Access to Information
Requests
for Access to Information
Duty
to Assist the Applicant
The
Application form
Processing
the Request
Severing
Responding
to a
Request
Giving
Access
Access
to Electronic
Records
Creating
a Record in the Form Requested
Time
Limit for Responding and Extending
the
Time
Limit
Exceptions
to
Disclosure
Mandatory
Exceptions to
Disclosure
Privacy
of a Third
Party
Business
Interests of Third
Parties
Cabinet
Confidences
Information
Provided in Confidence
by
Another Government to a
Local
Public
Body
Discretionary
Exceptions to disclosure
Information Affecting
Intergovernmental
Relations
Local
Public Body
Confidences
Advice
to a Public
Body
Disclosure
Harmful to Individual Health
or
Safety or Public
Safety
Law
Enforcement
Matters
Security
of
Property
Solicitor-Client
Privilege
Economic and Other Interests of
a
Public
Body
Testing
Procedures, Tests and
Audits
Confidential
Evaluations
Preservation
of Heritage Resources
and
Life
Forms
Information
that Is or Will Be
Available
to
the Public
Records
Available Without an Application
Third
Party Intervention Rights
Fees
Fee
Estimates
Fee
Waivers
Protection of Privacy
What
is Personal
Information?
Collection
of Personal
Information
Maintaining
Accurate
Personal
Information
Right
to Correct Personal
Information
Retention
of Personal Information
Protection
of Personal
Information
Use
of Personal Information
Disclosure
of Personal
Information
Consistent
Purpose
Privacy
Assessment Review
Process
Disclosure
of Personal Information
for
Research
Purposes
Role of the Ombudsman
General
Powers and Duties
of
the
Ombudsman
Powers
of the Ombudsman
when
Conducting
An
Investigation
Complaints
to the
Ombudsman
Investigation
of
Complaints
Ombudsman's
Report About a Complaint
Appeals
to Court
Introduction
The Freedom of Information and Protection
of Privacy Act of Manitoba, commonly known as FIPPA, was passed in June
1997. It was proclaimed in effect for Manitoba government departments
and agencies on 4 May 1998 and for the City of Winnipeg on 31 August
1998. FIPPA was extended to local governments, school divisions,
universities, community colleges, regional health authorities and
hospitals on April 3, 2000.
This Guide is intended to help local
public bodies understand FIPPA and their responsibilities under this new
legislation. It is a combined procedures manual and overview of the
statute and regulation. The FIPPA Resource Manual, a
very detailed internal manual for Manitoba government departments and
agencies, may be of assistance to larger local public bodies. In
complex matters, local public bodies should refer to
FIPPA and the
Access and Privacy Regulation. For reference, the
relevant section numbers are noted at the beginning of each component of
the Guide.
Notes
on Using this Guide
In
most respects, FIPPA imposes the same obligations and standards on all
public bodies. There are, however, some requirements specific to local
public bodies or to Manitoba government departments and agencies. This
Guide uses the term “public body”, except when discussing a section of
the Act which pertains only to local or provincial public bodies. The
term “local public body” is also used for when discussing procedures to
be followed by local public bodies.
Where
the term “head” of the public body’ is used in this Guide, it should be
understood to include the Access and Privacy Officer who has been
officially delegated to act for the head.
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Fundamental
Principles
Access and privacy legislation is based on two fundamental human
rights increasingly recognized in contemporary democracies:
- the right to access information held by
governments and other public bodies, including information about
oneself, subject to certain specific exceptions; and ·
- the right of privacy for one's own personal information held by
public bodies.
To ensure that the legislation is applied fairly, access and privacy
legislation usually includes a process for independent review.
The right of access to information is based on the principle that
governments and other public institutions are accountable to
citizens for their policies and actions. Another premise underlying
this type of legislation is the desirability of having better
informed members of society. The exceptions to access recognize that
certain types of decision making and transactions must be conducted
in confidence. The practice of severance, which involves removing
information that falls within an exception from a copy of the
document to be released, provides a means of disclosing as much
information as possible while maintaining necessary
confidentiality.
The right to privacy for personal information is based on the
principle that people have the right to know about and control their own
personal information and on principles of "fair information
practices" governing the collection, correction, management, use
and disclosure of personal information. Protection of privacy is a
growing concern among Canadians and people in other countries, because
so much personal information is now stored in electronic systems and is
easily manipulated, matched and traded.
