which sets $50,000 as the criteria for extending coverage.

Quebec

Sections 3 and 7 of An Act respecting Access to documents held by public bodies and the Protection of personal information, provides for the coverage of the following public bodies: municipal bodies; school bodies (including universities); health services and social service establishments “which operate with sums of money taken out of the consolidated revenue fund” (e.g., local community centres, hospitals, housing centres and temporary shelters).

Therefore, coverage under the Quebec Act is much broader than in Ontario. This approach focuses on the types of bodies and whether they operate with sums from the consolidated revenue fund.

British Columbia

Perhaps the most straightforward and wide reaching approach is that adopted in British Columbia. This approach was based on a report prepared by Barry Jones, an MLA in British Columbia. The Barry Jones Report — Extending Freedom of Information and Privacy Rights in British Columbia provided the basis for extending coverage in British Columbia.

The Report recommended an extension of freedom of information and privacy legislation to cover public sector bodies outside the government. It extended the legislation to include the broad public sector including municipalities, school boards, hospital boards, police boards, universities, colleges and self-governing professional bodies.

On page 17 of the Report, Mr. Jones stated that:

A major goal of extending freedom of information and protection of privacy legislation is to extend citizens’ information and privacy rights to the broad public sector. In the case of such fundamental rights it is difficult to argue that one publicly funded body which delivers services to the public (e.g. a public school) is different from another publicly funded body which delivers other services to the public (e.g. an independent school which receives significant amounts of public funding).

This statement indicates a focus not just on the funding but on the function being performed. Mr. Jones stated that, in his view, the amount of public funding is only one factor to be considered. Some of the other factors he considered are set out on page 17 of the Report, including:

whether the organization is an agency, board, commission or other body:

  • which has one or more member appointed by the Lieutenant Governor in Council, by a minister, or by a local government or self-governing professional public body; or
  • a controlling interest in the share capital of which is owned by the government of British Columbia or any of its agencies, or by a local government or self-governing professional public body

whether the agency, board, commission or other body is established pursuant to, or performs functions under authority of, an Act or regulations

whether the agency, board, commission or other body delivers services on behalf of the Province of British Columbia or on behalf of a local government.

The suggestions of the Barry Jones Report were adopted in British Columbia. The Freedom of Information and Protection of Privacy Act, 1992, includes the following definitions:

“public body” means

(a) a ministry, branch or office of the government of British Columbia, or

(b) an agency, board, commission, corporation, office or other body designated in Schedule 2,

(c) a local public body

but does not include

(d) the office of a person who is a member or officer of the Legislative Assembly, or

(e) the Court of Appeal, Supreme Court or Provincial Court.

“local public body” means (effective October 1994)

(a) a local government body,

(b) a health care body

(c) an educational body, or

(d) a governing body of a profession or occupation, if the governing body is designated in, or added by regulation to, Schedule 3 (effective May 1995).

The legislation also includes definitions of “local government body”, “a health care body” and “an educational body”. The definition of a “health care body” includes hospitals and the definition of “an educational body” includes universities.

Section 76(2) of the British Columbia Act provides that:

The Lieutenant Governor in Council may amend, by regulation, Schedule 2

(a) to add to it any agency, board, commission or other body

(i) any member of which is appointed by the Lieutenant Governor in Council or a minister,

(ii) a controlling interest in the share capital of which is owned by the government of British Columbia or any of its agencies, or

(iii) that performs functions under an enactment.

The scheme adopted in British Columbia provides a comprehensive approach to extending coverage. A similar model could be used in Ontario. The definition of institution could be revised along the lines of the British Columbia Act to include a local public body. In turn, this could be defined to include a health care body, an education body and governing body of a profession or occupation designated in the regulations.

2. Salaries of Public Officials/Employees

Issue:

Currently, information concerning the salary ranges of government employees is to be disclosed under the Act. However, no provision is made for situations where there is no salary range. This is often the case with the salary of public officials who may be the only person performing a particular function and no salary range is available. The result is that information concerning the compensation paid to public officials is not publicly available. Since public officials and employees are paid from taxpayers’ funds, the public is entitled to know what compensation these persons are receiving.

Proposed Amendments:

The Act should be amended to permit the disclosure of the actual compensation paid to all public employees, including officials and government appointees.

Rationale:

In keeping with the principle that there should be broader access to government information, the IPC believes that details about compensation paid to government management should be publicly available. There is a significant public interest in the disclosure of these salaries and often no salary range has been established.

In the private sector, changes to regulations to the Ontario Securities Act, require publicly traded companies in Ontario to disclose the salaries of their chief executive officer and their four other highest-paid executives. The general rationale for providing for disclosure is to benefit individual and institutional investors that have put money into companies whose shares trade publicly in Ontario.

It seems reasonable that there should be similar accountability for public sector employees. In fact, until the passage of the provincial Act, salaries of public servants in Ontario above a certain amount were a matter of public record.

There have been several attempts to enact legislation to provide for greater access to government salaries. The following private member bills have recently been introduced.

Bill 108, An Act to amend the Law related to the Freedom of Information and Protection of Privacy

Bill 108 was tabled on October 21, 1993 to amend the provincial Act and the Act, to provide access to the salary of public service employees. The amendment, if passed, would have allowed disclosure of the specific salary of an employee.

Bill 114, An Act to provide for the Disclosure of Executive Compensation in the Public Sector

Bill 114 was tabled on November 1, 1993. The explanatory note which accompanied the Bill explained that:

The Bill provides for the disclosure of information relating to the compensation received by the most highly paid officials in government ministries, directors of and officials in Crown corporations and members of a minister’s staff.

Bill 116, the Labour Relations Amendment Act, 1993

Bill 116 was tabled for first reading on November 3, 1993. It would require the Ontario Labour Relations Board to disclose to any person on request information respecting compensation paid to union executives.

Private Member’s Resolution

A private member’s resolution, requesting public disclosure of compensation paid to executives, was debated and declared carried on November 4, 1993. The resolution requested greater disclosure of salary information and indicated that “the Government of Ontario should apply the same standards of accessibility and accountability to its own operations that it applies to individuals and companies in the private sector.”

Other Jurisdictions

Saskatchewan

The Local Authority Freedom of Information and Protection of Privacy Act, provides for disclosure of the salaries of local authorities employees. Section 23(2) of the Saskatchewan Act provides:

“Personal information” does not include information that discloses:

(a) the classification, salary, discretionary benefits or employment responsibilities of an individual who is or was an officer or employee of a local authority.

Nova Scotia

The Freedom of Information and Protection of Privacy Act, 1993 (passed, but not yet in force) also provides for the disclosure of the salary of officers and employees. Section 20(4) provides:

A disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy if …

(e) the information is about the third party’s position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister’s staff.

Quebec

An Act respecting Access to documents held by public bodies and the Protection of personal information, provides for disclosure of the salary of management employees only. With respect to other employees, disclosure of salary range is sufficient to comply with the legislation.

Section 57 of the Quebec Act provides:

The following is public information:

(1) the name, title, duties, classification, salary, address and telephone number at work of a member, the board of directors or the management personnel of a public body and those of the deputy minister, the assistant deputy ministers and the management personnel of a government department;

(2) the name, title, duties, address and telephone number at work and classification, including the salary scale attached to the classification, of a member of the personnel of a public body;…

… in no case may the information contemplated in subparagraph 2 of the first paragraph result in the disclosure of the salary of a member of the personnel of a public body.

It is apparent that a number of jurisdictions have adopted a more open approach to the disclosure of salary information than Ontario. Public sector officials and employees are paid out of the public purse and accordingly there should be greater disclosure of salary information, for the purposes of accountability. The IPC is of the view that access to all public officials’ and employees’ salaries is the best approach.

3. Plain Language

Issue:

As with many statutes, the language of the Act can be difficult to understand, which may cause frustration for users.

Proposed Amendments:

The IPC proposes that the Act be rewritten in plain language.

Rationale:

Plain language is language the public can understand. It is language that is clear, concise, accessible and faithful to its purpose. It is an approach to organizing and writing documents in which the material and the format are clear and understandable to the user.

According to the Plain Language Centre of the Canadian Law Information Council, one quarter of Ontario’s population have difficulty reading. This difficulty is amplified when people have to use instruction manuals, application forms, reports and legal documents.

The use of plain language is becoming more routine for government documents. The Government of Ontario now has a plain language advisor and many ministries are converting documents to plain language. In Australia, a government-implemented Plain English and Simpler Forms Program has been in operation since 1983. Based on the Australian experience, real benefits have accrued: by using plain language, organizations found they were contributing to productivity and eliminating unnecessary activities.

In British Columbia, an important feature of the new Freedom of Information and Protection of Privacy Act, 1992 is that it is written in plain language. The drafters of this legislation attempted, wherever possible, to simplify terms and language.

Rewriting the Act in plain language would have the effect of simplifying the statute. This would make it more understandable and potentially more efficient for all users; accessibility in the broadest sense would be enhanced.

4. Definition of Officer

Issue:

The lack of a definition of “officer” under the Act has lead to confusion regarding disclosure of personal information to municipal councillors.

Proposed Amendments:

The Act should be amended to clarify that “officer”, when referring to a member or members of a municipal council, means:

(a) the head of council (i.e., mayor, chair, reeve, warden);

(b) council acting as a whole;

(c) the “head” of the municipal corporation for purposes of the Act, whether it is the head of council, an individual councillor, a committee of council, or council as a whole;

(d) a member of a municipal council who is executing the duties of an officer of the municipality. (This would be an unusual situation applying only to the smaller municipalities.)

Access by municipal councillors to personal information should be restricted to disclosure of information which is necessary and proper to the performance of the councillor’s duties as an officer of the municipality.

Rationale:

Section 32(d) of the Act provides as follows:

32. An institution shall not disclose personal information in its custody or under its control except,

(d) if the disclosure is made to an officer or employee of the institution who needs the record in the performance of his or her duties and if the disclosure is necessary and proper in the discharge of the institution’s functions.

Section 32(d) states the principle that officers and employees of an institution may have access to records containing personal information where they need the records in the performance of their duties and where the disclosure is “necessary and proper” in the discharge of the institution’s functions.

With respect to municipal councillors, they are not “employees” of the municipal corporation. It is unclear, however, whether they may be considered to be the corporation’s “officers.” In a recent court case involving the Act and a county council, the court expressed doubt that municipal councillors were “officers” (H. v. County of Hastings et al., unreported decision of the Ontario Court (General Division), August 19, 1992). The court implied, however, that it is possible that the Warden of the County (the equivalent of the mayor of a municipality) was an “officer” for the purposes of section 32(d) of the Act.

This amendment would clarify the instances in which a municipal councillor may be considered to be an “officer” of the municipality for the purposes of obtaining personal information contained in records under the custody or in the control of a municipality.

5. Definition of Collect

Issue:

Part II of the Act governs the collection of personal information by institutions. Section 28(2) states:

No person shall collect personal information on behalf of an institution unless the collection is expressly authorized by statute, used for the purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity.

The term “collect” is not defined in the Act. This has resulted in some confusion and conflicting interpretations.

Proposed Amendments:

Define “collect” for the purposes of Part II of the Act.

The IPC proposes that for personal information to be collected, the institution would have to retain recorded information in an organized manner. This means that only records, which are reasonably retrievable by the institution, have been collected within the meaning of the Act. Information, which is received, but not retained beyond the time necessary for a decision to be made not to retain it, should not be considered to have been collected.

Further, information retained in an organized fashion should be considered to have been collected, regardless of whether it was unsolicited or solicited by the institution and regardless of the manner of collection, whether direct or indirect.

Rationale:

Questions have been raised in IPC privacy complaint investigations about all of the elements noted above. Many of the duties of institutions and the rights of individuals are dependent upon whether or not personal information is considered to have been collected. Consequently, a clarification of the elements of collection would be helpful in ending confusion.

6. Archival Records

Issue:

The Act presents significant barriers to access to records held in government archives.

Proposed Amendments:

The Act should be amended to provide that:

records not containing personal information that have been transferred to a government institution’s archives be made available to the public after a specified period of time after the creation of the record — that period should be limited to not more than 20 years to further the principle of open government;

records containing personal information that have been transferred to a government institution’s archives be made available to the public after a specified period of time after the creation of the record — that period should be sufficient so that disclosure would not invade an individual’s privacy (e.g., 100 years).

Rationale:

The problem relating to the application of the Act to archival records is two-fold. The first issue relates to the application of exemptions to general records; the second concerns the protection of personal information contained in archival material.

Access to General Records

For all but two of the Act‘s exemptions, sections 6(1)(c) and 7(3), there are no time limits on how long exemptions may be applied. Without these limits, archival records must be vetted to determine whether an exemption applies, no matter how long it has been in the custody of an archives.

Protection of Personal Information

The second problem that arises from the Act‘s application to archival records relates to the protection of personal information. Section 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.

The difficulty faced in the context of archival records is proving that the individual, who is the subject of a record, has been dead for more than 30 years. Although the Act has made some provision for access to personal information for research purposes under section 14(1)(e), difficulties still arise.

The idea of setting a specific time limit after the creation of a record containing personal information for access was discussed by the Standing Committee in its report as follows:

Since few people live past 100 years, it was suggested that this rule would create little or no chance that the release of records would infringe on personal privacy. By linking the sensitivity of information to the age of the record, rather than the date of death of the person to whom the record relates, it will be easier for the Archivist to make decisions about the release of a record. Such decisions will be easier because the age of a record is usually stated in the record, whereas the date of death of the person named in the record is often difficult to determine, since the record does not usually contain this information. (p. 87)

The IPC believes that access under the Act to archival records poses unique problems that should be examined and addressed by the Standing Committee. The proposed amendments offer one practical solution to this difficult problem, similar to the Standing Committee’s recommendation #55. In addition, the IPC maintains that the proposed time limits would not restrict access in any way. Records to which the time limits do not yet apply would still be available through the normal processes under the Act.

7. Unique Personal Identification Numbers

Issue:

Although the Act deals with the use of identifying numbers, it does not explicitly address the assigning of unique identifying numbers.

Proposed Amendments:

Amend the Act to prevent or restrict the assigning of unique identifying numbers.

Rationale:

A unique identifying number is a number assigned, by an institution, to an individual and only to that individual. The purpose of the number is usually to assist the assigning institution in its program operation: examples of unique identifying numbers include a social insurance number, a driver’s licence number, and a health card number.

In today’s technological society, the assigning of an unique identifying number to retrieve information, match files, and expedite program management is not only useful, but often integral to program operation. However, overuse of unique identification numbers creates a risk that the privacy of individuals may be unjustly invaded. Unique identification numbers create the potential for large amounts of personal information to be stored and accessed, sometimes by unauthorized persons or for unauthorized purposes. Such numbers also allow government agencies and commercial enterprises to develop potentially intrusive personal profiles on individuals without their knowledge or consent. Use of various databases to create personal profiles is simple, quick, and inexpensive when the databases can be accessed with reference to a unique personal identification number.

In section 2(c) of the Act, personal information is defined to include: “any identifying number, symbol or other particular assigned to the individual”. Also in section 2, “personal information bank” is defined as:

… a collection of personal information that is organized and capable of being retrieved using an individual’s name or an identifying number or particular assigned to the individual.

The Act therefore treats existing identifying numbers as personal information and as such, subjects these numbers to all of the privacy protection safeguards provided by Part II of the Act. However, the issue of preventing or restricting the actual assigning of a number remains outstanding in Ontario.

Other jurisdictions have attempted to deal with unique identifiers. In New Zealand, the use and assigning of unique identifiers are controlled by Privacy Principle 12 of the Privacy Act:

(1) An agency shall not assign a unique identifier to an individual unless the assignment of that identifier is necessary to enable the agency to carry out any one or more of its functions efficiently.

(2) An agency shall not assign to an individual a unique identifier that, to that agency’s knowledge, has been assigned to that individual by another agency, unless those two agencies are associated persons within the meaning of section 8 of the Income Tax Act.

(3) An agency that assigns unique identifiers to individuals should take all reasonable steps to ensure that unique identifiers are assigned only to individuals whose identity is clearly established.

