Guide for Local Public Bodies: Role of the Ombudsman

Contents

General Powers and Duties of the Ombudsman

[Section 49 and 58]

FIPPA provides for an independent review of the decisions of public bodies respecting:

  • requests for access to information under Part 2; and
  • protection of personal information under Part 3.

Parts 4 and 5 of FIPPA assign this independent review function to the Manitoba Ombudsman and set out that Office’s powers, duties, and the complaint process.

The Ombudsman is an Officer of the Legislative Assembly appointed under The Ombudsman Act and, as such, is independent of the Government of Manitoba. The Ombudsman investigates complaints relating to administrative acts, decisions or omissions by departments and agencies of the provincial and municipal governments under The Ombudsman Act, and reviews compliance with access to information and privacy rights under FIPPA and PHIA. The Ombudsman may delegate any duty or power under FIPPA to any person on his or her staff.

In addition to the Ombudsman’s powers and duties respecting investigation of complaints, the Ombudsman has various general powers under FIPPA including the following:

  • audit and monitor compliance with FIPPA and its regulations;
  • receive comments from the public about the administration of FIPPA;
  • comment on the access and privacy implications of proposed legislation and programs of public bodies;
  • make recommendations to the head of a public body or the Responsible Minister about the administration of FIPPA
  • bring to the attention of the head of a public body any failure to fulfil the duty to assist an applicant requesting access under Part 2;
  • conduct investigations and make recommendations respecting compliance with the requirements respecting security and destruction of records in any other statute or regulation, or in a by-law or other legal instrument by which a local public body acts;
  • comment on the privacy implications of using or disclosing personal information for records linkage purposes, and of using information technology in the collection, storage, use or transfer of personal information;
  • make recommendations respecting public body practices of collecting, using or disclosing information that contravene FIPPA; and
  • recommend destruction of a collection of personal information not collected in accordance with FIPPA.

The Ombudsman cannot order that a public body comply with FIPPA. Nevertheless, with extensive powers to conduct investigations and to bring public scrutiny to bear on access to information and privacy issues, the Ombudsman is a persuasive watchdog for the public’s rights to access information held by public bodies and to have personal information protected.

The role of the Ombudsman in relation to personal health information is similar under PHIA.

The Ombudsman submits an annual report to the Manitoba Legislature summarizing the investigations undertaken during the year and the responses of the public bodies, and discussing significant access and privacy issues that have arisen during the year. The Office may also issue special reports related to any matter within its mandate.

Powers of the Ombudsman when Conducting an Investigation

[SECTIONS 50 to 57]

In carrying out an investigation under FIPPA, the Ombudsman has all the powers and protections of a commissioner under Part V of The Manitoba Evidence Act including the power:

  • to summon witnesses by subpoena or summons;
  • to require witnesses to produce documents necessary to the investigation;
  • to examine witnesses under oath or affirmation;
  • to enter and inspect any building or property, if this will assist in the investigation;
  • to issue a warrant to have a witness brought before the Ombudsman where the witness has been summoned and refuses or neglects to appear;
  • to issue a warrant committing a witness to jail for not more than a month where the witness has been summoned to appear and refuses to answer questions without lawful excuse, and
  • to search all documents or records relating to persons or matters within the scope of the investigation in any public office existing under any Act of the Legislature, without fee or charge.

At the request of the Ombudsman, a public body must provide a record, or a copy of a record, to that Office within 14 days. If it is not practicable to make a copy of the requested record, the head may require the Ombudsman to examine the original record at its site.

The Ombudsman has the right to enter any office of a public body, to examine and make copies of any record in the custody of the public body and to meet in private with any officer or employee of a public body. All investigations of the Ombudsman's Office are conducted in private.

It is an offence, subject to a maximum fine of $50,000, to make a false statement to, mislead, or obstruct the Ombudsman.

In conducting its duties, the Office of the Ombudsman must not disclose any information that the head of a public body is authorized or required to refuse to disclose under FIPPA. The Office also must not reveal whether a record exists, if the head is authorized to refuse to confirm or deny the existence of the record.

