The Freedom of Information Act

S.M. 1985-86, c. 6

The Freedom of Information Act

(Assented to July 11, 1985)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions.

1

In this Act

"applicant" means a person who applies for access to a record under this Act;

"application" means an application for access to a record under this Act; "Cabinet" means the Executive Council appointed under The Executive Government Organization Act, and includes a committee of the Executive Council;

"complainant" means a person who files a complaint with the Ombudsman;

"complaint" means a complaint filed with, or initiated by, the Ombudsman under this Act;

"court" means the Court of Queen's Bench;

"Crown agency" means

(i) any board, commission, association, or other body, whether incorporated or unincorporated, all the members of which, or of the board of management or board of directors of which, are appointed by an Act of the Legislature or by order of the Lieutenant Governor in Council, or

(ii) any corporation the election of the board of directors of which is controlled by the Crown, directly or indirectly, through ownership of the shares of the capital stock thereof by the Crown or by a board, commission, association, or other body which is a Crown agency within the meaning of this definition, but does not include the Provincial Auditor, Chief Electoral Officer or Ombudsman;

"department" means a department or branch of the Executive Government of Manitoba, and includes a Crown agency;

"designated minister" means the minister charged by the Lieutenant Governor in Council with the administration of this Act;

"exempt information" means information which falls within an exemption;

"exemption" means a class or category of information to which the head of a department is required or authorized to refuse access under sections 38 to 49;

"head" or "head of a department" means

(i) in the case of an unincorporated Crown agency, the minister charged with the administration of the Act under which the agency is established,

(ii) in the case of an incorporated Crown agency, the chief executive officer of the agency, and

(iii) in all other cases, the minister charged with the administration of the department;

"investigation" means the investigation by the Ombudsman of a complaint;

"minister" means a member of the Cabinet;

"Ombudsman" means the Ombudsman appointed under The Ombudsman Act, and includes any person employed by or otherwise acting under the authority of the Ombudsman;

"organization" includes a trade union or other unincorporated association;

"public officer" includes any person in the public service of the Government of Manitoba or any other government

(i) who is authorized to do, or enforce the doing of, any act or thing or to exercise any power, or

(ii) upon whom any duty is imposed, by or under any public Act;

"record" means any kind of recorded information, regardless of physical form or characteristics, and without restricting the generality of the foregoing includes

(i) any correspondence, memorandum, file, register, index, book, plan, map, drawing, diagram, photograph, film, painting, pictorial or graphic work, microform, sound recording, video tape, and machine-readable record,

(ii) any manual, handbook or other guideline used by the officers or employees of a department to interpret an enactment or to administer a departmental program or activity which affects the public,

(iii) where the form of a record is such that the record cannot be understood without explanation, a transcript of the explanation of the record,

(iv) a copy of a record, and

(v) a part of a record;

"third party" in respect of an application, means any person or organization other than the applicant or a department.

Meaning of access.

2(1)

A person who is given access to a record under this Act has, subject to section 7, the right

(a) to examine the record; or

(b) to obtain a copy of the record.

Exercise of access right.

2(2)

The head of the department which gives access to a record under this Act shall decide whether access is given in accordance with clause (1) (a) or clause (1) (b), but where the condition of the record so permits, the head shall give the applicant an opportunity both to examine the record and to obtain a copy of it.

Records stored by electronic means.

2(3)

Where a department receives an application for access to a microform, film, sound recording, machine-readable record or other record of information stored by electronic means, the head of the department shall be presumed to have given access to the record under this Act where the head

(a) permits the applicant to examine a transcript of the record; or

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

(c) in the case of a record produced for visual or aural reception, permits the applicant to view or hear the record or provides the applicant with a copy of it.

Right of access.

3

Subject to this Act, every person has, upon application, a right of access to any record in the custody or under the control of a department, including any record which discloses information about the applicant.

Contents of application.

4

Every application shall be made in prescribed form to the department which the applicant believes has custody or control of the record, and shall provide sufficient detail to enable an experienced officer or employee of the department to identify and locate the record.

Notice of right to file complaint.

5

The prescribed form for applications shall contain notification that the applicant has the right to file a complaint with the Ombudsman in the event the department fails to respond to the application in a manner authorized by this Act within 30 days.

Notice regarding access.

6(1)

Subject to sections 9 and 11, the head of a department which receives an application shall, within 30 days after the department receives the application,

(a) send written notice to the applicant as to whether or not the head agrees or refuses to give the applicant access to the record; and

(b) if access is to be given, give the applicant access to the record.