(4) An agency shall not require an individual to disclose any unique identifier assigned to that individual unless the disclosure is for one of the purposes in connection with which that unique identifier was assigned or for a purpose that is directly related to one of those purposes. (Fact Sheet Number 3.5 on Unique Identifiers, New Zealand Privacy Commissioner, July 1993)

As program systems become more and more computerized, the inclination to assign identifying numbers is likely to increase. Preventing or restricting the assigning of unique identifying numbers, through an amendment to the Act, will improve privacy protection and serve as an additional pre-emptive privacy safeguard.

8. Access for the Visually Impaired

Issue:

People with disabilities may encounter difficulties when attempting to access government-held information.

Proposed Amendments:

The Act should be amended to provide for increased access by the visually impaired to both general records and their own personal information.

Rationale:

In a memorandum to Deputy Ministers, dated February 20, 1989, Management Board announced a new policy on governing the provision of information for the “print handicapped”. The policy was comprised of three statements, which became mandatory requirements in Management Board Directive 5-4. The requirements were:

Ministries and agencies must make every reasonable effort to comply with individual requests from print handicapped persons for access to government publications. Access can take a number of forms:

audio tape;

large print;

braille; and

the service of a reader.

In developing a publication, ministries and agencies must determine whether to produce it in one or more formats accessible to the print handicapped. The formats include audio tape, large print and braille.

Ministries and agencies must inform the Ministry of Government Services [now part of Management Board] of these formats. MGS will record them in its computer data base of publications, thus including them in its monthly checklist of government publications. Editions for the print handicapped must have the same price as standard print editions.

The impetus for this policy was a 1988 amendment to the Human Rights Code, which established the principle of reasonable access by disabled persons to goods, services, facilities and employment.

The IPC has also addressed the issue of access to government-held information by the visually impaired. In Order P-540, the IPC had to determine whether section 48(4) of the provincial Act obligated the institution to provide the requester with information in enlarged print. The IPC found that, an institution must provide personal information to a requester in a comprehensible format but that the term “comprehensible” must be interpreted according to an objective standard. If the institution had interpreted section 48(4) of the provincial Act based on an objective standard and did nothing to assist the requester to comprehend the record, there would have arisen a restriction on the appellant’s rights as a disabled person under the Human Rights Code and a prima facie breach of the Code.

In a postscript to Order P-540, the Assistant Commissioner (Access) urged the government to deal with access rights of visually impaired individuals to both their personal information and to general records through amendments to the Acts. He stated:

… there is a need for the Government of Ontario to clearly establish the obligations of institutions when responding to access requests filed by visually impaired requesters … such direction should, ideally, be provided within the provincial and municipal Acts, themselves.

In addition, the issue of access to government-held information by the sensory disabled has been addressed legislatively under the federal Access to Information Act and the federal Privacy Act. Amendments to sections 3, 11, 12 and 30 of the Access to Information Act and sections 3, 17 and 29 of the federal Privacy Act provide for rights of access for individuals with a sensory disability.

Section 12(3) of the federal Access to Information Act provides:

Where access to a record or a part thereof is to be given under this Act and the person to whom access is to be given has a sensory disability and requests that access be given in an alternative format, a copy of the record or part thereof shall be given to the person in an alternative format

(a) forthwith, if the record or part thereof already exists under the control of a government institution in an alternative format that is acceptable to that person; or

(b) within a reasonable period of time, if the head of the government institution that has control of the record considers the giving of access in an alternative format to be necessary to enable the person to exercise the person’s right of access under this Act and considers it reasonable to cause that record or part thereof to be converted.

The term “alternative format” is defined under section 3 as follows:

… “alternative format”, with respect to a record, means a format that allows a person with a sensory disability to read or listen to that record;

“sensory disability” means a disability that relates to sight or hearing.

Section 30(d.1) provides:

Subject to this Act, the Information Commissioner shall receive and investigate complaints

… (d.1) from persons who have not been given access to a record or a part thereof in an alternative format pursuant to a request made under subsection 12(3), or have not been given such access within a period of time that they consider appropriate.

Section 11 provides for fees to be charged. Section 11(c) provides:

Subject to this section, a person who makes a request for access to a record under this Act may be required to pay

…(c) before the record is converted into an alternative format or any copies are made in that format, such fee as may be prescribed by regulation reflecting the cost of the medium in which the alternative format is produced.

Similar amendments were made to the federal Privacy Act which deals with access to personal information and protection of privacy. Section 17(3) provides:

Where access to personal information is to be given under this Act and the individual to whom access is to be given has a sensory disability and requests that access be given in an alternative format, access shall be given in an alternative format if

(a) the personal information already exists under the control of a government institution in an alternative format that is acceptable to the individuals; or

(b) the head of the government institution that has control of the personal information considers the giving of access in an alternative format to be necessary to enable the individual to exercise the individual’s right of access under this Act and considers it reasonable to cause the personal information to be converted.

The amendments made to sections 3 and 29 of the federal Privacy Act are similar to the amendments which were made to sections 3 and 30 of the federal Access to Information Act.

These amendments to the federal Access to Information Act and the federal Privacy Act provide for an enhanced right of access to the sensory disabled. However, they still leave government institutions with a great deal of discretion in deciding whether to provide the information in an alternative format. The institution is only required to convert the information if the head considers it “necessary” and “reasonable”. Therefore, the federal legislation is not necessarily the ideal model. The government may wish to consider using the federal legislation as a starting point and then tailoring the amendments to theActto provide an even greater right of access. By providing access to records for visually impaired individuals, the government would be broadening access to records and furthering open government.

9. Purposes of the Act

Issue:

Inconsistent wording in the Purposes section of the Act may lead to confusion and misinterpretation.

Proposed Amendments:

Amend section 1 of the Act as follows:

1. The purposes of this Act are,

(a) to provide a right of access to information in the custody or under the control of institutions in accordance with the principles that, …

(iii) decisions on the disclosure of information should be reviewed independently of the institutions which have custody or control of the information;

(b) to protect the privacy of individuals with respect to personal information about themselves in the custody or under the control of institutions and to provide individuals with a right of access to that information.

Rationale:

Under section 4(1), every person is given the right of access to a record or a part of a record in the custody or under the control of an institution. Sections 17(1), 18(2), 41(4), and 52(1) of the Act all refer to records in the custody or under the control of institutions. There does not appear to be any substantive reason why section 1(a), the purposes provision, should only refer to a right of access to records held by, or under the control of institutions.

By providing that one of the purposes of the Act is to provide a right of access to information in the custody or under the control of institutions, the proposed amendment more accurately reflects the intention of the Legislature as is evident in other provisions of the Act. It also eliminates any confusion caused by inconsistent terminology and aids understanding of the Act.

In addition, the word “held”, as currently used in section 1(b), has multiple meanings and, therefore, is ambiguous. It fails to make clear the meaning intended and whether it requires possession or ownership.

Section 36 provides individuals with a right of access to “any personal information about the individual contained in a personal information bank in the custody or under the control of an institution …” and a right to access “any other personal information about the individual in the custody or under the control of an individual….” [emphasis added] Furthermore, the provisions relating to an institution’s use and disclosure of personal information (sections 31 and 32) apply to personal information in its custody or under its control. The proposed amendments reflect this and clarify the meaning of the word “held” in section 1(b).

The IPC proposed similar amendments for section 1 in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Technical Issues I-III). Those suggested changes were adopted by the Standing Committee in its report (see Standing Committee recommendation #81, p. 128).

10. Public Accountability

Issue:

The Act does not explicitly provide that promoting accountability of government bodies to the public is one of the purposes of the Act.

Proposed Amendments:

Amend section 1 of the Act to include a new provision: “to make public bodies more accountable to the public“.

Rationale:

The proposed amendment would explicitly address the underlying principle of freedom of information — government accountability to the public it serves.

In rationalizing the major arguments for the adoption of a freedom of information scheme, the Williams Commission stated:

In this chapter we identify the major arguments for the adoption of freedom of information schemes: the need to render government more accountable to the electorate; the desirability of facilitating informed public participation in the formulation of public policy; the need for fairness in decision making affecting individuals; and the protection of personal privacy. (Vol. 2, p. 77)

Accountability was, therefore, a strong and central argument for legislation. The Commission also stated that:

Increased access to information about the operations of government would increase the ability of members of the public to hold their elected representatives accountable for the manner in which they discharge their responsibilities… If neither the citizens nor their representatives are able to obtain adequate information about the decisions of the executive, this traditional mechanism of public accountability cannot operate effectively. (Vol. 2, p. 77)

Other jurisdictions have explicitly included “accountability” as a purpose:

in British Columbia, the Freedom of Information and Protection of Privacy Act, 1992, includes accountability in section 2: “the purposes of this Act are to make public bodies more accountable to the public and to protect personal privacy …”

Nova Scotia’s legislation, the Freedom of Information and Protection of Privacy Act, establishes in section 2: “That the purpose of this Act is (a) to ensure that public bodies are fully accountable to the public …”

in New Zealand’s legislation (Section 4 of the Official Information Act), accountability is clearly spelled out as a purpose: “To increase progressively the availability of official information to the people of New Zealand, in order … (ii) to promote the accountability of Ministers of the Crown and officials, and thereby to enhance respect for the law and to promote the good government of New Zealand.”

The fundamental basis of a freedom of information scheme is that the taxpaying public has a right to information that is paid for from the public purse. This gives further weight to the importance of codifying accountability in the Act. Expressly including such a statement in Ontario’s legislation would assist the public, public officials, the courts, and the IPC in interpreting the legislation, and in resolving the ambiguities in favour of an interpretation that promotes government accountability to the public.

Part I — Freedom of Information

11. Time Limit for Exception to Council Records Exemptions

Issue:

The 20 year timeframe in section 6(2)(c) of the Act respecting the length of time after which a record containing draft by-laws and records of closed meetings must be disclosed, is too long. This inhibits the advancement of open government. Reducing the timeframe would broaden access to records and further open government.

Proposed Amendments:

Amend section 6(2)(c) of the Act as follows:

6.–(2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record if, …

(c) the record is more than fifteen years old.

Rationale:

In its discussion of exemptions, the Williams Commission noted:

The underlying premise of a freedom of information law is one of public accessibility of government documents. The critical balance between the public interest in access and the government need for confidentiality is achieved by means of statutory exemptions from the general rule of public access. (Vol. 2, p. 277)

However, section 1 of the Act states:

1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that, …

(ii) necessary exemptions from the right of access should be limited and specific,

Section 6(1) of the Act is a discretionary exemption which permits the head to not release a record containing draft by-laws or records that would reveal the substance of deliberations of closed meetings. However, section 6(2) currently stipulates that if the records are over 20 years old, the exemption in section 6(1) cannot be relied upon. Section 6(2) is, in essence, a mandatory exception to this exemption.

The IPC maintains that the sensitivity of the records under section 6(1) diminishes over time, and the time limit for this exemption is unnecessarily lengthy. The proposed amendment would reduce the length of time this exemption may apply to a record and furthers the principle of open government. It would also bring the Ontario legislation in line with British Columbia’sFreedom of Information and Protection of Privacy Act, 1992 exemption relating to local public body confidences. The exception provides that this exemption does not apply if the information is in a record that has been in existence for 15 or more years.

Although section 12 of the provincial Act is not a strict equivalent of section 6, in a discussion of the Cabinet record exemption, the Standing Committee on the Legislative Assembly report noted:

With respect to the 20 year exemption period, the Committee thinks this is excessive and should be reduced to 15 years — the maximum duration of 3 Legislatures. (see Standing Committee recommendation #7, p. 18)

12. Public Opinion Polls and Economic Forecasts

Issue:

Although the Act provides that factual material and certain reports cannot be withheld under section 7 (pertaining to advice and recommendations), it does not explicitly require the disclosure of public opinion polls and economic forecasts.

Proposed Amendments:

Section 7(2) of the Act should be amended to include specific references to public opinion polls and economic forecasts in the list of examples of information that would not be considered advice or recommendations for the purposes of section 7(1).

Rationale:

According to the Williams Commission, the “primary concern relating to public disclosure of documents containing advice and recommendations is that such documents would be written with less candour than is currently the case.” (Vol. 2, p. 289) According to the Commission, if public servants are not able to freely express critical views or put forward contentious proposals, this could “diminish the quality of policy-making and decision-making activities within government.” (Vol. 2, p. 289)

However, the exemption for advice and recommendations was not intended to cover factual material or the analysis of factual material that goes beyond mere reportage, such as documents relating to public opinion polls and economic forecasts. According to the Williams Commission, documents containing an assessment of options relating to a specific factual situations should not be included under the exemption, unless they offer specific advice and recommendations.

The release of public opinion polls has become an issue at the federal level of government. For example, a request was made under the federal Access to Information Act for access to government commissioned public opinion polls, the results of focus or survey groups, and relevant contracts relating to the subject of national unity and constitutional reform following the failure of the Meech Lake Accord. The federal Information Commissioner found that most of the information did not fall within the exemption claimed by the government and recommended that the information be released.

When the government refused, the case went before the Federal Court of Canada and the government was ordered to release the information. However, by the time the information was released, it was no longer relevant because the Charlottetown Referendum had already taken place.

The federal Information Commissioner noted in his 1991-1992 Annual Report that:

… it is passing bizarre that the public should be denied knowing what the public thinks when the public pays for collecting information about itself. (p. 5)

While it could be argued that public opinion polls and economic forecasts would fall within the meaning of “factual material” as stated in section 7(2)(a) of the Act, access legislation from other jurisdictions clearly states that polls and economic forecasts will not be exempt from disclosure under the advice and recommendations exemption.

For example, section 13(2) of British Columbia’s Freedom of Information and Protection of Privacy Act, 1992 excludes public opinion polls and economic forecasts, in addition to any factual material, from the exemption for advice and recommendations contained in section 13(1).

Similarly, section 14(2) of Nova Scotia’s legislation, the Freedom of Information and Protection of Privacy Act, excludes “background information” from the exemption for advice, recommendations or draft regulations specified in section 14(1). “Background information” specifically includes public opinion polls and economic forecasts, in addition to factual material.

13. Shortening Time Limit for Advice or Recommendations Exemption

Issue:

The current 20 year timeframe in section 7(3) after which a record containing advice to government must be disclosed is too long. This inhibits the advancement of open government. Reducing the timeframe would broaden access to records and further open government.

Proposed Amendments:

Amend section 7(3) of the Act as follows:

(3) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record if the record is more than fifteenyears old.

Rationale:

Based on the time limitations used by other jurisdictions, the existing 20 year mark is long; other provinces use much shorter time periods for this provision — for example, British Columbia’s Freedom of Information and Protection of Privacy Act, 1992, section 13(3), uses 10 years; Quebec’s An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, section 37, uses 10 years; and Nova Scotia’s Freedom of Information and Protection of Privacy Act, section 14(3), uses five years.

Moreover, in its review of the provincial Act, in the corresponding section 13(3), the Standing Committee on the Legislative Assembly stated in recommendation #11:

That subsection 13(3) be amended to provide that records containing advice to government shall be released where a record is more than 15 years old. (p. 20)

The IPC concurs with the recommendation above and supports the application of a 15 year time limit for section 7 of the Act.

14. Routine Inspection Reports

Issue:

The current wording of section 8(4) may lead to confusion about whether or not reports prepared in the course of routine inspections are accessible under the Act.

Proposed Amendments:

Amend section 8(4), the exception to the law enforcement exemption, as follows:

8.–(4) Despite any exemption, a head shall disclose a record that is a report prepared in the course of routine inspection by an agency that is authorized to enforce and regulate compliance with a particular statute of Ontario.

Rationale:

Section 8(4) of the Act currently provides:

8.–(4) Despite clause (2)(a), a head shall disclose a record that is a report prepared in the course of routine inspections by an agency that is authorized to enforce and regulate compliance with a particular statute of Ontario.

This provision reflects the Legislature’s view that it is inappropriate to withhold from public scrutiny all material relating to routine inspections, as well as other similar enforcement mechanisms in such areas as occupational health and safety legislation, consumer protection regulation, and environmental protection schemes.

The provision as currently drafted, however, may give rise to confusion about the application of other exemptions to routine inspection reports. The proposed amendment clarifies that other exemptions under the Act do not apply to routine inspection reports.