The Ombudsman may only disclose:

  • information that is necessary to perform a duty or exercise a power of the Ombudsman under FIPPA,
  • information that is necessary to establish the grounds for findings and recommendations in a report under FIPPA, and
  • information in the course of a prosecution in the criminal courts for perjury in respect of sworn testimony, a prosecution for an offence under FIPPA, or in an appeal to the Manitoba Court of Queen’s Bench when the Ombudsman is a party to the appeal.

The Ombudsman may also disclose to the Minister of Justice and Attorney General for Manitoba information relating to the commission of an offence under FIPPA or any other statute or regulation of Manitoba or Canada, if the Ombudsman has reason to believe an offence has been committed.

Complaints to the Ombudsman

[Section 59 to 61]

A person who has requested access to a record under Part 2 of FIPPA may make a complaint to the Ombudsman about any decision, act, or failure to act by the head of a public body, related to that request. For example, an applicant may complain about a refusal to grant access to information, about an extension of the response time, or about the fees charged for search and preparation. Generally, complaints about access decisions must be made within 60 days of notification of the decision.

A third party, notified of a decision by the head of a public body to give access to a record containing information affecting the third party’s privacy or business interests, may make a complaint to the Ombudsman about the decision to give access within 21 days after notice of the decision.

A person who has requested correction of a record may make a complaint to the Ombudsman about a refusal by the head of the public body to correct the records, within 60 days of notice of the decision.

An individual who believes that his or her personal information has been collected, used or disclosed in violation of the privacy protection provisions in Part 3 of FIPPA may make a complaint to the Ombudsman. There is no time limit for making a complaint about the management of personal information by a public body. However, the Ombudsman may decide not to investigate the complaint if a long time has elapsed.

A relative of a deceased individual may make a complaint about the decision of a head not to disclose personal information about the deceased.

The Ombudsman may initiate a complaint respecting any matter if the Ombudsman believes there are reasonable grounds to investigate the matter under FIPPA.

Complaints must be made on the form prescribed by the Access and Privacy Regulation (see the 'Forms, Letters and Notices' Section of the Handbook).

Investigation of Complaints

[Sections 61 to 65]

The Ombudsman's Office must notify a public body as soon as practicable after receiving a complaint against it.

The Ombudsman may take any steps that he or she feels are appropriate to resolve a complaint to the satisfaction of the parties and in keeping with the purposes of FIPPA.

The complainant and the head of the public body are entitled to make representations to the Ombudsman, either directly or through an agent. This may be done orally or in writing, at the discretion of the Ombudsman.

Investigations will be completed within 90 days of receipt of the complaint, unless the time limit is extended by the Ombudsman.

Ombudsman's Report About a Complaint

[Section 66]

Upon completion of an investigation about a complaint, the Ombudsman is required to prepare a report containing the findings and any recommendations considered appropriate. A copy will be sent to the head of the public body concerned and to the complainant, and may be sent to any other person who has made representations to the Ombudsman about the complaint.

In reports about access to information, including third party complaints about decisions of public bodies to release information, the Ombudsman may support the complainant and recommend that the public body release some or more information. On the other hand, the Ombudsman may agree with the decision of the public body.

If the Ombudsman's report contains recommendations, the head of the public body must, within 15 days of receiving the report, send a written response to the Ombudsman indicating:

  • if the recommendations are accepted, what action has been taken or will be taken to implement them; or
  • the reasons why the head refuses to implement the recommendations.

If the head accepts the recommendations, the public body must comply with them within 15 days if the complaint related to access to a record, correction of a record or disclosure of personal information about a deceased individual to a relative, within 45 days in any other case, or within such longer period of time as the Ombudsman considers reasonable.

The Ombudsman is required to notify the complainant without delay of the head's response. In the case of a response that indicates a refusal to take action on recommendations involving a denial of access to a record, the Ombudsman must also inform the complainant that an appeal of the decision of the head may be made to the Manitoba Court of Queen’s Bench and of the time limit for the appeal. Similarly, if the complaint is by a third party who has been notified by the head of the public body of a decision to give access to information affecting the privacy or business interests of the third party, the Ombudsman must inform the complainant that he or she may appeal the head’s decision to the Court of Queen’s Bench and of the time limit for the appeal.

In addition, the Ombudsman must inform a complainant if the Ombudsman intends to appeal the decision of the head to the Court of Queen’s Bench under section 68 of FIPPA.



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