Contents of refusal.

6(2)

Where the head refuses to give the applicant access to the record, the notice referred to in clause (1) (a) shall state the right of the applicant to file a complaint with the Ombudsman about the refusal to give access, and the notice shall further state

(a) in the case of a record which the department claims does not exist or cannot be located, that the record does not exist or cannot be located;

(b) in the case of a record which does exist and can be located, the specific provision of this Act upon which the refusal to give access is based.

Fees.

7

An applicant who is given access to a record shall, prior to examining the record or obtaining a copy thereof, pay to the department which controls the record such fees as may be prescribed by regulation.

Failure to respond within 30 days.

8

Where the head of a department does not respond to an application in a manner authorized by this Act within 30 days after the department receives the application, the head shall, for purposes of this Act, be presumed to have refused to give the applicant access to the record.

Forwarding application.

9(1)

Where a department receives an application for access to a record which the department does not have in its custody or under its control, the head of the department shall make all necessary inquiries in order to determine whether any other department has custody or control of the record, and where the head determines that another department has custody or control of the record, the head shall

(a) forward the application to the other department; and

(b) send written notice to the applicant that the application has been forwarded to the other department.

Transfer of application.

9(2)

Where the head of a department which receives an application reasonably believes that another department has a greater interest in the record referred to in the application, the head may transfer the application to the other department, and, upon making a transfer, the head shall send written notice of the transfer to the applicant.

Meaning of greater interest.

9(3)

For purposes of subsection (2), a department has a greater interest in a record if

(a) the record was originally prepared in or for the department; or

(b) the department was the first department to obtain the record.

Effect on time limits.

10

A department to which an application is forwarded or transferred under section 9 shall respond to the application in a manner authorized by this Act as if the department had originally received the application, and for purposes of the time limits set out in this Act, the department shall be presumed to have received the application on the same day as the department which originally received the application.

Extension of time limits.

11(1)

The head of a department which receives an application may extend the 30 day limit set out in subsection 6(1) for up to 30 further days if, in order to process the application, the department must

(a) search for, or examine, such a large number of records that meeting the 30 day limit would unreasonably interfere with the operations of the department; or

(b) consult with another office of the department, or with another department, in circumstances such that the consultations cannot reasonably be completed within 30 days.

Notice of extension.

11(2)

A head who extends the 30 day limit in accordance with subsection (1) shall, within 30 days after the department receives the application, send written notice to the applicant of

(a) the extension;

(b) the right of the applicant to file a complaint with the Ombudsman about the extension; and

(c) the right of the applicant to file a complaint with the Ombudsman if, forthwith on the expiry of the extension, the head does not respond to the applicant in a manner authorized by subsection (3).

Access or refusal.

11(3)

Forthwith on the expiry of an extension under this section, the head shall send written notice to the applicant as to whether or not the head agrees or refuses to give the applicant access to the record, and shall, as the case may be,

(a) give the applicant access to the record; or

(b) state in the notice details of the matters referred to in subsection 6(2), including the right of the applicant to file a complaint with the Ombudsman about the refusal to give access.

Failure to respond.

11(4)

Where on the expiry of an extension under this section the head does not respond to the applicant in a manner authorized by subsection (3), the head shall be presumed to have refused to give the applicant access to the record.

Severability.

12(1)

Notwithstanding any other provision of this Act, where a department receives an application for access to a record which contains exempt information, the head of the department shall give access to all the information in the record which is not exempt and which can reasonably be severed from the exempt information.

Explanation or interpretation of record.

12(2)

Where the head of a department gives access to any record under this Act, the head may, without altering the record, supply the applicant with such additional information as the head believes will be necessary to explain or interpret the record.

Information filed by applicant.

13(1)

An applicant given access to a record which discloses information about himself or herself is entitled to submit to the department which has custody or control of the record

(a) a written objection respecting any error or omission of fact which the applicant alleges is contained in the record; and

(b) a written objection to, or explanation or interpretation of, any opinion which has been expressed by a third party about the applicant and which is contained in the record.

Information becomes part of record.

13(2)

As of the date of its submission, any objection, explanation or interpretation submitted under subsection (1) becomes part of the record and shall not be destroyed, altered or removed therefrom.

Correction of factual error.