15. Time Limit on Relations with Government Exemption

Issue:

There is no timeframe in section 9 of the Act. The absence of a timeframe potentially prevents, in perpetuity, access to intergovernmental records even though the sensitivity of records is lost over time.

Proposed Amendments:

Amend section 9 of the Act to provide for a time period of 15 years after which records must be disclosed.

Rationale:

Section 9 exempts records, the disclosure of which could reasonably be expected to reveal information received from another government in confidence. The current absence of a time restriction means that the exemptions in this section are extended long after any harm from disclosure could reasonably be expected to occur.

Other jurisdictions provide time limitations as follows:

in Nova Scotia’s legislation, Freedom of Information and Protection of Privacy Act, section 12(3) states that “Subsections (1) and (2) do apply to information in a record that has been in existence for fifteen or more years”;

British Columbia’s Freedom of Information and Protection of Privacy Act, 1992 specifies in section 16(3) that “Subsection (1) does not apply to information that is in a record that has been in existence for 15 or more years unless the information is law enforcement information”.

The Standing Committee considered time limits on exemptions in reviewing the provincial Act and supported the adoption of time limits as a measure of further defining and narrowing the exemptions to the right of access. Recommendation #23 from the Standing Committee’s report stated:

… the exemptions to the right to access be reviewed with a view to establishing time limits for those exceptions which are currently not subject to time restrictions. (p. 38)

The absence of a timeframe in section 9, respecting relations with governments, undermines access and inhibits furthering the principle of open government. The inclusion of a timeframe would set a standard consistent with other provisions of the Act, other jurisdictions, and with the overriding principle of open government.

16. Consent to Disclosure of Third Party Information

Issue:

Section 10 allows a head to refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, under certain circumstances. Section 10(2) is an exception to that exemption, which states:

(2) A head may disclose a record described in subsection (1) if the person to whom the information relates consents to the disclosure. [emphasis added]

Proposed Amendments:

Amend section 10(2) of the Act to state:

A head shall disclose a record described in subsection (1) if the person to whom the information relates consents to the disclosure.

Rationale:

This amendment would increase public access to records. The purpose of the section 10 exemption is to provide protection for third party records. Arguably, if a third party sees no reason for withholding a record, then an institution should not retain the discretion to refuse to disclose the record, unless it can legitimately rely on another exemption in the Act.

This IPC proposal follows the approach of section 21(3) of the British Columbia Freedom of Information and Protection of Privacy Act, 1992.

17. Simplifying Personal Privacy Exemption

Issue:

Section 14(1) of the Act provides that a head of an institution must refuse to disclose personal information to any person other than the person to whom the information relates, except in the circumstances listed in sections 14(1)(a) through (f).

Section 14(1)(f) allows the disclosure of personal information if the disclosure would “not constitute an unjustified invasion of personal privacy.” The criteria to be applied in determining what constitutes an unjustified invasion of personal privacy are listed in section 14(2). Section 14(3) sets out the circumstances in which an unjustified invasion of personal privacy is presumed, and section 14(4) lists those circumstances which would not constitute an unjustified invasion of privacy.

Finally, section 14(5) permits the head of an institution to refuse to confirm or deny the existence of a record if disclosure of the existence or non-existence of the record would constitute an unjustified invasion of personal privacy.

This section has been criticized as being awkwardly drafted and difficult to apply.

Proposed Amendments:

The “personal privacy” exemption of section 14 should be restructured to make it easier to understand and apply.

Section 14(1) should state simply that the head of an institution must refuse to disclose personal information to any person except the person to whom the information relates “if the disclosure would constitute an unjustified invasion of personal privacy.”

Section 14(4) should be revised to include the five circumstances set out in the current sections 14(1)(a) through (e).

Rationale:

The structure of the section 14 “personal privacy” exemption is awkward and makes the exemption difficult to understand and apply. For example, the circumstances set out in sections 14(1)(a) through (e) logically should be combined with the criteria set out in section 14(4). In addition, the “double negative” wording of section 14(1)(f) (i.e., “the disclosure does not constitute anunjustified invasion”) makes the Act difficult to understand and apply. The proposed revisions, modelled on the British ColumbiaFreedom of Information and Protection of Privacy Act, 1992, would make the Act more comprehensible to members of the public and public officials alike.

The Standing Committee discussed the wording of section 21 of the provincial Act as follows:

Several witnesses complained that the wording of the Act is vague and convoluted. Section 21 appears to be particularly troublesome in this respect. The Committee believes consideration should be given to clarifying the personal privacy exemption, and, in particular, the test for disclosure established by subsection 21(1)(f). (see Standing Committee recommendation #18, p. 30)

18. Reduce the Number of Presumed Unjustified Invasions of Privacy in the Personal Information Exemption

Issue:

Section 14(3) of the Act provides that disclosure of particular categories of personal information is presumed to be an unjustified invasion of personal privacy.

Section 14(4) sets out a limited number of categories of personal information, disclosure of which is explicitly stated not to be unjustified invasion of personal privacy.

There are other factors set out in section 14(2) and unlisted that, in most cases, must be considered in determining whether a disclosure of personal information constitutes an unjustified invasion of privacy. In the judicial review of Commissioner Wright’s Order P-237, the court held that the Commissioner misconstrued the relationship between sections 21(2) and 21(3), the provincial Act‘s equivalent to sections 14(2) and 14(3) of the Act. The Commissioner had found that a presumed unjustified invasion of privacy was capable of being rebutted by the application of a combination of factors under section 21(2) of the provincial Act.

The court held that once a presumption of invasion of privacy had been established under section 14(3), the presumption applied unless the information fell within the limited categories of personal information set out in section 14(4), or through the application of the “public interest override” section.

Proposed Amendments:

The IPC recommends that section 14 be amended to reduce the categories of personal information, the disclosure of which is presumed to be an unjustified invasion of personal privacy.

Rationale:

This change would make the Act less rigid and more workable. The determination of whether disclosure of personal information constitutes an unjustified invasion of personal privacy would take place within the balancing of factors set out in section 14(2).

19. Mailing Lists and Other Forms of Solicitation

Issue:

There is no specific provision in the Act dealing with access to personal information which could be used for mailing lists or other forms of solicitation.

Proposed Amendments:

Amend section 14(3) of the Act as follows:

14.–(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(i) consists of an individual’s name, address or telephone number and is to be used for mailing lists or solicitation by telephone or other means.

Rationale:

Disclosure by an institution of the names, addresses or telephone numbers of individuals to be used for mailing lists or other means of solicitation, without the consent of these individuals raises significant privacy concerns.

One of the basic tenets of the Act, and indeed all codes of fair information practices, is that every individual has an interest in controlling information held by others about him- or herself. This concept is known as informational privacy.

The Canadian Task Force on Privacy and Computers in its report, Privacy and Computers (1972), identified and defined privacy in the “information context” in the following terms:

… is based essentially on a notion of the dignity and integrity of the individual, and on their [sic] relationship to information about him. This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit…. Competing social values may require that an individual disclose certain information to particular authorities under certain circumstances (e.g. census information).

He may decide to make it available in order to obtain certain benefits. He may also share it quite willingly with his intimates. Nevertheless, he has a basic and continuing interest in what happens to this information, and in controlling access to it.

This definition was key to the Williams Commission’s discussions and recommendations regarding privacy protection.

The proposed amendment provides that the disclosure of an individual’s name, address or telephone number to be used for mailing lists or solicitation by telephone or other means, is presumed to constitute an unjustified invasion of personal privacy. This extends the protection provided by the Act of an individual’s interest in controlling information about him or her held by institutions.

Two of the provincial freedom of information and protection of privacy schemes that have followed Ontario’s have explicitly recognized that disclosure of personal information to be used for mailing lists or other forms of solicitations should be presumed an unreasonable invasion of personal privacy.

Section 22(3) of British Columbia’s Freedom of Information and Protection of Privacy Act, 1992 states:

22.–(3) A disclosure of personal information is presumed to be an unreasonable invasion of a third party’s personal privacy if,

(i) the personal information consists of the third party’s name together with his or her address or telephone number and is to be used for mailing lists or solicitations by telephone or other means.

Section 20(3) of Nova Scotia’s legislation, the Freedom of Information and Protection of Privacy Act, contains a similar provision.

20. Location of Soon to be Published Information

Issue:

The Act permits the head to refuse to disclose information that has been published or is currently available to the public. However, section 15 does not require the head to inform the requester of the specific location of that information. Without this obligation, a de facto denial of access may result because of the difficulties the requester may experience in trying to locate the information.

Proposed Amendments:

Amend section 15 of the Act as follows:

15. A head may refuse to disclose a record if,

(a) the record or the information contained in the record has been published or is currently available to the public, and the head has informed the requester of the specific location of the record or the information contained in the record;

Rationale:

Section 15 does not require the head, when utilizing this provision, to inform the requester of the specific location of the record or information contained in the record. When this exemption is claimed by an institution and the requester is not advised by the institution of the record’s specific location, the information is, in essence, made inaccessible to the requester.

This issue has been addressed by the Commissioner in several orders. In provincial Order 123, former Commissioner Linden interpreted section 22(a) of the provincial Act as requiring, by necessary implication, the head to inform the requester of the specific location of the record that responds to the request or the information contained in the record. Specifically, the Order stated:

Whenever an institution relies on subsection 22(a), the head has a duty to inform the requester of the specific locations of the records or information in question.

The proposed amendment codifies the IPC’s position which is necessarily implicit from a review of section 15(a) of the Act.

The IPC proposed a similar amendment for section 22(a) in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Clarification VIII). The suggested change was adopted by the Standing Committee in its report as follows:

The Committee believes that, by codifying the implicit duty imposed by subsection 22(a) on the head of an institution, public accessibility to government information would be enhanced. Such a requirement would not significantly inconvenience institutions, since the record in question would be one which is in the custody or control of the institution, and the institution is in the best position to advise the requester as to where the record can be found. (see Standing Committee recommendation #20, p. 34)

21. Notification of Requesters

Issue:

There is a need to clarify the course of action to be followed when section 15(b) of the Act is evoked by the head and then, due to a change in circumstances, the information does not become available within 90 days or as scheduled.

Proposed Amendments:

Amend section 15 of the Act as follows:

15.–(1) A head may refuse to disclose a record if,

(b) the head believes on reasonable grounds that the record or the information contained in the record will be published by an institution within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it.

(2) Where a head refuses to disclose a record or the information contained in the record under clause (b) and subsequently learns that the record will not be published as scheduled, the head shall immediately give the person who made the request, written notice in accordance with section 19.

Amend the section to prohibit institutions from applying 15(b) to a record more than once.

Rationale:

Currently, it is unclear what happens in a situation where the head has, in good faith, claimed the protection of section 15(b), and then the information is not published within 90 days or as scheduled. The questions that arise are:

Is the requester required to make another access request for the same record; or

Can the institution continue to claim the exemption, even if the time for publication has expired and the information has not become available in published form?

The proposed amendment addresses these issues. It does not require that the requester make another request for the same record. However, it does give the head of an institution the requisite time to respond to the request, in light of the change in circumstances.

The IPC proposed similar amendment for section 22 in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Clarification IX). The suggested change was adopted by the Standing Committee in its report as follows:

The Committee believes that the proposal of the Commissioner’s Office will resolve the uncertainties arising out of the exemption in subsection 22(b). (see Standing Committee recommendation #21, p. 35)

22. Public Interest Override

Issue:

The test in the “public interest override” provision (section 16) is too difficult to meet. It does not permit sufficient weight to be given to the public interest in disclosure of a specific record in particular circumstances.

Further, the application of the section should be expanded to apply to all of the Act‘s exemptions.

Proposed Amendments:

Amend section 16 of the Act to state:

An exemption from disclosure of a record under sections 6, 7, 8, 9, 10, 11, 12, 13, 14, and 38 does not apply when disclosure is clearly in the public interest.

Rationale:

The present section 16 contains such onerous requirements that it has never been successfully applied in an order. The amendment would establish a more workable and clear public interest override.

Additionally, the proposed change would provide that the section would apply to four more exemptions. Accordingly, the amendment would create the potential for greater public access to records.

23. Consistent Reference to Requesters

Issue:

Inconsistent wording of section 17 of the Act may lead to confusion and misinterpretation.

Proposed Amendments:

Amend section 17(2) of the Act as follows:

17.–(2) If the request does not sufficiently describe the record sought, the institution shall inform the person seeking accessof the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

Rationale:

The terminology in section 17 is inconsistent. Different words or expressions are used to denote the same thing. Section 17(1) refers to “A person seeking access”, where as section 17(2) refers to “the applicant”. The proposed amendment eliminates any confusion by ensuring consistent wording within the section.

The IPC proposed similar amendments for section 24 in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Technical Issue V). The suggested change was adopted by the Standing Committee in its report (see Standing Committee recommendation #81, p. 128).

24. Transfer of Requests

Issue:

The Act does not require an institution to transfer an access request to another institution that may have a “greater interest” in the record being sought. Instead, the transfer is left to the institution’s discretion. This has, at times, resulted in undue delay and complications in processing appeals.

Proposed Amendments:

Where another institution has a greater interest in a record, a transfer of a request should be required rather than left to the head’s discretion. Section 18(3) should be amended to read “shall” instead of “may,” as follows:

(3) If an institution receives a request for access to a record and the head considers that another institution has a greater interest in the record, the head shall transfer the request and, if necessary, the record to the other institution, within fifteen days after the request is received, in which case the head transferring the request shall give written notice of the transfer to the person who made the request.

Rationale:

Section 18(2) of the Act requires a head to forward a request to another institution where the record sought is in the other institution’s custody or control. Section 18(2) provides:

(2) The head of an institution that receives a request for access to a record that the institution does not have in its custody or under its control shall make reasonable inquiries to determine whether another institution has custody or control of the record, and, if the head determines that another institution has custody or control of the record, the head shall within fifteen days after the request is received,

(a) forward the request to the other institution; and

(b) give written notice to the person who made the request that it has been forwarded to the other institution.

The head’s obligation to forward a request to the institution having custody of the record is mandatory.

In contrast, where another institution has a “greater interest” in the request, the head’s obligation to transfer the request is discretionary. Section 18(3) reads:

(3) If an institution receives a request for access to a record and the head considers that another institution has a greater interest in the record, the head may transfer the request and, if necessary, the record to the other institution, within fifteen days after the request is received, in which case the head transferring the request shall give written notice of the transfer to the person who made the request.

In the IPC’s view, there is no valid reason for the distinction between sections 18(2) and (3). The proposed amendment would make the two provisions consistent.

25. Notice of Refusal

Issue:

The lack of a provision in the Act explicitly requiring a description of the record at issue in the Notice of Refusal makes it difficult for a requester to make an informed decision on whether or not to appeal the decision of the head to the Commissioner.

Proposed Amendments:

Amend section 22 of the Act as follows:

22.–(1) Notice of refusal to give access to a record or a part under section 19 shall set out, …

(b) where there is such a record,

(i) a description of the record,

(ii) the specific provision of this Act under which access is refused,

(iii) the reason the provision applies to the record,

(iv) the name and position of the person responsible for making the decision, and

(v) that the person who made the request may appeal to the Commissioner for a review of the decision.

(3) A head who refuses to disclose a record or part under subsection 21(7) shall state in the notice given under subsection 21(7),

(a) a description of the record or part thereof;

(b) the specific provision of this Act under which access is refused;

(c) the reason the provision named in clause (b) applies to the record;

(d) the name and office of the person responsible for making the decision to refuse access; and

(e) that the person who made the request may appeal to the Commissioner for a review of the decision.

Rationale:

Sections 22(1)(b) and 22(3) do not specifically require the notice of refusal to include a description of the record relating to the request. This omission places the requester and affected parties in the difficult position of having to make a decision about whether or not to appeal the decision of the head to the Commissioner without having any knowledge of the nature of the record.

In its discussion of procedural matters relating to denial of access, 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…. The following types of information should appear in such notices:

1. the statutory provision under which access is refused;

2. an explanation of the basis for the conclusion that the information sought is covered by an exempting provision;

3. the availability of further review and how it can be pursued;

4. the name and office of the person responsible for making the decision.