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Emergence of Access and Privacy Legislation
Access and privacy legislation has developed in industrialized
nations during the last 30 years as a result of the maturing of
democratic governments, growing recognition of individual rights and,
most recently, rapid development of telecommunications and information
technology.
In Canada, the federal government adopted the Privacy Act and
the Access to Information Act in 1982. Together, these two statutes
provided personal information protection and rights of access to
government information in the federal sphere. By the mid-1990s, most
Canadian provinces had enacted combined access and privacy
statutes.
Manitoba's Freedom of Information Act, proclaimed in 1988, provided
rights of access to provincial government information, subject to
certain exemptions, with the Office of the Provincial Ombudsman and the
Court of Queen's Bench serving as the review and final decision-making
mechanisms. It provided limited protection for personal information by
treating third party personal information as an exception to access.
However, it lacked a full scheme of protection for all personal
information collected, stored, used and disclosed by the government.
Moreover, the access and privacy rights in that Act were limited to
records held by the Manitoba Government and Crown agencies and did not
apply to other public bodies in the province.
FIPPA was drafted after public consultation and review of similar
legislation in other jurisdictions. During the consultation process, the
Minister of Culture, Heritage and Citizenship stated that FIPPA ensures
"a common approach and standard for the province, local governments
and other public bodies so that Manitobans receive consistent protection
and services."
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Purposes and Structure of FIPPA
The purposes of the Act are:
- to give any person a right of access to records in the custody or
under the control of public bodies, subject to the exceptions set
out in the Act;
- to give individuals a right of access to records containing
personal information about themselves in the custody or under the
control of public bodies, subject to the exceptions set out in the
Act;
- to give individuals a right to request corrections to records
containing personal information about themselves held by public
bodies;
- to control the manner in which public bodies collect
personal information from individuals and to protect individuals
against unauthorized use or disclosure of personal information by
public bodies; and
- to provide for an independent review of the decisions of public
bodies under FIPPA.
FIPPA is structured in the following seven parts:
- Part 1 Definitions, Purpose, and Scope
- Part 2 Access to Information
- Part 3 Protection of Privacy
- Part 4 General Powers and Duties of the Ombudsman
- Part 5 Investigation of Complaints by the Ombudsman and Appeals to
Court
- Part 6 General Provisions
- Part 7 Review of FIPPA, etc.
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Public Bodies Under FIPPA
FIPPA applies to Manitoba Government departments, all boards,
commissions and agencies whose governing boards are wholly appointed by
statute or by the Manitoba Government, and other agencies designated in
the Regulation, such as the mandated Child and Family Service Agencies.
Each department or agency is a separate public body. FIPPA also covers
the following, which are called "local public bodies":
- the City of Winnipeg;
- municipalities and local governments;
- planning districts;
- conservation districts;
- community councils under The Northern Affairs Act;
- public school divisions and districts;
- community colleges;
- the University of Manitoba, University of Winnipeg and Brandon
University;
- regional health authorities;
- hospitals designated under The Health Services Insurance Act;
and
- boards of health and social services districts established under
The District Health and Social Services Act.
The
Manitoba Government may bring other bodies under FIPPA by regulation.
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Key
Definitions in FIPPA
Section 1 of FIPPA includes a number of important definitions. Some of
the more significant definitions are outlined in this section of the
Guide. Others are discussed in specific sections; for example, the
definition "record" is discussed under "Records That Fall
Under FIPPA".
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Personal
Information In FIPPA
Personal
information is defined as "recorded information about an
identifiable individual …." To be personal information, the
information must be:
(i) "recorded" - personal information is
limited to information which is recorded or retrievable in some physical
form. It does not include oral comments which have not been recorded.
(ii) about an "individual" - an "individual" is a
natural person, a human being. Information about corporations,
businesses, groups or organizations is not personal information.
(iii)
about an "identifiable" individual - if an individual is named
in a record or it is possible to determine his or her identity from the
contents of the record, the record is about an "identifiable"
individual.
The definition of "personal information" in FIPPA
lists examples of personal information, but the list is not exhaustive.
The examples given include an individual's name, home address and home
telephone, facsimile or e-mail number, information about an individual's
age, sex, sexual orientation, marital status, family status, ancestry,
race, colour, nationality, national origin, ethnic origin, religion or
creed, religious belief, religious association or activity, personal
health information, blood type, fingerprints, hereditary
characteristics, political beliefs, political association or activity,
education, employment, educational history, employment history, source
of income, financial circumstances, financial activities or history,
criminal history and identifying numbers, symbols or other particular
assigned to an individual.