13(3)

Where the head of the department which has custody or control of a record referred to in subsection (1) is satisfied that the record contains an error or omission of fact, the head shall cause the record to be corrected.

Complaint by applicant.

14

An applicant who

(a) is refused access to a record; or

(b) receives a notice of extension under subsection 11(2);

may, in person or through counsel, file a complaint in respect thereof with the Ombudsman.

Duties of Ombudsman.

15(1)

In addition to any other powers, duties and functions which may be conferred or imposed on the Ombudsman under this Act, the Ombudsman shall receive and investigate every complaint

(a) by an applicant about

(i) the refusal by the head of a department to give the applicant access to a record, or

(ii) an extension under section 11 of the 30 day limit for responding to the application; and

(b) by any person about the adequacy or availability of the Access Guide required to be published under this Act.

Complaint by Ombudsman.

15(2)

Where the Ombudsman is satisfied that there are reasonable grounds to investigate any matter referred to in subsection (1), the Ombudsman may initiate a complaint about the matter, and subject to subsection 30(4) the provisions of this Act apply with necessary modifications to a complaint initiated by the Ombudsman.

Complaints in prescribed form.

15(3)

Every complaint shall be in prescribed form.

Powers of investigation.

16(1)

Upon receiving or initiating a complaint, the Ombudsman shall forthwith investigate the complaint and for this purpose the Ombudsman has, subject to this Act, all the powers of a commissioner appointed under Part V of The Manitoba Evidence Act; but sections 87 and 88 of The Manitoba Evidence Act do not apply to any investigation conducted by the Ombudsman under this Act.

Delegation of powers.

16(2)

The Ombudsman may delegate to any person the authority to investigate a complaint, and any person so authorized may exercise the powers, and shall perform the duties and functions, assigned to the Ombudsman under this Act; but the Ombudsman shall not delegate to any other person the duty referred to in section 55.

Right of entry.

16(3)

Notwithstanding any other Act of the Legislature or any privilege under the law of evidence, the Ombudsman has, for the purpose of investigating a complaint, the right

(a) to enter any office of a department and examine any record in the custody of the department; and

(b) to converse in private with any officer or employee of a department.

Reasons for refusal.

17(1)

Where a complaint relates to a presumed refusal of access under section 8 or subsection 11(4), the Ombudsman shall, immediately upon beginning the investigation, request the head of the department involved in the complaint to give the applicant written notice of the reasons for the refusal to give access.

Contents of notice.

17(2)

Forthwith upon receiving the request from the Ombudsman under subsection (1), the head shall send to the applicant a written notice stating (a) in the case of a record which the department claims does not exist or cannot be located, that the record does not exist or cannot be located;

(b) in the case of a record which does exist and can be located, the specific provision of this Act upon which the refusal to give access is based.

Withholding information from Ombudsman.

18

No person shall

(a) withhold from the Ombudsman any record required by the Ombudsman for the purpose of an investigation; or

(b) refuse to furnish any information required by the Ombudsman for the purpose of an investigation.

Investigations in private.

19

The Ombudsman shall conduct every investigation in private.

Right to make representations.

20

In the course of an investigation, the Ombudsman shall give to the complainant and to the head of the department, if any, involved in the complaint a reasonable opportunity to make representations respecting the complaint.

Secrecy.

21(1)

The Ombudsman shall maintain secrecy in respect of all matters which come to the knowledge of the Ombudsman in the course of any investigation.

Disclosure in certain situations.

21(2)

Notwithstanding subsection (1), the Ombudsman may disclose

(a) in the course of an investigation, any matter which the Ombudsman considers necessary to disclose in order to facilitate the investigation;

(b) in a report prepared under this Act, any matter which the Ombudsman considers necessary to disclose in order to establish grounds for the findings and recommendations in the report; and

(c) in the course of a prosecution for an offence under this Act, any matter required for purposes of the prosecution.

Due regard for exemptions.

21(3)

When making a disclosure under subsection (2), the Ombudsman shall have due regard for the exemptions in this Act and shall take every reasonable precaution in order to avoid disclosure of any exempt information.

Defence under other Acts.

22

No person is guilty of an offence against any other Act of the Legislature by reason of complying with any request or requirement by the Ombudsman to furnish information or produce a record for the purpose of an investigation.

Restrictions on evidence.