Although the obligation to provide reasons for denial may appear to be burdensome, we believe that it will be instrumental in encouraging careful determination of decisions to deny access. (Vol. 2, pp. 267-268)

It has been the position of former Commissioner Linden, as stated in provincial Order 81, that a general description of the record is necessary for a requester “to make an informed decision as to whether he wishes to obtain an independent review of the decision.” In Order 81, the former Commissioner discussed the contents of the refusal notice under section 29(1)(b) of the provincial Act and found:

By necessary inference, the provisions of subsection 29(1)(b) of the Act require that the head provide the requester with a general description of the records responding to the request….

The proposed amendments codify what is necessarily implicit from a review of section 22 and the rest of the Act. It is necessary for the person who made the request to have some knowledge of the nature of the record so the individual may make an informed decision about whether or not to appeal the decision of the head to the Commissioner.

The IPC proposed a similar amendment for section 29 in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Clarification X). That suggested change was adopted by the Standing Committee in its report on the review of the provincial Act (see Standing Committee recommendation #28, pp. 46-47).

26. Access Request Time Limits

Issue:

The Act establishes time limits for responding to an access request. However, currently there are no incentives in the Act for institutions to adhere to these time limits.

Proposed Amendments:

Amend section 22 of the Act by adding the following provision:

22.–(4) A head who fails to give the notice required under section 19 or subsection 21(7) concerning a record shall be deemed to have given notice of refusal to give access to the record on the last day of the period during which notice should have been given.

(5) Where a head fails to give the notice required under section 19 or subsection 21(7) concerning a record, the Commissioner may, on appeal, require the head to waive payment of all or any part of an amount required to be paid by the person who made the request for access to the record.

Rationale:

Part I of the Act does not provide a procedural mechanism to encourage institutions to adhere to the statutory time requirements. Currently, a deemed refusal situation is created:

if an institution does not respond to a request for access to a record within 30 days after the request is received, or

if there has been an extension of time limit under section 20(1) within the extended time limit, or

if there has been a written notice of delay under section 21(4) within 30 days after the notice is given.

If the deemed refusal is appealed, the institution is informed by the Commissioner of the appeal and, in accordance with section 41(13), given an opportunity to make representations to the Commissioner.

Under the current scheme, there are no consequences for an institution which fails to adhere to the statutory time limits found in Part I.

The Williams Commission noted that:

The effective implementation of a freedom of information statute is encouraged by the adoption of time limits within which responses to requests should be made. (Vol. 2, p. 266)

The proposed amendment gives meaning to the time limits that are established in Part I and provides an institution with an incentive to adhere to those time limits. It also compensates the requester for unnecessary delay. In addition, it strengthens the Commissioner’s office authority and effectiveness as a dispute resolving body.

The IPC proposed a similar amendment for section 29 in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Policy Change IX). That suggested change was adopted by the Standing Committee in its report as follows:

The Committee has concluded that the lack of any incentive for an institution to comply with time limits is a serious deficiency in the Act. This lack of incentive has created delays and discouraged use of the Act.

Accordingly, the Committee supports the recommendation of the Commissioner’s Office to include a procedural mechanism that would encourage adherence by an institution to the statutory time requirements. (see Standing Committee recommendation #54, pp. 83-84)

27. Access to Records in Alternate Formats

Issue:

There is no clear obligation under the Act for institutions to provide information in the format requested. Therefore, institutions might refuse to provide access to electronic records if they can provide paper copies. However, in some cases, electronic copies of records can be more useful to requesters because they are more manageable, cheaper, and easier to search than paper copies, particularly when large volumes of records are involved. Therefore, requesters should be allowed to specify the form of access that is most appropriate for them.

Proposed Amendments:

Amend section 23 of the Act to provide an explicit obligation for an institution to, whenever possible, provide access in the form specified by the requester, unless it would be unreasonable to do so.

Rationale:

The Williams Commission recommended that appropriate forms of access should be established for materials such as films, sound recordings, and computerized information systems. The federal Australian Freedom of Information Act was considered by the Williams Commission to provide a useful model.

Section 23 of the Australian legislation states that:

(2) … where the applicant has requested access in a particular form, access shall be given in that form.

(3) If the form of access requested by the applicant —

(a) would interfere unreasonably with the operations of the agency, or the performance by the Minister of his function, as the case may be;

(b) would be detrimental to the preservation of the document or having regard to the physical nature of the document, would not be appropriate; or

(c) would involve an infringement of copyright subsisting in a person other than the State

— access in that form may be refused and access given in another form.

(4) If an applicant is given access to a document in a form that is different from the form of access requested by the applicant, the applicant shall not be required to pay a charge that is greater than the charge that would have been payable if access had been given in the form requested by the applicant.

Unfortunately, the forms of access specified under section 23(1) of the Australian legislation would appear to preclude electronic forms of access. This section states that:

Access to a document may be given to a person in one or more of the following forms:

(a) A reasonable opportunity to inspect the document;

(b) Provision by the agency or Minister of a copy of the document;

(c) In the case of a document that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the person to hear or view those sounds or visual images; or

(d) In the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the words recorded or contained in the document.

It appears that the intent of this section is to prevent requesters from being granted access to information in electronic form because information in that form may not meaningful or useful to them. However, while the provision of information in electronic form may not have been appropriate in 1982 when the legislation was drafted, this is no longer the case. With the proliferation of personal computers and computerized information networks, requesters today often prefer access to information in electronic form.

Advances in electronic information technology appear to have been taken into consideration in more recently drafted legislation. For example, section 8(2) of Nova Scotia’s Freedom of Information and Protection of Privacy Act states the following:

The head of a public body may give access to a record that is a microfilm, film, sound recording, or information stored by electronic or other technological means by

(a) permitting the applicant to examine a transcript of the record;

(b) providing the applicant with a copy of the transcript of the record;

(c) permitting, in the case of a record produced for visual or aural reception, the applicant to view or hear the record or providing the applicant with a copy of it; or

(d) permitting, in the case of a record stored by electronic or other technological means, the applicant to access the record or providing the applicant with a copy of it.

Although this proposed legislation contemplates the possibility of providing electronic copies of records, there appears to be no obligation on the institution to provide access to information in the form requested.

Section 10 of An Act respecting Access to documents held by public bodies and the Protection of personal information in Quebec states:

The right of access to a document may be exercised by examining it on the premises during regular working hours.

The applicant may also obtain a copy of the document, unless reproducing it would endanger its preservation or raise serious practical difficulties owing to its form.

At the request of the applicant, computerized documents must be communicated in the form of a written and intelligible transcript.

In this legislation, there is a stated obligation for an institution to produce a written transcript of an electronic record, at the applicant’s request. This seems to imply that when access is requested to an electronic record, the institution would normally provide an electronic copy of the record, unless otherwise specified by the applicant. However, it is not clear in this legislation that the institution is required to provide the information in the form requested by the applicant.

On the other hand, An Act Concerning Computer-Stored Public Records from the State of Connecticut clearly obligates institutions to provide access to public records in the form most appropriate to the requester. In regard to access to computer-stored records, section 1-19a of this legislation states that:

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to this chapter, a copy of any non-exempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such a copy or have such copy made.

In contrast to legislation from these other jurisdictions, the Act is silent on the forms of access that institutions are obligated to provide. While this may not have presented a problem in the past, as the use of computers is expanded among individuals, businesses and government organizations, the issue of public access to government computer records will become more pressing.

Thus, in keeping with the purpose of the Act to provide access to government information, and the intentions of the Williams Commission to provide appropriate forms of access, the IPC recommends that the Act be amended to provide an explicit obligation for institutions to grant access in forms that are most meaningful and useful for requesters, unless it is not practical to do so.

Part II — Protection of Individual Privacy

28. Application of Part II of the Act

Issue:

Section 27 exempts from the privacy protection provisions of the Act personal information maintained for the purpose of creating a record that is available to the general public. The Act does not, however, clearly define what constitutes a record that is available to the general public (“public record”) or how it is designated. Currently, public records can be designated either by statute or policy.

Proposed Amendments:

Amend section 27 of the Act to require that records containing personal information only be designated as records available to the general pubic by statutory authority, not by policy.

Rationale:

Section 27 of the Act states that:

This Part does not apply to personal information that is maintained for the purpose of creating a record that is available to the general public.

As noted above, it is currently the government’s practice to designate personal information as available to the public by either statutory authority or by policy decision. The IPC has concerns regarding the latter form of designation as it leaves the decision as to what records are to be considered public to the discretion of the institution.

This type of decision-making does not allow for government or public consultation or scrutiny. In addition, decisions may be affected by other factors, for example, non-tax revenue generation.

As a result of the current economic constraints, governments are examining new ways to generate non-tax revenue. One direction being taken is the sale of government-held information. Consequently, information, including personal information which is held as a public record, could be sold to generate revenue. Under the pressure of current fiscal constraints the opportunity for revenue generation may be more attractive and outweigh privacy concerns.

The Williams Commission’s report describes the public “right to know” in terms of “what kind of information must by law be made public”. It determined that certain information declared public by statute was required to be made available to the public. The Williams Commission’s report does not indicate that policy decisions should determine that additional records be made available to the public. (Vol. 2, p. 169)

The IPC maintains that section 27 should require statutory authority in situations where personal information is designated as available to the public. This position is reflected in section 55 of Quebec’s An Act respecting Access to documents held by public bodies and the Protection of personal information which states that: “Personal information which, by law, is public is not nominative information.” [emphasis added] “Nominative information” is defined in section 54 as “information concerning a natural person which allows the person to be identified.”

It is the IPC’s position that section 27 should be amended to require that records containing personal information should only be designated “public” pursuant to statutory authority. This would limit the amount of personal information to which the privacy protection provisions in Part II of the Act does not apply.

Without the privacy protection offered by the Act, personal information is vulnerable to abuse, including sale of personal information, computer matching and information sharing. Requiring statutory authority would clearly identify what records containing personal information are available to the public. Furthermore, it would compel government institutions to justify, to the Legislature and to the public, their decision to classify records containing personal information as public records.

29. Availability of Personal Information

Issue:

The privacy protection provisions of the Act do not apply to personal information held by an institution for the purpose of creating a record which is available to the general public. However, institutions not mandated to collect the information for the purpose of making it available to the public have claimed this exclusion where another institution is collecting it for this purpose. The exclusion should only be available to the specific institutions which have the statutory authority to collect the information for the purpose of creating a record that is available to the general public.

Proposed Amendments:

Amend section 27 of the Act to narrow the scope of the provision by adding the words “by an institution“.

This Part does not apply to personal information maintained by an institution for the purpose of creating a record that is available to the general public.

Rationale:

In order to limit the amount and type of personal information designated as publicly available, and to protect individuals from potential privacy invasions from the misuse of this information, the IPC supports narrowing the scope of section 27 of the Act.

The intent of section 27 is to exempt an institution from the obligation to comply with the privacy protection provisions in Part II of the Act, when the institution maintains the personal information for the purpose of creating a public record. Only as long as it continues to be maintained for this purpose, does it remain exempt from Part II of the Act.

However, the IPC does not support the view that where section 27 applies to personal information maintained by one institution, it automatically applies to all institutions which subsequently collect, use, retain or disclose the same personal information. Such an interpretation broadens the scope of section 27 beyond what the IPC maintains is its intent, and greatly expands the amount of unprotected personal information.

It is the IPC’s position that section 27 should be amended to narrow the scope of this provision by limiting the use of this exemption to institutions mandated to collect personal information for the purpose of creating a record. The same information should not be exempt when held by another institution which does not have the same mandate or the same level of accountability for the accuracy and currency of the information.

Recommendations in the Williams Commission’s report appear to support the position of a narrow interpretation. The Commission recommended that:

No individually identifiable record shall be disclosed by any means of communication to any person other than the individual to whom the record pertains unless the disclosure is: …

c. of information collected and maintained specifically for the purpose of creating a record that is available to the general public;… (Vol. 2, p. 335)

The proposed amendment to section 27 strengthens the privacy protection provisions of the Act, as well as makes the Actmore comprehensible and workable. Without the privacy protection offered by the Act, personal information is vulnerable to potential abuse including sale of personal information, computer matching, record linkages, and information sharing.

30. Public Registers

Issue:

The Act does not explicitly address “public registers”. Generally, a public register is any register, list, or roll compiled and maintained by a municipal government institution. A tax assessment roll is an example of a municipal register in this context.

Section 27, under Part II of the Act states:

This Part does not apply to personal information that is maintained for the purposes of creating a record that is available to the general public.

Therefore, section 27 renders the personal information contained in such registers unprotected, and open to potential abuses that offend basic fair information practices.

Proposed Amendments:

Amend Part II of the Act to specify privacy protection provisions for public registers.

Rationale:

The issue of “public records” is related to “public registers”. Public records are dealt with in proposed amendments 28 and 29.

In contemplating privacy protection provisions for public registers, the balance of protection and the legitimate “right to know”, is a key consideration.

New Zealand has dealt with this issue through its Public Register Privacy Principles in the Privacy of Information Act, Part VI A, section 58(B). These principles relating to public registers are as follows:

Personal information shall be made available from a public register only by search references that are consistent with the manner in which the register is indexed or organised.

Personal information obtained from a public register shall not be re-sorted, or combined with personal information obtained from any other public register, for the purpose of making available for valuable consideration personal information assembled in a form in which that personal information could not be obtained directly from the register.

Personal information in a public register shall not be made available by means of electronic transmission, unless the purpose of the transmission is to make the information available to a member of the public who wishes to search the register.

Personal information shall be made available from a public register for no charge or for no more than a reasonable charge.

The New Zealand Privacy of Information Act (section 58A) also provides definitions on terms related to public registers. These include:

“Public register” means (a) Any register, roll, list or other document maintained pursuant to a public register provision: (b) A document declared by the Governor-General by Order in Council under section 58G of this Act to be a public register for the purposes of this Part of this Act:

“Public register personal information” means personal information that is available to the public from a public register:

“Public register privacy principle” means any of the principles set out in section 58B of this Act:

“Public register provision” means a provision specified in the second column of Schedule 1A to this Act as a provision of an enactment specified in the first column of that Schedule.

Amending the Act with a provision for privacy protection for public registers along the lines of New Zealand’s principles and definitions could, on balance, further advance privacy protection without diminishing access rights.

31. Notice of Collection

Issue:

Without notification of an institution’s specific legal authority to collect, the individual to whom the information relates is not in a position to challenge that authority or to make informed decisions regarding that collection.

Proposed Amendments:

Amend section 29(2) of the Act as follows:

29.–(2) If personal information is collected on behalf of an institution, the head shall inform the individual to whom the information relates of,

(a) the specific legal authority for the collection;

Rationale:

It is unclear from section 29(2) of the Act whether the legal authority for collection is required to be generally or specifically identified by the head. The proposed amendment requires the head to inform the individual to whom the information relates of the institution’s specific legal authority for collection.

The IPC proposed an amendment for section 39(2) in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Clarification XI). The suggested change was adopted by the Standing Committee in its report as follows:

If the legal authority is stated in terms that are too general, it will be difficult for an individual to confirm the legal authority under which personal information about him or herself was collected.

Another potential problem arising from the wording of subsection 39(2)(a) stems from the fact that some laws impose a penalty on individuals if they do not provide certain information to an institution. Individuals need to know what those penalties might be if they are to make an informed decision about whether to provide an institution with personal information. Individuals can only know what those penalties might be if they know the legal authority under which personal information is being collected.

The problems described above could be remedied if institutions were obligated to inform individuals of the specific legal authority for the collection of personal information. (see Standing Committee recommendation #31, p. 50)

32. Security of Personal Information

Issue:

There is no provision in the Act which imposes a specific legal duty on an institution with respect to the security of the personal information in its custody or under its control.

Proposed Amendments:

Amend section 30 the Act to add the following provision:

An institution shall ensure that personal information in its custody or under its control is protected by such security safeguards that are reasonable in the circumstances to prevent loss or unauthorized access, use, modification or disclosure.

Rationale:

Section 47(c) of the Act gives the Lieutenant Governor in Council the power to make regulations:

(c) setting standards for and requiring administrative, technical and physical safeguards to ensure the security and confidentiality of records and personal information under the control of institutions;

Although section 3 of Ontario Regulation 823 addresses unauthorized access and inadvertent destruction of records, there is no provision in the Act which imposes a specific legal duty on an institution with regard to the security of the personal information in its custody or under its control.