Personal information also includes an
individual's opinions (except if the opinions are about someone else)
and any opinions expressed about the individual by someone else.
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Personal Health Information
Personal health information is defined as recorded information about
an identifiable individual relating to that person’s health or health
care history, the provision of health care to the individual, or payment
for health care provided to the individual. It includes an individual’s
Personal Health Information Number (PHIN) and any identifying
information about the individual that is collected in the course of, and
is incidental to, providing health care or payment for health care.
All public bodies which fall under FIPPA are also covered by PHIA. In
addition, PHIA applies to some private health care professionals,
facilities and agencies.
An individual requesting access to his or her own personal health
information must do so under
The Personal Health Information Act (PHIA),
not under FIPPA.
Requests for access to personal health information about someone else
must be dealt with under FIPPA (unless the request is made by a person
authorized to act on behalf of the person the information is about under
section 60 of PHIA).
PHIA also sets out rules respecting collection, protection, use and
disclosure of personal health information by trustees, including public
bodies. The protection of privacy section of FIPPA does not apply to
personal health information.
For more information about PHIA, see "The Personal Health Information
Act: A Brief Summary for Public Bodies" published by Manitoba Health.
For the statute, click here.
It may be purchased from:
Statutory Publications,
200 Vaughan Street,
Winnipeg, MB R3C 1T5
Telephone 945 3101,
FAX: 945 7172.
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Third Party
For the purposes of a request for access under FIPPA, a “third party” is
a person, group or organization, who is not the applicant requesting
access or a public body.
Public bodies hold large quantities of information about individuals,
groups, corporations and non profit organizations which, if disclosed to
others, might result in harm to them. Sections 33 and 34 of FIPPA
contain third party notice and intervention provisions to protect the
personal information or business interests of third parties.
The phrase “third party” is particularly important in the following
provisions:
- Subsection 12(2) Refusal to confirm or deny existence of record
- Clauses 15(1)(c) and (d) Extending the time limit for responding
- Section 17 Privacy of a third party
- Section 18 Business interests of a third party
- Subsection 27(2) Third party’s solicitor-client privilege
- Sections 33 and 34 Third party intervention
- Subsection 59(2) Complaint to Ombudsman by third party about access
- Subsection 67(1) Appeal to court by third party about access.
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Law
Enforcement
“Law enforcement” is
defined in FIPPA to mean “any action for the purpose of enforcing an
enactment…. ” The term “enactment” means an Act or regulation and an
“Act” is a statute passed by the Legislative Assembly of a province or
by the Parliament of Canada.
Thus, law enforcement
means activities undertaken by a public body to enforce compliance with
standards, duties and responsibilities set out in a statute or
regulation. The definition lists examples of law enforcement, but this
is not meant to be a complete list. The examples given are:
- policing;
- investigations or inspections that lead or could lead to a penalty or
sanction being imposed, or that are otherwise conducted for the purpose
of enforcing an enactment; and
- proceedings that lead or could lead to a penalty or sanction being
imposed, or that are otherwise conducted for the purpose of enforcing an
enactment.
For example, a prosecution under the Criminal Code (Canada), a hearing
before the Clean Environment Commission or a hearing before a Human
Rights Arbitrator are all law enforcement proceedings.
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RECORDS THAT FALL UNDER FIPPA
[SECTION 4; Definition of “record” in SECTION 1]
In FIPPA, a record is defined very broadly to mean information recorded
“in any form”. In addition to written and printed records, it includes
photographs, maps, plans and audio/visual recordings. Information stored
and retrieved electronically is also a record under FIPPA.
Examples of records are minutes and agenda, letters, memoranda, reports,
notes, and financial transaction records. Copies of documents, drafts
and other working materials are also records under FIPPA.
FIPPA applies to all records "in the custody or under the control of" a
public body, except for certain specified records described in the next
section. In most cases, “custody” for the purposes of FIPPA means having
physical possession of a record. The term “control” usually means the
power or authority to make decisions respecting the use or disclosure of
a record. Records stored in an off site facility by the public body, or
transferred to an archives for permanent preservation, are still under
the control of the public body.
FIPPA applies to information received by the public body from other
governments, organizations or individuals, as well as to records
generated by the staff and officials of the public body in the course of
their duties.
FIPPA applies to records created or received before FIPPA came into
effect, as well as to records created or received after it came into
effect.