23

Except in a prosecution for an offence under this Act,

(a) no statement made in the course of an investigation by the Ombudsman is admissible against any person in a court or in any other proceeding;

(b) no report made by the Ombudsman under subsection 25(1) or 27(1), and no notification given by the Ombudsman under subsection 29(2), is admissible in a court or in any other proceeding; and

(c) the Ombudsman shall not be called to give evidence in a court or in any other proceeding concerning any matter which comes to the knowledge of the Ombudsman in the course of any investigation.

Report re Access Guide.

24

Where a complaint relates to the adequacy or availability of the Access Guide required to be published under this Act, the Ombudsman shall, upon completing the investigation, send to the complainant and to the designated minister a report containing the findings of the investigation and the recommendations, if any, which the Ombudsman considers appropriate in respect of the complaint.

Report re access complaint.

25(1)

Where a complaint relates to

(a) the refusal by the head of a department to give an applicant access to a record; or

(b) an extension under section 11 of the 30 day limit for responding to an application;

the Ombudsman shall, upon completing the investigation, send to the applicant and to the head a report containing the findings of the investigation and the recommendations, if any, which the Ombudsman considers appropriate in respect of the complaint.

Notification re appeal right.

25(2)

Where the complaint relates to the refusal by the head of a department to give an applicant access to a record and where the Ombudsman finds that the complaint is not justified, the Ombudsman shall state in the report sent to the applicant under subsection (1)

(a) the right of the applicant to appeal to the court for access to the record; and

(b) the time limit under subsection 30(1) for filing an appeal.

Response by head.

26

Where the report of the Ombudsman under subsection 25(1)

contains any recommendations in respect of the complaint, the head of the department shall, within 14 days of receiving the report, send to the Ombudsman a written response indicating

(a) any action which the head has taken, or proposes to take, to implement the recommendations contained in the report; or

(b) reasons why the head refuses to take action to implement the recommendations contained in the report.

Report indicating departmental response.

27(1)

Upon receiving the response of the head, the Ombudsman shall send to the applicant a report indicating the nature of the response.

Where access refused.

27(2)

Where the report of the Ombudsman under subsection 25(1)

recommends that the head give the applicant access to a record, and where the response of the head indicates that the head refuses to give the applicant access to the record, the Ombudsman shall state in the report sent to the applicant under subsection (1)

(a) the opinion of the Ombudsman as to whether or not the response of the head is justified by the provisions of this Act;

(b) the right of the applicant to appeal to the court for access to the record; and

(c) the time limit under subsection 30(1) for filing an appeal.

Decision to allow access.

28

Where in the response under section 26, or at any other time after the filing of a complaint, the head of the department involved in the complaint indicates that the applicant will be given access to a record referred to in the complaint, the head shall, within 10 days, give the applicant access to the record.

Informal resolution of complaint.

29(1)

Notwithstanding the procedures prescribed in sections 24 to 27, the Ombudsman may, in the course of or upon completing an investigation, undertake such other procedures as the Ombudsman deems appropriate for the purpose of resolving the complaint informally to the satisfaction of the parties thereto and in a manner consistent with the spirit of this Act.

Notification of appeal right.

29(2)

Where the Ombudsman attempts but is unable to resolve in accordance with subsection (1) a complaint which relates to the refusal by the head of a department to give an applicant access to a record, the Ombudsman shall in writing notify the applicant of

(a) the right of the applicant to appeal to the court for access to the record; and

(b) the time limit under subsection 30(1) for filing an appeal.

Appeal by applicant.

30(1)

An applicant who is refused access to a record and who has filed a complaint in respect thereof with the Ombudsman may appeal the refusal of access to the court by filing an originating notice of motion within 30 days of receiving the report of the Ombudsman under subsection 25(1) or subsection 27(1), or the notification referred to in subsection 29(2), as the case may be.

Extension of time for filing.

30(2)

Prior to, or after, the expiry of the 30 day period referred to in subsection (1), and where special circumstances warrant, the court may extend the time for filing the appeal.

Head is respondent.

30(3)

The head of the department involved in the complaint is the respondent in an appeal under this section.

Ombudsman not to be party.

30(4)

The Ombudsman shall not be a party to an appeal under this section, and the Ombudsman shall not appeal any determination or decision made in respect of a complaint initiated by the Ombudsman under subsection 15(2).

Summary disposition.

31

The court may receive evidence by affidavit and may decide the appeal in a summary manner.

Production of records.

32

Notwithstanding any other Act of the Legislature or any privilege under the law of evidence, the court may, for purposes of disposing of an appeal under this Act, order production of any record in the custody or under the control of a department for examination by the court.