Arguably, section 30(2) of the Act imposes such an obligation by necessary implication. Section 30(2) of the Act provides as follows:

30.–(2) The head of an institution shall take reasonable steps to ensure that personal information on the records of the institution is not used unless it is accurate and up to date.

However, it is the view of the IPC that the safekeeping of personal information is of sufficient importance to privacy protection that there should be a provision in the Act which imposes a specific duty on an institution to ensure the security of personal information in its custody or under its control.

The proposed amendment deals, in general terms, with security of personal information by fixing a standard of reasonable care on an institution to guard against accidental loss or unauthorized access, use, modification or disclosure of personal information. The proposed amendment also underscores the importance to the protection of individual privacy of the physical, technical and administrative security of personal information. It will provide a sound legal basis for section 3 of Ontario Regulation 823.

The IPC proposed a similar amendment for section 43 in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Policy Change X). That suggested change was adopted by the Standing Committee in its report as follows:

… there is a direct relationship between the safekeeping of personal information and the protection of privacy of individuals….

In the view of the Committee, there should be more explicit recognition in the Act of the importance of security of personal information to the protection of individual privacy. This recognition could be provided by the inclusion of a new provision imposing a specific legal duty on institutions to ensure the administrative, physical and technical security of personal information held by an institution. (see Standing Committee recommendation #32, p. 51)

33. Disposal of Personal Information

Issue:

Inconsistent wording of Part II of the Act may lead to confusion and misinterpretation.

Proposed Amendments:

Amend section 30(4) of the Act as follows:

30.–(4) A head shall dispose of personal information in the custody or under the control of the institution in accordance with the regulations.

Rationale:

As currently worded, section 30(4) only speaks about personal information “under the control of the institution”. This is inconsistent with other provisions under Part II (e.g., sections 31, 32, 36(1) and 37(1)) which make reference to personal information in the custody and under the control of institution). There does not appear to be any substantive reason why section 30(4), the disposal provision, should only apply to personal information under the control of institutions.

The proposed amendment attempts to achieve consistency for the same expression, in order to avoid confusion and to aid understanding of the Act.

The IPC proposed similar amendment for section 40(4) in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Technical Issue IX). The suggested change was adopted by the Standing Committee in its report (see Standing Committee recommendation #81, p. 128).

34. Use and Disclosure of Personal Information

Issue:

The Act refers to both persons and individuals which may lead to confusion and misinterpretation of the application of the protection of privacy provisions (Part II) of the Act.

Proposed Amendments:

Amend sections 31 and 32 of the Act as follows:

31. An institution shall not use personal information in its custody or under its control except,

(a) if the individual to whom the information relates has identified that information in particular and consented to its use;

32. An institution shall not disclose personal information in its custody or under its control except,

(b) if the individual to whom the information relates has identified that information in particular and consented to its disclosure.

Rationale:

The word “person” is not defined in the Act and its definition in the Interpretation Act includes corporations. However, the Act‘s definition of personal information relates only to recorded information about an “identifiable individual”. Based on that definition, Part II of the Act, in which sections 31(a) and 32(b) are found, only protects the personal information of individuals.

The proposed amendments, by referring to the individual and not to persons, are consistent with the intent of Part II.

The IPC proposed similar amendments for sections 41 and 42 in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Technical Issue VIII). The suggested change was adopted by the Standing Committee in its report (see Standing Committee recommendation #81, p. 128).

35. Disclosure of Personal Information to Outside Contractors

Issue:

The Act does not explicitly provide for the disclosure of personal information to persons outside the institution who provide necessary and proper services to the institution.

Proposed Amendments:

Amend section 32 of the Act to include a provision stipulating that disclosure of personal information to persons providing services to government institutions is only permissible under terms and conditions similar to the conditions for research agreements set out in section 14(1)(e).

Rationale:

Section 32(d) states:

32. An institution shall not disclose personal information in its custody or under its control except,

(d) if the disclosure is made to an officer or employee of the institution who needs the record in the performance of his or her duties and if the disclosure is necessary and proper in the discharge of the institution’s functions.

However, circumstances may also arise when the disclosure of personal information to persons outside the institution who provide service to the institution, is also necessary and proper. Such persons may include legal counsel retained by the institution, auditors, or translators.

The IPC believes that disclosure of personal information to persons providing services to institutions should be permitted, under the same conditions applying to disclosure to officials or employees of the institution (i.e., the record must be needed for the performance of duty and the disclosure is necessary and proper in the discharge of the institution’s functions).

The proposed amendment would require institutions to enter into contractual agreements similar to research agreements prior to personal information being disclosed to persons providing services to the institution. The agreements would prescribe the terms and conditions necessary to guard the security and confidentiality of personal information released to these persons. The IPC believes that such agreements would prevent unauthorized disclosures of personal information by persons outside of institutions.

36. Disclosure of Personal Information in Accordance with Part I of the Act

Issue:

Section 32(a) permits an institution to disclose personal information “in accordance with Part I” of the Act. However, it is not clear whether disclosure is permissible under this provision only in the context of a request for access under Part I of the Act.

Proposed Amendments:

Amend section 32(a) to make it clear that the exception to the prohibition against disclosure applies only in the context of a request for access to the personal information under Part I of the Act.

Rationale:

In order to justify unilateral disclosures of personal information, in the absence of a request for access to the information, municipal institutions have relied on section 32(a), in conjunction with the section 14 “personal information” exemption. Thus, institutions have interpreted section 32(a) to mean that they can disclose personal information in accordance with the principles set out in section 14 (e.g., the information can be disclosed as long as the disclosure would not constitute an “unjustified invasion of privacy”), even where there is no access request.

However, where no request has been made, there is no safeguard of notification of the person to whom the information relates. The individual concerned would be deprived of the opportunity to be heard in relation to the issue of whether his or her personal information should be disclosed.

The Commissioner has found that section 32(a) can only apply in the context of a request for access to information under Part I of the Act (or Part II of the provincial Act).

The Commissioner’s interpretation reflects the Legislative history of the section. The Williams Commission stated:

… one obvious exemption to the no-transfer rule relates to access to personal data granted pursuant to a freedom of information request.” [emphasis added]

Assuming that a proper judgment has been made of the need for allowing third parties access to personal information in pursuit of freedom of information objectives, transfer pursuant to the freedom of information provisions must count as a legitimate exemption to the no-transfer rule. (Vol. 3, pp. 694-695)

This proposed amendment would strengthen one of the fundamental purposes of the Act, which is to protect the privacy of individuals. At the same time, this amendment would not significantly erode the principle that the public should be given broad access to government information, since the amendment would affect access only to personal information.

37. Consistent Purpose

Issue:

Sections 31(b) and 32(c) permit the use and disclosure of personal information for the purpose for which it was obtained or compiled or for a “consistent purpose.” Section 33 then provides that, where personal information has been collected directly from the individual, the purpose of a use or disclosure is a consistent purpose only if the individual might reasonably have expected such a use or disclosure.

The constraint on the use of personal information in section 33 does not apply if information has been collected indirectly. Also the reasonable expectation standard used in the section is vague and is, therefore, liable to be interpreted too broadly.

Proposed Amendments:

Amend section 33 to delete the reference to directly collected information and provide that the purpose of a use or disclosure of personal information is a consistent purpose under sections 31(b) and 32(c) only if the purpose has a reasonable and direct connection to the original purpose.

Rationale:

There is no apparent reason why the consistent purpose rule should be restricted to information that is collected directly from an individual.

The current wording, which refers to the reasonable expectations of an individual, is vague and is, therefore, subject to being applied too broadly. It is difficult to say what an individual’s expectations would or should be in a given case. The expectations could also be manipulated inappropriately by institutions simply advising individuals of the use or disclosure. Also, since the IPC is proposing to extend the consistent purpose definition to indirect collections, the expectations of the individuals to whom the information relates become less relevant.

The proposed change would enhance privacy protection by introducing a more objective standard, which is liable to be interpreted more narrowly. It would also clarify the meaning of consistent purpose in the case of indirect collections of personal information.

Part III — Appeals

38. Extending the Appeal Period

Issue:

Currently the Act does not explicitly provide the Commissioner with the authority to extend the time for filing an appeal, even where it would be justified in the circumstances and no significant prejudice would result.

Proposed Amendments:

Amend section 39 of the Act as follows:

39.–(2) An appeal under subsection (1) shall be made within thirty days after notice was given of the decision appealed from by filing with the Commissioner written notice of appeal.

(2a) The Commissioner may extend the 30 day time period referred to in subsection (2), where special circumstances exist.

Rationale:

A strict reading of section 39(2) indicates that the provision is mandatory — an appeal must be filed with the Commissioner within 30 days after notice was given of the decision. The section does not appear to allow the Commissioner to extend the 30 day appeal period even for a serious cause and where no one is prejudiced and the delay is reasonable. In addition, there is no other provision in the Act which allows the Commissioner to extend the 30 day period.

In provincial Order 155, former Commissioner Linden held, in effect, that he had the power to extend the 30 day appeal period in section 50(2) of the provincial Act in certain circumstances (i.e., where the lapse of time after the date when an appeal should have been filed is not significant, and where no prejudice has been shown by the institution or any other person affected by the delay). The former Commissioner interpreted section 50(2) liberally in favour of access to the process, rather than strictly to deny access.

The proposed amendment codifies this view and expressly grants the Commissioner the power, in special circumstances (which he or she will define), to extend the 30 day appeal period in section 39(2). The amendment removes any uncertainty as to whether he or she has the jurisdiction to extend the period under the present provision.

Situations will occur when there will be a legitimate need to extend the time limit under section 39(2). The proposed amendment gives credence to public concerns about equity and justice prevailing over strict adherence to time limits for no reason other than the lack of power to extend the time limit. The underlying principles of the Act will be well served by the giving of such a power to the Commissioner.

The proposed amendment, by giving the Commissioner the power to extend the appeal period in “special circumstances”, gives the Commissioner more flexibility. It permits the Commissioner to look beyond the cause of the delay to the effect of the delay.

The IPC proposed an amendment for section 50(2) in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Policy Change XI). That suggested change was adopted by the Standing Committee in its report as follows:

It is important that rigid adherence to time limits should not prevail over fairness to users of the Act. In the view of the Committee, the principles of the Act would be better served if the Act is flexible enough to accommodate special circumstances. In this respect, permitting the Commissioner to extend the time for filing an appeal to reflect the circumstances of each case is preferred over establishing another fixed time limit, such as 60 days. (see Standing Committee recommendation #43, p. 67)

39. Notification of Affected Persons

Issue:

A strict reading of section 39(3) of the Act requires the Commissioner, upon receipt of a notice of appeal, to notify all affected persons. However, there are times when such notification is unnecessary or inappropriate.

Proposed Amendments:

Amend section 39(3) of the Act as follows:

39.–(3) Upon receipt of a notice of appeal, the Commissioner shall inform the head of the institution concerned and may inform any other affected person of the notice of appeal.

Rationale:

Circumstances exist where it is unnecessary or inappropriate to inform all parties potentially affected by an appeal. This fact was noted in Management Board’s “Freedom of Information and Protection of Individual Privacy Manual” in its discussion of section 50(3) of the provincial Act:

The determination as to whether a person is affected by an appeal is made based on the facts of each appeal. In limited circumstances, the Commission [sic] may defer notification or not notify as the circumstances dictate. For example, where sensitive personal information is not likely to be disclosed in the appeal, notification of the initiation of an appeal may not be provided. Similarly, where it would be reasonable to assume that notification to the affected party would result in unnecessary shock or anxiety, notification of the initiation of an appeal may not be provided. (p. 6-3)

The proposed amendment clarifies this issue, and provides the Commissioner with the discretion to notify or not, as the facts of the appeal dictate.

40. Examination of Original Records

Issue:

Section 41(6) of the Act allows the head of an institution to require the Commissioner to examine the original record at its site. This requirement is unnecessarily broad and has led to delays in the appeal process.

Proposed Amendments:

Amend section 41 of the Act as follows:

41.–(4) In an inquiry, the Commissioner may require to be produced to the Commissioner and may examine any record that is in the custody or under the control of an institution, despite Parts I and II of this Act or any other Act or privilege, and may enter and inspect any premises occupied by an institution for the purposes of the investigation.

(6) Despite subsection (4), a head may require that the examination of a record by the Commissioner be of the original at its site where it would not be reasonably practicable to reproduce the record or a part thereof by reason of its length or nature.

Rationale:

A strict reading of section 41(6) is that a head of an institution may, for any reason, require the Commissioner or his/her staff to examine the record at issue at the site of the record. In addition, section 41(6) could be interpreted to mean that where the head requires the examination of a record by the Commissioner of the original at its site, he or she may refuse to provide the Commissioner with a copy of the record.

As currently worded, section 41(6) has the potential to be used:

by a head of an institution to delay the Commissioner’s review of the head’s decision,

to defeat the purposes of the provisions in Part I and III of the Act which impose precise time limits in order to facilitate effective public access, and

to tax the resources of the Commissioner, particularly where the site of the original record is outside Metropolitan Toronto.

The proposed amendment clarifies the scope of section 41(6). It provides that a head may only require the examination of an original record at its site where it would not “be reasonably practical to reproduce the record or part thereof by reason of its length or nature”. By necessary implication, the head, by reason of the proposed amendment, when read in conjunction with section 41(4), may only refuse to provide the Commissioner with a copy of a record where it would not be reasonably practical to reproduce the record by reason of its length or nature.

The IPC believes the proposed amendment makes practical sense. The Commissioner would retain the authority to examine the original records, and institutions would retain the discretion to require examination of originals at their premises.

The IPC proposed a similar amendment for section 52(6) in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Policy Change XI). That suggested change was adopted by the Standing Committee in its report as follows:

In the view of the Committee, the current wording of subsection 52(6) could cause serious inconvenience to the Commissioner’s Office, and could allow the head of an institution to delay the appeal process. Moreover, unrestricted use of the authority to require on-site inspection of a record could impose unnecessary costs on the Commissioner’s Office, especially where the site of a record is outside Metropolitan Toronto.

The Committee, therefore, recommends that subsection 52(6) be narrowed to permit the head of an institution to require on-site inspection of an original record, only where it would not be reasonable to reproduce the record due to the nature or length of the record. In all other cases, an institution should be required to produce a copy of the record. (see Standing Committee recommendation #45, p. 69)

Part IV — General

41. Enforcement of Orders

Issue:

The Act does not contain an efficient remedy for the Commissioner to enforce orders. Where an institution fails to comply with a Commissioner’s order under the Act, the only remedy is to initiate an offence proceeding under to section 48 of the Act and the Provincial Offences Act, or to apply to the Ontario Court (General Division) Divisional Court for an order to compel the institution to comply with the order.

Proposed Amendments:

Amend Part IV of the Act so that an order may be filed by the Commissioner or a party in a court of competent jurisdiction, and thereafter the order shall be deemed to be an order of the court for the purposes of enforcement.

If parties may file the IPC’s orders, there should also be a provision whereby a party filing an order must give notice of the filing to the Commissioner within 10 days of filing.

Rationale:

The proposed amendment is derived from section 19 of the Statutory Powers Procedure Act, which provides:

19. A certified copy of a final decision or order of a tribunal in any proceeding may be filed in the Ontario Court (General Division) by the tribunal or by a party and, if it is for the payment of money, it may be enforced in the same manner as an order of that court, and in all other cases by an application by the tribunal or by such party to the court for such order as the court may consider just.

Such a provision would assist the enforcement of the Commissioner’s orders.

42. Calculations of Fees

Issue:

The Act is not clear as to whether the costs listed in section 45(1) are the only costs that a head of an institution may require a requester to pay. In addition, the wording of sections 45(1)(a) and (c) may result in confusion.

Proposed Amendments:

Amend section 45(1) of the Act as follows:

45.–(1) If no provision is made for a charge or fee under any other Act, a head shall require the person who makes a request for access to a record to pay costs no greater than the following:

(a) a search charge for every hour of manual search required in excess of two hours to locate the record;

(c) computer and other costs incurred in locating, retrieving, processing and copying the record; and

Amend section 45 of the Act to require institutions to demonstrate to the requester all costs associated with a request.

