Alberta’s Information and Privacy Commissioner likes most of the proposed amendments to the Freedom of Information and Protection of Privacy Act (FOIP), but has serious concerns about one proposal.
Frank Work is pleased with amendments to the Act that make it clear that information can only be disclosed upon the order of a Canadian court. “We really like amendments to the Act which make it an offence to disclose information to a court with no jurisdiction in this Province, and we fully support higher penalties that are proposed for unlawful disclosure. These are the amendments I was hoping for when I released the ‘USA Outsourcing Report’, and are intended to protect Albertans from issues surrounding the USA Patriot Act, and from other legal issues in jurisdictions outside Canada. The change of the limitation period for prosecuting offences under the act from 6 months to 2 years is also good.”
The Commissioner, however, cannot support a proposal to exclude Briefing Books from application of the Act. “This has never been an issue for this Office in the past. This amendment could be a very significant exception to disclosure. We already have a section of the Act which quite clearly establishes the ability to withhold advice given by officials and this particular amendment is not necessary.”
Amendments to the Act were given first reading in the Legislature on March 7. Work is not concerned about other amendments to the Act. (Refer to attached background document).
List of amendments to Freedom of Information and Protection of Privacy Act
Amendments supported by the Commissioner
- Section 40 (1) (g) is amended to clarify that a public body is authorized to disclose personal information to comply with a subpoena, warrant or order issued by a court, person or body having jurisdiction in Alberta to compel the production of information or with a rule of court binding in Alberta that relates to the production of information.
- New offence and penalty provisions are added to section 92. It will be an offence for a person to willfully disclose personal information pursuant to a subpoena, warrant, order, or a rule of court to a court, person or body that has no jurisdiction to compel the production of information. A person that commits this offence will be liable to a fine of not less than $2,000 and not more than $10,000 in the case of an individual, and not less than $200,000 and not more than $500,000 in the case of any other person (e.g. a contractor to a public body). The Act currently allows for a fine of up to $10,000.
- Section 3 (d) is amended to clarify that the FOIP Act does not affect the power of a court or tribunal in Canada to compel the production of documents.
- A new section 4 (1) (j.1) is added to clarify that the Act does not apply to published works collected by a library of a public body, provided that the library has collected the works in accordance with a selection policy.
- Section 6 is amended to add a time-limited exclusion to the right of access under Part 1 of the Act. There will be no right of access to records relating to an audit by the Chief Internal Auditor (CIA) that are in the custody of the CIA. This exclusion will apply to records created by or provided to the office of the CIA for a period of 15 years. Part 2 of the Act will continue to apply to personal information in the records and the Auditor General will continue to have access to the records.
- Section 24 is amended to add a new exception that complements the proposed new exclusion in section 6 for the records of the Chief Internal Auditor (CIA). This mandatory exception will require a Public Body to refuse to disclose a record relating to an audit by the CIA that was created by the CIA or that would reveal information about such an audit. This exception will apply for a period of 15 years. The exception will not apply to records created by a person other than the CIA and that concern a matter under review by the CIA, but that do not reveal information about the audit.
- Section 55 is amended to permit a public body to ‘stop the clock’ on the processing of an access request or a request for correction when the head of the public body has asked the Information and Privacy Commissioner to disregard the request.
Amendments not supported by the Commissioner
- Section 6 is also amended to add a time-limited exclusion to the right of access to a Minister’s briefing books. This exclusion applies to briefings created solely for the purpose of either briefing a new Minister or briefing a Minister for a sitting of the Legislative Assembly. The exclusion, which applies for a period of 5 years, does not apply to information in a briefing book that was not created solely for one of these purposes, such as reports and statistics produced for the Department and included in the Minister’s briefing book.