Procedures to avoid disclosure.

33

In disposing of an appeal under this Act, the court shall take every reasonable precaution, including, where appropriate, receiving representations ex parte and conducting hearings in camera, in order to avoid disclosure of any exempt information.

Burden of proof on department.

34

In any appeal under this Act, the burden of proof is on the head of the department to establish that the applicant has no right of access to the record under this Act.

Powers of court.

35(1)

Upon completion of the appeal hearing, the court may, subject to this section,

(a) order the head of the department to give the applicant access to the record, or refuse to make the order; or

(b) make such other order as the court deems appropriate.

Where record within exemption.

35(2)

Where the court finds that the record in question falls within an exemption, the court shall not order the head to give the applicant access to the record, regardless of whether the exemption in question requires or merely authorizes the head to refuse to give the applicant access to the record.

Costs in certain cases.

35(3)

Where the court is of the opinion that the appeal has raised an important new principle concerning the operation of this Act, the court shall order that costs be awarded to the applicant in any event of the cause.

No further appeal.

36

The decision of the court under section 35 is final and binding and there is no appeal therefrom.

Severability.

37

Notwithstanding any other provision of this Act, where the court finds that a record contains exempt information, the court shall order the head of the department to give the applicant access to all the information in the record which is not exempt and which can reasonably be severed from the exempt information.

Cabinet confidences.

38(1)

Subject to subsection (2), the head of a department shall refuse to give access to any record which discloses a confidence of the Cabinet, including but not restricted to a record which discloses

(a) an agenda prepared for a Cabinet meeting; or

(b) policy analysis or similar briefing material prepared for consideration by the Cabinet; or

(c) a proposal or recommendation prepared, or reviewed and approved, by a minister for presentation to the Cabinet; or

(d) a communication or discussion between ministers on a matter relating to the making of a government decision or the formulation of government policy.

Right of access preserved.

38(2)

Subject to the other exemptions in this Act, the head of a department shall give access to a record which discloses a confidence of the Cabinet where

(a) the record is more than 30 years old; or

(b) the Cabinet for which, or in respect of which, the record has been prepared consents to access being given.

Policy opinions, advice or recommendations.

39(1)

Subject to subsection (4), the head of a department may refuse to give access to any record which discloses

(a) an opinion, advice or a recommendation submitted by an officer or employee of a department, or a member of the staff of a minister, to a department or to a minister for consideration in

(i) the formulation of a policy, or

(ii) the making of a decision, or

(iii) the development of a negotiating position of or by the department or the government; or

(b) a plan relating to the administration of a department, including a plan relating to the management of personnel, which has not yet been implemented; or

(c) the contents of any draft enactment.

Limitation on exemption.

39(2)

Clauses (1)(a) and (b) do not apply to

(a) an environmental impact statement or a similar statement prepared for a department which is responsible for monitoring environmental quality; or

(b) a report of a test carried out on a product for the purpose of testing government equipment or preparing a consumer test report; or

(c) the results of scientific or technical research undertaken in connection with the formulation of a policy proposal; or

(d) an instruction or guideline issued to the officers or employees of a department, or a substantive rule or statement of policy which has been adopted by a department, for the purpose of interpreting an enactment or administering a departmental program or activity which affects the public; or

(e) an account of, or a statement of the reasons for, a decision which is made in the exercise of a discretionary power or an adjudicative function and which affects the rights of the applicant; or

(f) a report prepared by a consultant who was not, at the time the report was prepared, an officer or employee of a department or a member of the staff of a minister.

Meaning of "report".

39(3)

The term "report" in clause (2) (f) includes an evaluation of any departmental program of a non-commercial nature, but does not include an appraisal of the performance of any specific officer or employee of a department who is or was involved in administering a program.

Right of access preserved.

39(4)

Subject to the other exemptions in this Act, the head of a department shall give access to a record described in subsection (1) where the record is more than 30 years old.

Law enforcement and legal proceedings.

40(1)

The head of a department may refuse to give access to any record the disclosure of which could reasonably be expected

(a) to be injurious either to the enforcement of an enactment or to the conduct of an investigation under an enactment; or

(b) to facilitate the commission of an offence or to threaten the security of a correctional institution or other building, a computer or communications system, or any other property or system; or

(c) to violate solicitor-client privilege; or

(d) to be injurious to the conduct of existing or anticipated legal proceedings.