Rationale:

By specifically providing that a head may not require a person who seeks access to a record to pay costs greater than the amounts specified in section 45(1) and in Regulation 823, the proposed amendment ensures that fees cannot be used as a means to deter requests for access to records.

Currently, sections 45(1)(a) and (c) refer to “a record”. It appears that this is a reference to the record that is the subject matter of the requester’s access request. However, the reference to “a record” may result in some confusion.

By changing “a record” to “the record”, the proposed amendments confirm that the costs that a requester is required to pay are based on the time that is takes for an institution to manually locate the requested record (not any other record), and the computer and other costs incurred by the institution in locating, retrieving, processing and copying the requested record.

The IPC proposed a similar wording amendment for section 57 in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Clarification XV). The suggested change was supported and further elaborated by the Standing Committee in its report as follows:

The Committee believes the Act should be amended to make it clear that institutions cannot charge fees for services not described in subsection 57(1). In addition, institutions should be required to demonstrate all of the costs associated with a particular request. Such an amendment would help to ensure that the fee structure is applied consistently by all institutions, and that fees are not used by institutions to deter the public from using the Act….

The reference to “a record” creates some confusion, since it is not clear that the reference is to the record which is the subject of a request. If the wording of subsection 57(1)(a) and (c) was changed from “a record” to “the record”, it would be clear that a person can only be required to pay fees in respect of the record requested, and not some other record. (see Standing Committee recommendations #51-53, pp. 82-83)

43. Appealing Fee Waiver Decisions

Issue:

Inconsistent wording of the Act leads to confusion and misinterpretation by users.

Proposed Amendments:

Amend section 45(5) of the Act as follows:

45.–(5) A person who is required to pay a fee under subsection (1) may appeal to the Commissioner for a review of the amount of the fee or the head’s decision not to waive the fee.

Rationale:

The terminology currently used in section 45(5) is inconsistent with that used in other similar provisions of the Act. Sections 21(8)(a), 22(1)(b), 22(2)(d) and 22(3)(d) all use the words “may appeal the decision to the Commissioner” or “may appeal to the Commissioner for a review of the decision”.

To eliminate any confusion that may arise with respect to rights and powers that flow from “a review” as opposed to “an appeal”, the proposed amendment uses the same words referenced in sections 21(8)(a), 22(1)(b), 22(2)(d) and 22(3)(d) of theAct.

The IPC proposed similar amendment for section 57(4) in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Technical Issue XI). The suggested change was adopted by the Standing Committee in its report (see Standing Committee recommendation #81, p. 128).

44. Notice of the Right to Appeal Fee Waiver Decisions

Issue:

The Act provides a requester with the right to appeal to the Commissioner a head’s decision about a fee waiver. However, theAct does not require the institution to inform the requester of such a right. Without such notification, the requester may be unaware of this right, making it less effective.

Proposed Amendments:

Amend section 45 to require institutions to provide requesters with a notice of the right to appeal a refused fee waiver.

Rationale:

Section 45(4) requires a head to waive a fee if it is fair and equitable to do so. In addition, section 45(5) gives a requester the right to appeal the head’s decision. However, the Act does not require the head to notify the requester of this right.

The proposed amendment will ensure that requesters are made aware of their right to appeal a head’s denial of a fee waiver request.

45. Commissioner’s Powers

Issue:

There is no specific provision in the Act which gives to the Commissioner the power to review, at his/her own initiative and outside the context of an appeal, the access procedures of an institution, for the purpose of ascertaining whether the institution is complying with the requirements of the Act.

In addition, there is no specific provision in the Act which gives to the Commissioner the power to:

review records of personal information in the custody or under the control of an institution, or

investigate an act or practice of an institution, at his/her own initiative or following a complaint, for the purposes of ascertaining whether the institution is complying with the requirements of Part II of the Act.

Proposed Amendments:

Amend section 46 of the Act as follows:

46. The Commissioner may

(ia) conduct a review of the access procedures of an institution or a review of records of personal information in the custody or under the control of an institution for the purpose of ascertaining whether an institution is complying with the requirements of this Act.

(iia) investigate an act or practice of an institution that may breach a privacy principle of this Act.

46a.–(1) For the purposes of the performance of the Commissioner’s function under subsection 46(ia) or subsection 46(iia) of the Act, an employee of the Commissioner, authorized by the Commissioner for the purposes of this section may, at any reasonable time of the day, after notifying the head of the institution of his or her purpose, enter the premises occupied by the institution and inspect any records that are kept at those premises and any systems and procedures that are in place at those premises and that are relevant to the performance of the function.

(2) The head shall provide the authorized person with all reasonable facilities and assistance for the effective exercise of his or her function under subsection (1).

Rationale:

Despite the lack of the specific provisions, the Act imposes a duty on the Commissioner to perform certain functions that cannot be performed in the absence of a power to:

review access procedures of an institution,

review records of personal information in the custody or under the control of an institution, and

investigate an act or practice of an institution that may breach a privacy principle of the Act.

For example, under section 46(b) of the Act, the Commissioner is given the power, after hearing the head of an institution, to order an institution to cease a collection practice, and destroy collections of personal information that contravene the Act. The Commissioner cannot accomplish this function if he/she does not have the power to independently review the records of personal information held by an institution, or to investigate the acts and practices of an institution, to determine if an institution’s collection practice is in accordance with sections 28 and 29 of the Act.

Arguably, these powers are necessarily implicit in the Act. Section 27(b) of the Interpretation Act, provides that in every Act, unless a contrary intention appears, where power is given to a person, officer or functionary to do or to enforce the doing of an act or thing, all such powers shall be understood to be given as are necessary to enable the person, officer or functionary to do or enforce the doing of an act or thing. The provisions of the Interpretation Act apply to the Act.

In addition, the common law doctrine of implied jurisdiction which permits, in some cases, an agency to exercise powers which go beyond the powers explicitly set out in the legislation, may apply. The doctrine applies where the implied power, as a matter of practical necessity, is required for the agency to accomplish its mandate, and where the implied power is not one to which the legislature has clearly addressed its mind. Both of these requirements are met in the case of the Commissioner. The Commissioner must, as a matter of practical necessity, have the power to conduct reviews of access procedures, to conduct reviews of records of personal information and to investigate complaints in order to accomplish an important part of his/her mandate. There are no provisions in the Act which clearly provide otherwise. However, the Commissioner should not have to rely on implied powers to perform such an important part of his/her mandate.

In practical terms, the absence of express powers in the Act has meant that the Commissioner has sometimes had to rely on the good will of institutions to accomplish this part of his mandate. This has had an effect on the manner and the timeliness in which he has been able to perform his function in ensuring compliance with the Act.

The proposed amendments codify the Commissioner’s authority to conduct, at his/her own initiative or following a complaint, reviews of access procedures, reviews of records of personal information, and investigations of the acts or practices of institutions that may breach the privacy principles of the Act.

The proposed amendments will ensure the Commissioner’s ability to perform an important part of his or her mandate independently, efficiently and effectively. They will resolve any doubts or uncertainties that institutions may have as to whether or not they should allow the Commissioner and his/her staff access to their systems and procedures of records management and personal information banks.

The IPC proposed a similar amendment for section 59 in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Policy Change XV). That suggested change was adopted by the Standing Committee in its report as follows:

In order to effectively carry out his or her mandate, the Commissioner’s authority must be clear. It is apparent that implied authority is not sufficient to ensure the full co-operation of institutions with the Commissioner when he or she feels it is necessary to review the procedures of institutions so as to assess compliance with the Act.

In the view of the Committee, it would be consistent with the intent of the Act to provide the Commissioner with statutory authority to conduct, at his or her own initiative or following a complaint, a review of the access procedures of an institution to determine whether an institution is complying with the Act. In addition, it would be consistent with the Act’s intent to give the Commissioner express power to review records of personal information held by an institution, and to investigate an act or practice of an institution to assess compliance with the Act’s provisions governing the collection, use, disclosure and retention of personal information. (see Standing Committee recommendation #69, pp. 110-111)

46. Practices in Contravention of the Act

Issue:

One of the purposes of the Act is “to protect the privacy of individuals with respect to personal information about themselves held by institutions…”. However, the Commissioner’s powers to ensure that institutions comply with the privacy provisions and principles of the Act are limited.

Proposed Amendments:

Amend section 46(b) of the Act as follows:

46. The Commissioner may,

(b) after hearing the head, order an institution to,

(i) change or cease a collection, use, retention, disclosure, or disposal practice, and

(ii) destroy collections of personal information,

that contravene this Act….

Rationale:

The IPC recommends providing the Commissioner with the appropriate authority to order an institution to change or cease a collection, use, retention, disclosure, or disposal practice. The rationale for this recommendation is that it would give the Commissioner more flexibility in terms of making recommendations to institutions and ensuring that institutions follow through with any recommendations that are made.

If the Commissioner only has the power to order an institution to cease a practice, there is a possibility that a previous practice could be replaced with a practice that also contravenes the Act. In order to avoid this situation, the Commissioner needs to have the power to order changes in practices that institutions are obliged to comply with.

The IPC proposed an amendment for section 59(b) in its submission to the Standing Committee on the Legislative Assembly for the review of the provincial Act (see Policy Change XV). That suggested change was adopted by the Standing Committee in its report as follows:

If one of the duties of the Commissioner under the Act is to ensure that institutions are complying with the privacy provisions of the Act, he or she must have the powers necessary to perform this duty. Other jurisdictions have recognized the need for remedial provisions to redress improper privacy practices of institutions. The Committee believes it is time that Ontario’s legislation fully recognized this need.

Therefore, the Committee recommends that the Commissioner be given, in addition to the existing power to order an institution to cease a collection practice, the specific authority to order an institution to cease a use, disclosure or retention practice that contravenes the Act. (see Standing Committee recommendation #70, p. 113)

47. Commenting on Access and Privacy Implications

Issue:

As the government expands its use of electronic information technology for the collection, retention, use and disclosure of information, the need to address access and privacy issues prior to implementing any new technology becomes increasingly apparent.

Section 46 of the Act authorizes the Commissioner to offer comment on the privacy protection implications of proposed programs of institutions. However, it does not authorize the Commissioner to comment on the access implications of proposed programs.

Proposed Amendments:

Amend section 46(a) of the Act to authorize the Commissioner to offer comment on both the access and privacy protection implications of programs of institutions. The Standing Committee may want to consider British Columbia’s Freedom of Information and Protection of Privacy Act, 1992 as a model for outlining the powers of the Commissioner.

Rationale:

The Williams Commission originally proposed the creation of two administrative bodies to oversee privacy and access legislation. One body would resolve disputes in relation to requests for access to government information (i.e., personal information and general records), while the other would function as a data protection authority.

When access and privacy protection were combined into one legislative framework, only one administrative body was created to carry out both functions. Thus, the IPC was created to oversee both freedom of information and privacy protection. However, the initial conceptualization of two distinct administrative bodies with very different functions was still reflected, to some extent, in the legislation. For example, section 46(a) authorized the Commissioner to comment on the privacy protection implications of proposed programs, but not the access implications.

Other jurisdictions, in which access and privacy protection have been combined into one legislative framework, extend the powers of the Commissioner to cover both functions. For example, section 42(1)(f) of British Columbia’s legislation authorizes the Commissioner to: “comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies.”

The combination of access and privacy protection in one legislative framework, requires the Commissioner to fulfil a much broader role than was initially anticipated by the Williams Commission. Since the Commissioner functions as an advocate of both access and privacy, the IPC recommends that the Act be amended to provide the appropriate statutory authority. Specifically, section 46(a) should be amended to include the power to comment on access as well as privacy implications of programs of institutions.

48. Record Linkages

Issue:

While the use and disclosure of personal information for record linkages, commonly referred to as computer matching, may increase the efficiency and effectiveness of the administration of government programs, the technique may be error-prone and privacy invasive. Supporters of record linkage initiatives argue that it is an effective way to detect and deter fraud, waste and abuse within government programs. However, critics argue that the benefits have been largely overstated and unsubstantiated and that, in many cases, such initiatives constitute an unwarranted invasion of privacy. The invasion of privacy largely stems from the collection, use and disclosure of personal information for purposes which are substantially different from that for which it was originally collected, without the knowledge or consent of the person to whom the information relates.

Proposed Amendments:

Amend section 46 to provide the Commissioner with the authority to comment on the implications for privacy of using or disclosing personal information for record linkages. The IPC prefers the term “record linkages” to “computer matching” because it is more general, incorporating all techniques that can be used for linking personal information records. For example, the linking of one or more personal information records through their availability on a local area network may not be considered to be “computer matching” as it is typically defined. However, this type of record linkage practice has serious implications for privacy and should be subject to review by the Commissioner under the Act.

Rationale:

In light of the serious privacy implications, the IPC would like to have the opportunity to review and offer comment on initiatives involving the linking of records of personal information. This would help to ensure that an appropriate balance is struck between administrative efficiency and the protection of privacy during the course of administering government programs and services, and that record linkage initiatives are adequately justified.

Legislation from other jurisdictions contains provisions for the review of record linkage initiatives by data protection authorities. For example, section 42(1)(h) of British Columbia’s Freedom of Information and Protection of Privacy Act, 1992 states that the Commissioner may “comment on the implications for protection of privacy of using or disclosing personal information for record linkage”.

Legislation from Quebec, An Act respecting Access to documents held by public bodies and the Protection of personal information, requires that agencies submit written agreements on record linkage programs to the Commission for an opinion. The agreement only comes into force upon a favourable opinion of the Commission.

In response to the recommendations of the Standing Committee on the Legislative Assembly for the review of the provincialAct, Management Board Secretariat is currently in the process of developing a directive and guidelines on computer matching of personal information. The purpose of the directive and guidelines is to balance the privacy interests of individuals with the efficient use of computerized personal information.

The directive will require that institutions notify the Commissioner of computer matching initiatives prior to their implementation by providing a copy of the computer matching assessment. The Commissioner has the opportunity to comment on each initiative before it starts. The proposed amendment to the Act will provide statutory authority to support this requirement of the directive and guidelines.

Since the directive and guidelines will apply only to provincial institutions, municipal institutions will not be required to notify the Commissioner of record linkages. Nevertheless, the IPC would like to have the authority to comment on these initiatives when asked to do so or when privacy implications of such initiatives come to the Commissioner’s attention. Also, by including this provision in the Act, the IPC hopes that institutions will recognize that there are privacy implications associated with record linkages and that the Commissioner is available to provide expert advice to help minimize the threat to privacy.

49. Private Sector Distribution of Government Records

Issue:

Government contracts which give private vendors exclusive distribution rights to government-held information may impair the public’s right of access.

Proposed Amendments:

Amend Part IV of the Act to prohibit institutions from giving private sector vendors exclusive distribution rights to government data if such an arrangement impairs the right of the public to access such information.

Rationale:

This amendment is designed to deal with an area of growing concern to those seeking access to public records. Government institutions are increasingly contracting with private sector vendors to provide government-held information, usually in computerized form, to members of the public. An example is the Ontario Securities Commission (OSC) which, by law is required to make certain information available to the public. The OSC makes available its “public records” through a contractual arrangement with a private vendor. For a fee, the private sector vendor provides this information to the public.

Private sector organizations are not, however, covered by the Act. There is a concern, therefore, that there is no limit on the fees which they may charge or on the conditions which they may impose on a member of the public who is attempting to exercising his or her right of access to government information.

In Connecticut, a recent amendment to the state freedom of information legislation provides as follows:

(b) Except as otherwise provided by state statute, no public agency shall enter into a contract with, or otherwise obligate itself to, any person if such contract or obligation impairs the right of the public under this chapter to inspect or copy the agency’s non exempt public records existing on-line in, or stored on a device or medium used in connection with, a computer system owned, leased or otherwise used by the agency in the course of its governmental functions. (Public Act No. 91-347, An Act concerning Computer-Stored Public Records, s. 1-19a)

An explanation to the amendment provides as follows:

This subsection provides that a public agency shall not impair by contract or otherwise any right of the public under the Freedom of Information Act with respect to an agency’s computerized, non-exempt public records. It makes clear that an agency may not obligate itself in any manner that would restrict, or place conditions or expenses on, the disclosure of information in addition to the restrictions, conditions or costs set forth in the Freedom of Information Act. Without this language, it would be possible for an agency to prevent or discourage persons from obtaining information to which they are legally entitled.