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RECORDS THAT DO NOT
FALL UNDER FIPPA
[CLAUSES 4(a) TO 4(k); STATUTES WHICH PROVIDE FIPPA DOES NOT APPLY]
FIPPA does not apply to the following records, even if these records are
in the custody or under the control of a public body:
- constituency records of elected officials of local public bodies;
- teaching materials or research information of employees of school
divisions or districts, community colleges, or universities;
- a question that is to be used on an examination or test, now or in the
future;
- information in court records, records of a judge or magistrate, and
judicial administration records;
- a note or draft decision of a person acting in a judicial or quasi
judicial capacity;
- records relating to a prosecution or an inquest under The Fatalities
Inquiry Act if all proceedings have not been completed.
In addition, FIPPA does not apply to certain records related to the
provincial legislature or government, such as records of a Member of the
Legislative Assembly, personal or constituency records of a Minister,
records of an Officer of the Legislative Assembly, and records of a
credit union held by the Credit Union Deposit Guarantee Corporation.
Also excluded are records specifically dealt with under the following
statutes: The Adoption Act, The Child and Family Services Act, The
Mental Health Act, The Personal
Health Information Act, The Statistics Act, The Vital Statistics Act,
The Workers Compensation Act, and the Young Offenders Act (Canada).
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RECORDS NORMALLY
AVAILABLE TO THE PUBLIC
[CLAUSE 3(a)]
Public bodies have always provided public access to certain information
and records in their custody. These traditional procedures may continue
as long as they do not violate protection of personal information. For
example, minutes of most municipal council and school board meetings
should continue to be available.
FIPPA does not affect any fees that may be charged for access to these
records which are normally available to the public.
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OTHER PROCEDURES NOT AFFECTED BY FIPPA
[CLAUSES 3(b), (c) and (d)]
The transfer, storage and destruction of records by a public body are
not affected by FIPPA, provided that these actions are undertaken in
accordance with a statute or
regulation of Manitoba or Canada, or a by-law or resolution of a
government agency or a local public body.
FIPPA does not limit the information otherwise available by law to a
party to legal
proceedings. Nor does it affect the power of a court or tribunal to
compel the production of documents or to require a witness to testify.
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RELATIONSHIP OF
FIPPA TO OTHER LEGISLATION
[SECTION 5]
Commencing May 4, 2001, if any provision in FIPPA is inconsistent or in
conflict with a provision of another Manitoba statute or regulation, the
provision in FIPPA will prevail unless the other statute or regulation
expressly provides that it applies despite FIPPA.
The following statutes “expressly provide” that they prevail over FIPPA:
- The Personal Health
Information Act
- The Adoption Act (section 99)
- The Child and Family Services Act (section 86.1)
- The Mental Health Act
- The Securities Act (section 154.1)
- The Statistics Act (subsection 9(4))
- The Vital Statistics Act (section 49.1)
- The Workers Compensation Act (section 116)
In addition, there are some federal statutes which affect records
keeping by public bodies, access to information and personal information
protection. Among the most important is the Young Offenders Act which
governs the retention and disclosure of records relating to young
offenders held by the courts, police, government departments, social
agencies, school divisions and other public bodies that deal with young
offenders. FIPPA does not apply to these records.
There are several statutes applicable to local public bodies, which
provide that the local public body must give access to certain
documents. For example, section 81.3 of The City of Winnipeg Act states
that the City Clerk, on the request of any person, must produce and
permit the examination of certain specified records (such as the
approved minutes of an open council meeting or an open committee
meeting, the latest tax roll, etc.).
Local public bodies should review any legislation which applies to them,
to determine whether it requires them to provide access to information.
FIPPA authorizes the head of a public body to disclose personal
information in accordance with an enactment of Manitoba or Canada that
authorizes or requires the disclosure.
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MANITOBA GOVERNMENT
RESPONSIBILITIES
The Minister Responsible for FIPPA is the Minister of Culture, Heritage
and Tourism. This minister oversees the central administration of FIPPA
and is responsible for the overall performance of public bodies in
responding to requests for access and protecting personal information.
The Responsible Minister is required to submit an annual report to the
Legislative Assembly.
Access and Privacy Services of the Provincial Archives of Manitoba
undertakes the central administration and coordination of FIPPA. It
organizes training courses for staff of public bodies, provides
procedural advice, distributes resource materials, compiles and
distributes the directories of records, maintains the FIPPA web site,
and handles other
matters required for effective administration of the legislation.
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DIRECTORIES OF
RECORDS
[SECTION 75]
Under FIPPA, directories of records are compiled to inform the public
about the mandates, functions and records of all public bodies,
including major holdings of personal information (called personal
information banks). Identification of the purpose for collecting the
personal information in these banks, the types of personal information
included, and any other uses or disclosures of this information, helps
people to understand how public bodies are managing the personal
information entrusted to them.