Limitation on exemption.

40(2)

Subsection (1) does not apply to a record which

(a) discloses the use of investigative or enforcement techniques or procedures which are contrary to law; or

(b) reveals that the scope of any law enforcement investigation has exceeded the limits of the law; or

(c) provides a general outline of the structure or programs of a law enforcement agency; or

(d) reports, by means of statistical analysis or otherwise, on the degree of success achieved in a law enforcement program.

Protection of personal privacy.

41(1)

Subject to subsections (3) and (5), the head of a department shall refuse to give access to any record the disclosure of which would constitute an unreasonable invasion of the privacy of a third party, including but not restricted to a record which discloses

(a) personal details of the educational, medical, criminal, employment or family history of the third party; or

(b) personal details of a taxation matter, financial transaction or other pecuniary matter in which the third party is or has been involved; or

(c) the identity of a third party who has supplied information in confidence to a department for any purpose related to the administration or enforcement of an enactment.

Limitation on exemption.

41(2)

Subsection (1) does not apply to a record which

(a) discloses the classification, salary range and benefits, or employment responsibilities of a third party who is or was an officer or employee of a department or a member of the staff of a minister; or

(b) discloses financial or other details of a contract for personal services between a third party and a department; or

(c) discloses details of a licence or permit, or a similar discretionary financial benefit, conferred on a third party by a department or minister, but only where

(i) the third party represents 1% or more of all persons and organizations in Manitoba receiving a similar benefit, and

(ii) the value of the benefit to the third party represents 1% or more of the total value of similar benefits provided to other persons and organizations in Manitoba.

Right of access preserved.

41(3)

Subject to the other exemptions in this Act, the head of a department shall give access to a record described in subsection (1) where

(a) the third party consents to access being given; or

(b) the record is publicly available; or

(c) the third party is an individual who has been dead for more than 10 years.

Access with consent of third party.

41(4)

Where an applicant is entitled to be given access to a record described in subsection (1) by virtue of the consent of the third party, the head of the department which has custody or control of the record may

(a) prior to giving access to the applicant, require a written acknowledgement or other evidence of informed consent from the third party; and

(b) comply with the requirement to give access by giving access directly to the third party rather than the applicant.

Access for research purposes.

41(5)

Subject to the other exemptions in this Act, the head of a department may give any person or organization access to a record described in subsection (1) for bona fide research or statistical purposes if

(a) the head is satisfied that the research or statistical purpose cannot reasonably be achieved unless the record is provided in a form which identifies the third party; and

(b) the head obtains from the person or organization a written undertaking not to disclose the contents of the record in any form which could reasonably be expected to identify the third party.

Commercial information belonging to third party.

42(1)

Subject to this section, the head of a department shall refuse to give access to any record

(a) which discloses a trade secret of a third party; or

(b) which discloses financial, commercial, scientific or technical information supplied to a department by a third party on a confidential basis and treated consistently as confidential information by the third party; or

(c) the disclosure of which could reasonably be expected to

(i) result in significant financial loss or gain to a third party, or

(ii) prejudice the competitive position of a third party, or

(iii) interfere with contractual or other negotiations of a third party.

Right of access preserved.

42(2)

Subject to the other exemptions in this Act, the head of a department shall give access to a record described in subsection (1) where

(a) the record discloses the final results of a product or environmental test conducted by or on behalf of a department, unless the test was conducted for a fee paid by the third party; or

(b) the third party consents to access being given; or

(c) the record is publicly available.

Access with consent of third party.

42(3)

Where an applicant is entitled to be given access to a record described in subsection (1) by virtue of the consent of the third party, the head of the department which has custody or control of the record may

(a) prior to giving access to the applicant, require a written acknowledgement or other evidence of informed consent from the third party; and

(b) comply with the requirement to give access by giving access directly to the third party rather than the applicant.

Disclosure in public interest.

42(4)

Subject to subsections (5) to (7) and the other exemptions in this Act, the head of a department may give access to a record described in subsection (1) where the private interest of the third party in non-disclosure is clearly outweighed by the public interest in disclosure for purposes of

(a) health, safety or environmental protection;

(b) improved competition; or

(c) government regulation of undesirable trade practices.

Notification to third party and applicant.

42(5)

Prior to giving access to a record under subsection (4), the head shall

(a) notify the third party of the decision to give access and give the third party a reasonable opportunity to make representations respecting the decision; and

(b) notify the applicant that the head is acting in accordance with clause (a).