The IPC believes that a similar amendment to the Act would enhance the public’s right of access to government information and would clarify the government’s obligations in an area of growing concern, namely, the public’s right to government records.

50. Pro-active Consideration of Access and Privacy Implications

Issue:

As governments increasingly adopt technology as a way of improving their efficiency, and as more government records are automated, there is a need to ensure that Ontario’s freedom of information and privacy scheme keeps pace with these changes. It is essential that computer systems and other advanced technologies do not conspire to defeat access to government records or threaten the protection of personal information offered by the Act.

Proposed Amendments:

Amend the Act as follows:

Amend section 47 by inserting a new subclause (c) as follows:

47. The Lieutenant Governor in Council may make regulations,

(c) respecting the standards for privacy protection and access to records maintained electronically.

[The present sections 47(c) through (l) would become sections 47(d) through (m).]

Introduce the following regulation regarding access to government-held information:

When records maintained electronically include items of information that would be available under the Act, an institution in designing its information retrieval methods, whenever practicable and reasonable, shall do so in a manner that permits the retrieval and severance of available items in order to foster maximum public access.

Introduce a regulation that requires institutions to conduct a privacy impact assessment, as defined in the regulation, prior to the introduction of any computer information systems.

Rationale:

Profound technological advances have begun to transform the basic nature of information and information management. Today countries around the world are increasingly focusing on creating and managing the electronic or information “highway” — linked networks providing access to communications and information services including voice, text, data, graphics and video services. This system of interconnecting electronic networks will revolutionize the way in which people communicate, as well as how governments operate and relate to the public.

The impact of computer information systems is already being realized in Ontario. With computerization and the implementation of a variety of new information technologies, the conventional paper record file systems are giving way to powerful electronic information systems. It is likely that the use of computer databases as a primary means of records maintenance will soon become the rule rather than the exception. It is clear that governments are moving, with increasing speed, toward the creation of a new electronic records environment in which they can operate with new standards of speed and efficiency.

As this occurs, new challenges arise for public access to government information, the protection of informational privacy, and the application of freedom of information and protection of privacy legislation in this electronic age.

Unlike some jurisdictions, the Act explicitly recognizes electronic records under the definition of a record as follows:

2.–1 In this Act,

“record” means any record of information however recorded, whether in printed form, on file, by electronic means or otherwise, and includes,

(a) correspondence, a memorandum, a book, a plan, a map, a drawing, a diagram, a pictorial or graphic work, a photograph, a film, a microfilm, a sound recording, a videotape, a machine readable record, any other documentary material, regardless of physical form or characteristics, and any copy thereof, and

(b) subject to the regulations, any record that is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution;

This inclusion means that the public has a right of access to electronically maintained government-held information and a right of protection to electronically maintained personal information. However, there are access and privacy issues relating to electronic records and computer information systems that are not now explicitly addressed by the Act.

Turning first to the access issues relating to electronic records — the primary problem is that without considering all access issues (e.g., what information should be accessible, to whom, in what circumstances, and in what format) during the planning and design of a computer information system, the system itself can function as a de facto barrier to access to government information.

The very choice of technology can impact on the ability to access information. Without appropriate information technology, an individual may be denied access to required information. However, public access to government-held information should mean that there is a reasonable way to acquire the information on the part of the individuals who seek it.

Despite the promise of universal access along the information highway, with any computer information system, a key issue is equity of access. If this issue is not considered in the selection of technology and design of information systems, the result may well be a society of information “haves” and “have-nots”: a world of the “information rich” and the “information poor”. This gap reflects a difference in power and a difference, ultimately, in the ability to exercise democratic rights.

Although information systems can offer great flexibility in how data can be used and manipulated, a system can only do what it is designed to do with the information it has available. The IPC maintains that, due to the complexity and magnitude of computer information systems, the access provisions of the Act cannot be tacked on as an after-thought; they must be key considerations during the selection of technology and the design of the data models, structures, and systems.

The proposed amendments place an obligation on government institutions to ensure, whenever practicable and reasonable, maximum public access to electronically maintained government information. To do that, institutions will have to design information systems with equality of access and the broadest possible level of access in mind. Access requirements will have to be built into all information and information technology activities undertaken by institutions. The proposed amendments will also help ensure that institutions do not allow the technology to be the sole determinant of what information is disseminated and how.

Just as there is a need to address access considerations in the planning and design stages of a computer information system, so too is there a need for an institution to be proactive in its approach to privacy protection.

In today’s “information society” there is concern that information technology, without proper controls, may result in a loss of personal privacy. This concern has been heightened over the years by the advent of new computer-based information technologies which permit the rapid accumulation and exchange of personal data on large numbers of individuals.

Although Part II of the Act is, in essence, a data protection code based on fair information practices, the IPC believes there is now a need to go beyond the current requirements of the Act and for institutions to:

consider the impact each new information technology and system will have on privacy,

ensure that measures are available to ensure that levels of privacy can be maintained, and

design effective and comprehensive privacy protection, in accordance with the Act, into all computer information systems as they are being designed.

With each new technological advance or government application, the IPC questions whether privacy has received adequate consideration and protection. However, it would be far more effective for institutions to integrate the privacy agenda into their systems design and business operations. This is what the proposed amendments seek to accomplish. They establish an explicit obligation on government institutions to take a proactive approach to privacy protection.

The IPC maintains that the nature of information technology is such that privacy protection cannot be an after-thought. Without this proactive approach, some of the rights under the Act may be nullified. For example, if personal information is stored electronically and the system is not designed to specifically allow the individual to whom the personal information relates (the data subject) access to his/her own personal information, then the right under section 36 may be lost.

This approach need not result in a compromise or dilution of the potential of any technology or system. Protection of privacy should not be viewed as an impediment to progress. Rather there can be a successful convergence of disciplines which results in the enhancement of both privacy protection and government service delivery.

It is not possible today to fully anticipate the impact of technology tomorrow. However, the proposed amendments posit a way to address access and privacy concerns in today’s technological environment, as well as to help prevent future abuses along the information highway.

51. Routine Disclosure/Active Dissemination

Issue:

Access to government-held information should be encouraged by means other than the formal request procedures which require a formal request under the freedom of information and protection of privacy legislation.

Proposed Amendments:

Amend section 50 of the Act to include the following provision:

The head of a public body shall prescribe categories of general records that are in the custody or under the control of the public body and are available to the public, on demand, without a request for access under this Act. This list should be published in an index.

In addition, the Act should be amended to explicitly require the list of general classes or types of records (municipal counterpart to the Directory of Records) to identify documents that could be made available routinely, without having to make a formal request under the freedom of information and protection of privacy legislation.

Rationale:

Although routine disclosure/active dissemination (RD/AD) are not specifically mandated by statute in Ontario, section 50(1) of the Act makes provisions for the disclosure of information outside the formal access process — for example, through oral requests or in the absence of requests.

In addition, section 50(2) of the Act states that the Acts should not be applied to preclude access to general records to which access by the public was allowed by custom or practice which predated the legislation. Section 4 of the Act also encourages access to and disclosure of records to the extent possible.

By promoting RD/AD of government-held information, the government would be broadening access to records and promoting open government. A legislative amendment would further encourage institutions to take a more proactive approach to accessing government-held information.

There are many advantages to the government promoting RD/AD. Not only will the public be better-served and better-informed, but the practices of RD/AD can be cost effective for government organizations as well. Processing requests and appeals within the confines of the Acts is more expensive and time-consuming than providing access to pre-identified categories of records.

In the long-run, the practices of RD/AD can be labour saving. Classifying records as subject to RD/AD and ensuring that front line staff are aware of these classifications will make it easier for staff to provide information to the public in an efficient and non-bureaucratic manner. In addition, members of the public would be able to access general classes or types of records quickly and easily.

The Standing Committee on the Legislative Assembly made a similar recommendation during the review of the provincial Actas follows:

The suggestion was made to the Committee that government ministries should publish a list of all studies and policy documents that would be accessible under the Act. Such a list, it was suggested, would enhance public access to government information and reduce some of the difficulties requesters have experienced in gaining access to these types of documents….

The Committee believes it would be consistent with the principles of more open government if all institutions, not just ministries, were required to publish, on a periodic basis, a list of all studies and policy documents that are publicly available.(see Standing Committee recommendation #72, pp. 117-118)

52. Privative Clause/Charter Issues

Issue:

The Act does not contain a privative clause. In addition, it is not clear whether the Commissioner has the authority under theAct to consider Charter arguments in the context of access to information inquiries under Part I, or compliance investigations under Part II.

Proposed Amendments:

Amend Part IV of the Act to include a privative clause that states that the Commissioner has exclusive jurisdiction to exercise the powers conferred on him/her by the Act and to determine all questions of fact or law which arise in any matter before him/her. Further, the privative clause should state that every decision or other action of the Commissioner under the Act is final and binding for all purposes.

Rationale:

A privative clause gives a tribunal the right to be wrong on questions of fact or law, provided that such an error is made in the proper exercise of its jurisdiction.

The Legislative history of the provincial Act indicates that the principle reasons why the Legislature set up the IPC were that the Commissioner would be accessible to the public, and would be able to adjudicate quickly and at a minimal cost. The lack of a privative clause hinders these goals since, on the face of the Act, the grounds for judicial review are not limited.

To date, the Ontario Court (General Division) (Divisional Court) has accorded the Commissioner’s decisions a strong measure of deference (see, for example, Right to Life Association of Toronto v. Metro Toronto District Health Council (1991), 86 D.L.R. (4th) 441, and John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767). The proposed amendment would clarify the Legislature’s intention that the Commissioner’s decisions are to be accepted by the parties as a final resolution of their dispute.

In addition, the proposed amendment would address the issue of the Commissioner’s power to consider Charter arguments in the context of appeals or compliance investigations under the Act. Section 24(1) of the Charter states:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

In Cuddy Chicks Ltd. v. O.L.R.B. (1991), 122 N.R. 361, the Supreme Court of Canada, in deciding whether or not the O.L.R.B. was a “court of competent jurisdiction”, asked whether it was empowered by its mandating statute to determine questions of law. The Court found that under section 108 of the Labour Relations Act, which contains the words “The Board has exclusive jurisdiction … to determine all questions of fact or law that arise in any matter before it”, the O.L.R.B. did have the power.

Therefore, if the Act is amended in accordance with the above, it will be clear that the Commissioner meets the threshold test for determining whether or not the Commissioner has the power to consider Charter issues.

If the Commissioner’s power to consider Charter issues is clarified by this proposal, the Commissioner will be more accessible and will be able to provide better service to the parties to access to information inquiries and compliance investigations, by determining a wider scope of questions of law which arise in the inquiries or investigations. Parties would be able to haveCharter issues adjudicated upon by the Commissioner, and would not be required to seek a hearing on these issues from another tribunal or a court.

In summary, the proposed amendment would help to clarify the powers of the Commissioner and would allow the Commissioner to achieve his/her goals under the Act, which include being accessible, being responsive to policy concerns and adjudicating quickly, efficiently and at a minimal cost to all parties.

53. Legislative Review

Issue:

Section 55 of the Act requires the Standing Committee on the Legislative Assembly to conduct a comprehensive review of theAct and to make recommendations regarding amendments to the Act. However, the Act does not have any provision for further review of the legislation.

Proposed Amendments:

Amend section 55 of the Act to require the Standing Committee on the Legislative Assembly to conduct a comprehensive review of both the Act and the provincial Act three years from the completion of this current review.

Make the consequential amendment to the provincial Act.

Rationale:

Ontario’s freedom of information and protection of privacy statutes provide the legislative framework for access to government records and the protection of personal information. However, as demonstrated between the time of the review of the provincialAct and this current review, the nature of access and privacy issues is constantly evolving and changing. The development and application of new technology, the differing priorities of governments, and the changing expectations of the public, all contribute to the need for a continuing review of Ontario’s access and privacy protection legislation.

As the Act and the provincial Act are very similar, it is logical and expedient to consider both pieces of legislation together, rather than to require consequential amendments to each following separate reviews.

The Standing Committee discussed further legislative review of the provincial Act as follows:

The Committee believes that several important issues of immediate concerns were raised during the course of the Committee’s review. In addition, a number of long term issues were identified…. In light of the many emerging information and privacy issues, and the fact that the Act is still in its infancy, the Committee believes it would be worthwhile to assess the operation of the Act in another three years. (see Standing Committee recommendation #80, p. 128)

Appendix A — Suggested Changes to the Freedom of Information and Protection of Privacy Act

1. Duration of Cabinet Record Exemption

Issue:

Section 12(1) of the provincial Act contains a mandatory exemption for certain cabinet records. Section 12(2)(a) contains an exception to the mandatory exemption, which permits the disclosure of records which are more than 20 years old.

Proposed Amendments:

The time limit set out in the section 12(2)(a) exception to the cabinet records exemption should be reduced from 20 to 15years.

Rationale:

The decision-making processes of the Ontario Cabinet have been shielded from public view, as they have been in all other parliamentary jurisdictions. Further, access legislation in most parliamentary jurisdictions has recognized the need to protect cabinet confidences, through discretionary exemptions. The rationale for this exemption is based, at least in part, on the need to preserve the tradition of collective ministerial responsibility, and to encourage public officials to provide candid advice to Cabinet.

However, with the passage of time, the need for confidentiality lessens and, at some point, the public’s “right to know” becomes more important. Since the maximum duration of three Legislatures in Ontario is 15 years, the 20 year period appears to be excessive. A reduction to 15 years would strike a more reasonable balance between the public’s right of access to government information and the need for confidentiality of Cabinet confidences.

In British Columbia, the duration of the Cabinet records exemption is 15 years, and in Nova Scotia the Cabinet record exemption is only 10 years.

In its review of the provincial Act, the Standing Committee recommended the reduction of the time limit to 15 years (see Standing Committee recommendation #7, p. 18).

2. Exception to Relations with Other Governments Exemption

Issue:

Unlike the equivalent provision in the Act, section 15 of the provincial Act does not require a head to disclose a record where the government, agency or organization which supplied the record consents to the disclosure.

Proposed Amendments:

Add the following (in bold) to section 15:

15.–(1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,

(a) prejudice the conduct of intergovernmental relations by the Government of Ontario or an institution;

(b) reveal information received in confidence from another government or its agencies by an institution; or

(c) reveal information received in confidence from an international organization of states or a body thereof by an institution,

and shall not disclose any such record without the prior approval of the Executive Council.

(2) A head shall disclose a record to which subsection (1) applies if the government, agency or organization from which the information was received consents to the disclosure.

Rationale:

Section 15 of the provincial Act allows a head to refuse to disclose information which was received in confidence from another government or its agencies.

Section 9 of the Act contains an equivalent provision. However, it also contains the following provision:

(2) A head shall disclose a record to which subsection (1) applies if the government, agency or organization from which the information was received consents to the disclosure.

This considerably limits the application of the exemption. However, the provision does not exist in section 15 of the provincialAct. The result is that the public may be entitled to more information under the Act than under the provincial Act.

The IPC believes that if a government or a government agency consents to the disclosure of information which it supplied to an institution, the information should be accessible under the provincial Act as well as the Act. The proposed amendment would achieve this objective and would also make the two provisions consistent with one another.

3. Application of the Provincial Act

Issue:

Sections 65(2)(a) and (b) of the provincial Act state:

(2) This Act does not apply to a record in respect of a patient in a psychiatric facility as defined by section 1 of the Mental Health Act, where the record,

(a) is a clinical record as defined by subsection 35(1) of the Mental Health Act; or

(b) contains information in respect of the history, assessment, diagnosis, observation, examination, care or treatment of the patient.

In the absence of section 65(2)(b), the information described in it would be subject to the privacy rules of the Act.

Proposed Amendments:

Repeal section 65(2)(b).

Rationale:

Section 65(2)(b) provides that a class of records falls outside the jurisdiction of both the provincial Act and the Mental Health Act. This denies rights of access and correction to those individuals to whom such records relate. The recommendation would make the provincial Act more workable and strengthen its protection of privacy.