In most cases, the directories of records are compiled and edited by the
Access and Privacy Services. The City of Winnipeg and the universities
prepare their own directories. View the
directories of the
local public bodies here.
The directory for the Manitoba government is called the
Access and Privacy Directory.
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ADMINISTRATION OF FIPPA
BY LOCAL PUBLIC BODIES
[SECTIONS 80 and 81, REGULATION SECTION 2]
Responsibility for Complying with FIPPA - Head or Access and Privacy
Officer
Each local public body must designate, either by by-law or by
resolution, a person or group of persons as its head for the purposes of
FIPPA. The head is formally responsible for all decisions and actions
taken under FIPPA on behalf of the local public body. For accountability
purposes, it is recommended that the head be the elected head of the
local public body or, where there are no elected officials, the senior
appointed official. For example, it is suggested that municipalities
designate their mayor or reeve as head and that school divisions and
regional health authorities designate their respective chairperson.
Click here for a sample by-law or
resolution designating the head of a local public body.
In most public bodies, the head probably will want to delegate his or
her responsibilities to a senior staff member called the Access and
Privacy Officer. The delegation should be to a position, not to a
specific individual, and should be in writing. The Access and Privacy
Officer acts for the head in all matters under FIPPA. Click here for
a
sample delegation form.
When this Guide refers to the head of the public body, it should be
understood to include either the head or the Access and Privacy Officer.
The head of the local public body is responsible for the overall
management of access to
information and protection of privacy within the organization. This
individual will make the
final decisions on behalf of the local public body regarding release of
information under FIPPA. The head also is responsible for ensuring that
the local public body manages personal information in accordance with FIPPA. Should the Ombudsman have to conduct an investigation in response
to a complaint, that Office usually will deal with the head of the local
public body or the Access and Privacy Officer.
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Daily Administration
and Coordination – Access and Privacy Coordinator
Each local public body is required, by section 2 of the Access and
Privacy Regulation, to appoint an employee as its Access and Privacy
Coordinator. This official will be responsible for receiving
applications for access and for the daily administration of FIPPA. In
very small local public bodies, the Access and Privacy Officer also may
serve as the Coordinator.
The main duties of the Coordinator are as follows:
- assist applicants requesting access to records, and potential
applicants, by explaining FIPPA, helping them to draw up requests,
directing them to other sources of information, etc.;
- receive applications for access, locate the records requested or, in
larger public bodies, coordinate this work;
- receive requests for correction of personal information and forward
them to the appropriate area;
- ensure time limits and notification requirements are met;
- contact third parties to determine their position respecting a request
for access;
- prepare any necessary copies of requested records;
- estimate and collect any applicable fees;
- recommend how to respond to requests for access to the head of the
local public body;
- maintain documentation on how applications are handled by the local
public body, including what information was not disclosed to applicants
and the exceptions used;
- ensure that staff understand the requirements of FIPPA respecting
collection, use, protection and disclosure of personal information; and
- assist the head of the local public body during investigations by the
Ombudsman.
The Access and Privacy Coordinator also may be responsible for ensuring
that the records of the local public body are managed efficiently and in
accordance with legislative requirements and policies. Efficient records
management will help local public bodies to locate information requested
under FIPPA.
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Lists of Uses and
Disclosures of Personal Information
[Section 75(4)]
Each local public body is required to maintain an up-to-date list of the
uses and disclosures made of information in the personal information
banks and to make this list
available to the public.
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Annual Statistics
[Section 83]
To compile the Annual Report of the Minister Responsible for FIPPA,
Access and Privacy Services requires annual statistics on the use of
FIPPA from each local public body. The completed Annual Report should be
sent to Access and Privacy Services by January 31 of the new year. View
the Annual Report Form here.
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Protection from
Liability
[Section 84]
No action may be brought against a public body or its officials for
damages resulting from
- the disclosure or
failure to disclose, in good faith, a record or information under
FIPPA;
- any consequences of
that disclosure or failure to disclose; or
- the failure to give
a notice required by FIPPA if reasonable care is taken to give the
required notice.
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Offences and
Penalties
[Section 85]
It is an offence, subject to a maximum fine of $50,000 for any
person to willfully:
- disclose personal
information in contravention of FIPPA;
- mislead or obstruct
the Ombudsman; or
- destroy a record or
erase information in an attempt to evade a request for access to
records.
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