Appendix B — List of Suggested Changes to the Municipal Freedom of Information and Protection of Privacy Act

1. Extending Coverage of the Acts

Criteria should be developed to extend the coverage of the Act to other government bodies such as hospitals and universities. As well, coverage should be extended to self-regulated professions. The legislation in British Columbia provides a useful model for extending coverage.

If coverage of the Acts were extended to these bodies, it would make more information publicly available and enhance public accountability. In addition, it would ensure that privacy protection is available for the personal information collected by these bodies. Accordingly, the Acts should be amended to extend coverage to other government bodies.

2. Salaries of Public Officials/Employees

The Act should be amended to permit the disclosure of the actual compensation paid to all public employees, including officials and government appointees.

3. Plain Language

The IPC proposes that the Act be rewritten in plain language.

4. Definition of Officer

The Act should be amended to clarify that “officer”, when referring to a member or members of a municipal council, means:

(a) the head of council (i.e., mayor, chair, reeve, warden);

(b) council acting as a whole;

(c) the “head” of the municipal corporation for purposes of the Act, whether it is the head of council, an individual councillor, a committee of council, or council as a whole;

(d) a member of a municipal council who is executing the duties of an officer of the municipality. (This would be an unusual situation applying only to the smaller municipalities.)

Access by municipal councillors to personal information should be restricted to disclosure of information which is necessary and proper to the performance of the councillor’s duties as an officer of the municipality.

5. Definition of Collect

Define “collect” for the purposes of Part II of the Act.

The IPC proposes that for personal information to be collected, the institution would have to retain recorded information in an organized manner. This means that only records, which are reasonably retrievable by the institution, have been collected within the meaning of the Act. Information, which is received, but not retained beyond the time necessary for a decision to be made not to retain it, should not be considered to have been collected.

Further, information retained in an organized fashion should be considered to have been collected, regardless of whether it was unsolicited or solicited by the institution and regardless of the manner of collection, whether direct or indirect.

6. Archival Records

The Act should be amended to provide that:

records not containing personal information that have been transferred to a government institution’s archives be made available to the public after a specified period of time after the creation of the record — that period should be limited to not more than 20 years to further the principle of open government;

records containing personal information that have been transferred to a government institution’s archives be made available to the public after a specified period of time after the creation of the record — that period should be sufficient so that disclosure would not invade an individual’s privacy (e.g., 100 years).

7. Unique Personal Identification Numbers

Amend the Act to prevent or restrict the assigning of unique identifying numbers.

8. Access for the Visually Impaired

The Act should be amended to provide for increased access by the visually impaired to both general records and their own personal information.

9. Purposes of the Act

Amend section 1 of the Act as follows:

1. The purposes of this Act are,

(a) to provide a right of access to information in the custody or under the control of institutions in accordance with the principles that, …

(iii) decisions on the disclosure of information should be reviewed independently of the institutions which have custody or control of the information;

(b) to protect the privacy of individuals with respect to personal information about themselves in the custody or under the control of institutions and to provide individuals with a right of access to that information.

10. Public Accountability

Amend section 1 of the Act to include a new provision: “to make public bodies more accountable to the public“.

11. Time Limit for Exception to Council Records Exemptions

Amend section 6(2)(c) of the Act as follows:

6.–(2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record if, …

(c) the record is more than fifteen years old.

12. Public Opinion Polls and Economic Forecasts

Section 7(2) of the Act should be amended to include specific references to public opinion polls and economic forecasts in the list of examples of information that would not be considered advice or recommendations for the purposes of section 7(1).

13. Shortening Time Limit for Advice or Recommendations Exemption

Amend section 7(3) of the Act as follows:

(3) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record if the record is more than fifteenyears old.

14. Routine Inspection Reports

Amend section 8(4), the exception to the law enforcement exemption, as follows:

8.–(4) Despite any exemption, a head shall disclose a record that is a report prepared in the course of routine inspection by an agency that is authorized to enforce and regulate compliance with a particular statute of Ontario.

15. Time Limit on Relations with Government Exemption

Amend section 9 of the Act to provide for a time period of 15 years after which records must be disclosed.

16. Consent to Disclosure of Third Party Information

Amend section 10(2) of the Act to state:

A head shall disclose a record described in subsection (1) if the person to whom the information relates consents to the disclosure.

17. Simplifying Personal Privacy Exemption

The “personal privacy” exemption of section 14 should be restructured to make it easier to understand and apply.

Section 14(1) should state simply that the head of an institution must refuse to disclose personal information to any person except the person to whom the information relates “if the disclosure would constitute an unjustified invasion of personal privacy.”

Section 14(4) should be revised to include the five circumstances set out in the current sections 14(1)(a) through (e).

18. Reduce the Number of Presumed Unjustified Invasions of Privacy in the Personal Information Exemption

The IPC recommends that section 14 be amended to reduce the categories of personal information, the disclosure of which is presumed to be an unjustified invasion of personal privacy.

19. Mailing Lists and Other Forms of Solicitation

Amend section 14(3) of the Act as follows:

14.–(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(i) consists of an individual’s name, address or telephone number and is to be used for mailing lists or solicitation by telephone or other means.

20. Location of Soon to be Published Information

Amend section 15 of the Act as follows:

15. A head may refuse to disclose a record if,

(a) the record or the information contained in the record has been published or is currently available to the public, and the head has informed the requester of the specific location of the record or the information contained in the record;

21. Notification of Requesters

Amend section 15 of the Act as follows:

15.–(1) A head may refuse to disclose a record if,

(b) the head believes on reasonable grounds that the record or the information contained in the record will be published by an institution within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it.

(2) Where a head refuses to disclose a record or the information contained in the record under clause (b) and subsequently learns that the record will not be published as scheduled, the head shall immediately give the person who made the request, written notice in accordance with section 19.

Amend the section to prohibit institutions from applying 15(b) to a record more than once.

22. Public Interest Override

Amend section 16 of the Act to state:

An exemption from disclosure of a record under sections 6, 7, 8, 9, 10, 11, 12, 13, 14, and 38 does not apply when disclosure is clearly in the public interest.

23. Consistent Reference to Requesters

Amend section 17(2) of the Act as follows:

17.–(2) If the request does not sufficiently describe the record sought, the institution shall inform the person seeking accessof the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

24. Transfer of Requests

Where another institution has a greater interest in a record, a transfer of a request should be required rather than left to the head’s discretion. Section 18(3) should be amended to read “shall” instead of “may,” as follows:

(3) If an institution receives a request for access to a record and the head considers that another institution has a greater interest in the record, the head shall transfer the request and, if necessary, the record to the other institution, within fifteen days after the request is received, in which case the head transferring the request shall give written notice of the transfer to the person who made the request.

25. Notice of Refusal

Amend section 22 of the Act as follows:

22.–(1) Notice of refusal to give access to a record or a part under section 19 shall set out, …

(b) where there is such a record,

(i) a description of the record,

(ii) the specific provision of this Act under which access is refused,

(iii) the reason the provision applies to the record,

(iv) the name and position of the person responsible for making the decision, and

(v) that the person who made the request may appeal to the Commissioner for a review of the decision.

(3) A head who refuses to disclose a record or part under subsection 21(7) shall state in the notice given under subsection 21(7),

(a) a description of the record or part thereof;

(b) the specific provision of this Act under which access is refused;

(c) the reason the provision named in clause (b) applies to the record;

(d) the name and office of the person responsible for making the decision to refuse access; and

(e) that the person who made the request may appeal to the Commissioner for a review of the decision.

26. Access Request Time Limits

Amend section 22 of the Act by adding the following provision:

22.–(4) A head who fails to give the notice required under section 19 or subsection 21(7) concerning a record shall be deemed to have given notice of refusal to give access to the record on the last day of the period during which notice should have been given.

(5) Where a head fails to give the notice required under section 19 or subsection 21(7) concerning a record, the Commissioner may, on appeal, require the head to waive payment of all or any part of an amount required to be paid by the person who made the request for access to the record.

27. Access to Records in Alternate Formats

Amend section 23 of the Act to provide an explicit obligation for an institution to, whenever possible, provide access in the form specified by the requester, unless it would be unreasonable to do so.

28. Application of Part II of the Act

Amend section 27 of the Act to require that records containing personal information only be designated as records available to the general pubic by statutory authority, not by policy.

29. Availability of Personal Information

Amend section 27 of the Act to narrow the scope of the provision by adding the words “by an institution“.

This Part does not apply to personal information maintained by an institution for the purpose of creating a record that is available to the general public.

30. Public Registers

Amend Part II of the Act to specify privacy protection provisions for public registers.

31. Notice of Collection

Amend section 29(2) of the Act as follows:

29.–(2) If personal information is collected on behalf of an institution, the head shall inform the individual to whom the information relates of,

(a) the specific legal authority for the collection;

32. Security of Personal Information

Amend section 30 the Act to add the following provision:

An institution shall ensure that personal information in its custody or under its control is protected by such security safeguards that are reasonable in the circumstances to prevent loss or unauthorized access, use, modification or disclosure.

33. Disposal of Personal Information

Amend section 30(4) of the Act as follows:

30.–(4) A head shall dispose of personal information in the custody or under the control of the institution in accordance with the regulations.

34. Use and Disclosure of Personal Information

Amend sections 31 and 32 of the Act as follows:

31. An institution shall not use personal information in its custody or under its control except,

(a) if the individual to whom the information relates has identified that information in particular and consented to its use;

32. An institution shall not disclose personal information in its custody or under its control except,

(b) if the individual to whom the information relates has identified that information in particular and consented to its disclosure.

35. Disclosure of Personal Information to Outside Contractors

Amend section 32 of the Act to include a provision stipulating that disclosure of personal information to persons providing services to government institutions is only permissible under terms and conditions similar to the conditions for research agreements set out in section 14(1)(e).

36. Disclosure of Personal Information in Accordance with Part I of the Act

Amend section 32(a) to make it clear that the exception to the prohibition against disclosure applies only in the context of a request for access to the personal information under Part I of the Act.

37. Consistent Purpose

Amend section 33 to delete the reference to directly collected information and provide that the purpose of a use or disclosure of personal information is a consistent purpose under sections 31(b) and 32(c) only if the purpose has a reasonable and direct connection to the original purpose.

38. Extending the Appeal Period

Amend section 39 of the Act as follows:

39.–(2) An appeal under subsection (1) shall be made within thirty days after notice was given of the decision appealed from by filing with the Commissioner written notice of appeal.

(2a) The Commissioner may extend the 30 day time period referred to in subsection (2), where special circumstances exist.

39. Notification of Affected Persons

Amend section 39(3) of the Act as follows:

39.–(3) Upon receipt of a notice of appeal, the Commissioner shall inform the head of the institution concerned and may inform any other affected person of the notice of appeal.

40. Examination of Original Records

Amend section 41 of the Act as follows:

41.–(4) In an inquiry, the Commissioner may require to be produced to the Commissioner and may examine any record that is in the custody or under the control of an institution, despite Parts I and II of this Act or any other Act or privilege, and may enter and inspect any premises occupied by an institution for the purposes of the investigation.

(6) Despite subsection (4), a head may require that the examination of a record by the Commissioner be of the original at its site where it would not be reasonably practicable to reproduce the record or a part thereof by reason of its length or nature.

41. Enforcement of Orders

Amend Part IV of the Act so that an order may be filed by the Commissioner or a party in a court of competent jurisdiction, and thereafter the order shall be deemed to be an order of the court for the purposes of enforcement.

If parties may file the IPC’s orders, there should also be a provision whereby a party filing an order must give notice of the filing to the Commissioner within 10 days of filing.

42. Calculations of Fees

Amend section 45(1) of the Act as follows:

45.–(1) If no provision is made for a charge or fee under any other Act, a head shall require the person who makes a request for access to a record to pay costs no greater than the following:

(a) a search charge for every hour of manual search required in excess of two hours to locate the record;

(c) computer and other costs incurred in locating, retrieving, processing and copying the record; and

Amend section 45 of the Act to require institutions to demonstrate to the requester all costs associated with a request.

43. Appealing Fee Waiver Decisions

Amend section 45(5) of the Act as follows:

45.–(5) A person who is required to pay a fee under subsection (1) may appeal to the Commissioner for a review of the amount of the fee or the head’s decision not to waive the fee.

44. Notice of the Right to Appeal Fee Waiver Decisions

Amend section 45 to require institutions to provide requesters with a notice of the right to appeal a refused fee waiver.

45. Commissioner’s Powers

Amend section 46 of the Act as follows:

46. The Commissioner may

(ia) conduct a review of the access procedures of an institution or a review of records of personal information in the custody or under the control of an institution for the purpose of ascertaining whether an institution is complying with the requirements of this Act.

(iia) investigate an act or practice of an institution that may breach a privacy principle of this Act.

46a.–(1) For the purposes of the performance of the Commissioner’s function under subsection 46(ia) or subsection 46(iia) of the Act, an employee of the Commissioner, authorized by the Commissioner for the purposes of this section may, at any reasonable time of the day, after notifying the head of the institution of his or her purpose, enter the premises occupied by the institution and inspect any records that are kept at those premises and any systems and procedures that are in place at those premises and that are relevant to the performance of the function.

(2) The head shall provide the authorized person with all reasonable facilities and assistance for the effective exercise of his or her function under subsection (1).

46. Practices in Contravention of the Act

Amend section 46(b) of the Act as follows:

46. The Commissioner may,

(b) after hearing the head, order an institution to,

(i) change or cease a collection, use, retention, disclosure, or disposal practice, and

(ii) destroy collections of personal information,

that contravene this Act….

47. Commenting on Access and Privacy Implications

Amend section 46(a) of the Act to authorize the Commissioner to offer comment on both the access and privacy protection implications of programs of institutions. The Standing Committee may want to consider British Columbia’s Freedom of Information and Protection of Privacy Act, 1992 as a model for outlining the powers of the Commissioner.

48. Record Linkages

Amend section 46 to provide the Commissioner with the authority to comment on the implications for privacy of using or disclosing personal information for record linkages. The IPC prefers the term “record linkages” to “computer matching” because it is more general, incorporating all techniques that can be used for linking personal information records. For example, the linking of one or more personal information records through their availability on a local area network may not be considered to be “computer matching” as it is typically defined. However, this type of record linkage practice has serious implications for privacy and should be subject to review by the Commissioner under the Act.

49. Private Sector Distribution of Government Records

Amend Part IV of the Act to prohibit institutions from giving private sector vendors exclusive distribution rights to government data if such an arrangement impairs the right of the public to access such information.

50. Pro-active Consideration of Access and Privacy Implications

Amend the Act as follows:

Amend section 47 by inserting a new subclause (c) as follows:

47. The Lieutenant Governor in Council may make regulations,

(c) respecting the standards for privacy protection and access to records maintained electronically.

[The present sections 47(c) through (l) would become sections 47(d) through (m).]

Introduce the following regulation regarding access to government-held information:

When records maintained electronically include items of information that would be available under the Act, an institution in designing its information retrieval methods, whenever practicable and reasonable, shall do so in a manner that permits the retrieval and severance of available items in order to foster maximum public access.

Introduce a regulation that requires institutions to conduct a privacy impact assessment, as defined in the regulation, prior to the introduction of any computer information systems.

51. Routine Disclosure/Active Dissemination

Amend section 50 of the Act to include the following provision:

The head of a public body shall prescribe categories of general records that are in the custody or under the control of the public body and are available to the public, on demand, without a request for access under this Act. This list should be published in an index.

In addition, the Act should be amended to explicitly require the list of general classes or types of records (municipal counterpart to the Directory of Records) to identify documents that could be made available routinely, without having to make a formal request under the freedom of information and protection of privacy legislation.

52. Privative Clause/Charter Issues

Amend Part IV of the Act to include a privative clause that states that the Commissioner has exclusive jurisdiction to exercise the powers conferred on him/her by the Act and to determine all questions of fact or law which arise in any matter before him/her. Further, the privative clause should state that every decision or other action of the Commissioner under the Act is final and binding for all purposes.

53. Legislative Review

Amend section 55 of the Act to require the Standing Committee on the Legislative Assembly to conduct a comprehensive review of both the Act and the provincial Act three years from the completion of this current review.

Make the consequential amendment to the provincial Act.