Reference to court.

42(6)

Where the third party objects to the giving of access, the applicant may, within 30 days of receiving the notification referred to in clause (5)(b) or within such further time as the court may allow, apply to the court by originating notice of motion for an order authorizing the head to give the applicant access to the record; and sections 31 to 33 apply with necessary modifications to the hearing of the matter.

Court decides issue.

42(7)

Where the court, upon hearing an application under subsection

(6), decides that the public interest in disclosure referred to in subsection (4) clearly outweighs the private interest of the third party in non-disclosure, the court shall issue an order authorizing the head to give the applicant access to the record; and the decision of the court under this subsection is final and binding and there is no appeal therefrom.

Economic interests of Manitoba.

43

The head of a department may refuse to give access to any record

(a) which discloses a trade secret of a department or the government; or

(b) which discloses innovative scientific or technical research done by an officer or employee of a department; or

(c) the disclosure of which could reasonably be expected to prejudice the competitive position of a department or the government, or to interfere with contractual or other negotiations of a department or the government; or

(d) the disclosure of which could reasonably be expected to injure significantly the financial interests of a department or the government, or to result in undue gain to any person or organization, including but not restricted to a record which discloses

(i) a contemplated change in taxes or any other source of revenue, or

(ii) a contemplated change in government borrowing, or

(iii) a contemplated change in the conditions of operation of any financial institution, stock exchange, or commodities exchange, or of any self-regulating association recognized by The Manitoba Securities Commission under any provincial enactment, or

(iv) a contemplated sale or purchase of securities, bonds or foreign or Canadian currency, or

(v) a contemplated sale, purchase, lease or expropriation of land or other property, or

(vi) a contemplated designation of an archaeological, historical, heritage or similar site.

Federal-provincial relations.

44

The head of a department may refuse to give access to any record the disclosure of which could reasonably be expected to be injurious to the conduct by the government of federal-provincial relations.

Information obtained in confidence.

45(1)

Subject to subsection (2), the head of a department shall refuse to give access to any record obtained in confidence from

(a) the government of Canada or a department thereof; or

(b) the government of any other province or a department thereof; or

(c) a municipal or regional government, a school division or school district, or any other local authority established by or in accordance with an enactment of any province, or a department of any such local authority.

Right of access preserved.

45(2)

Subject to the other exemptions in this Act, the head of a department shall give access to a record described in subsection (1) where the government, local authority or department from which the record was obtained

(a) consents to the giving of access; or

(b) makes the information public.

Testing or auditing procedures.

46

The head of a department may refuse to give access to any record which discloses testing or auditing procedures or techniques, or details of specific tests to be given or audits to be conducted, if the disclosure could reasonably be expected to prejudice the use or results of particular tests or audits.

Material to be made public.

47

The head of a department may refuse to give access to any record which the head believes on reasonable grounds will be published or otherwise made available to the public by the government, a department or a minister within 90 days.

Third party reports.

48(1)

Subject to subsection (2), the head of a department may refuse to give access to any record which was made prior to the coming into force of this section and which discloses a report prepared, or an opinion expressed, about the applicant by a third party, including a third party who is or was an officer or employee of a department or a member of the staff of a minister.

Right of access preserved.

48(2)

Subject to the other exemptions in this Act, the head of a department shall give access to a record described in subsection (1) where the third party consents to access being given.

Excerpted summary.

48(3)

Where the head refuses to give access to a record under subsection (1), the head may provide the applicant with an excerpted summary of the report or opinion of the third party.

Preparation of summary.

48(4)

Where an excerpted summary is provided under subsection (3), it shall be prepared by the third party, if the third party is available and willing to do so, but otherwise it shall be prepared as directed by the head.

Physical or serious psychological harm.

49

The head of a department may refuse to give access to any record where there are reasonable grounds to believe that disclosure of the record might result in

(a) physical or serious psychological harm to the applicant or, in the case of a record which discloses information about a third party, to the third party; or

(b) physical harm to any other person.

Access Guide.

50

The designated minister shall cause to be published an Access Guide containing

(a) instructions on exercising the right of access conferred by this Act, including

(i) a summary of the procedures for submitting applications, filing complaints and making appeals,

(ii) a completed sample copy of the form prescribed for applications, and

(iii) a statement of the fees payable for access to records;

(b) a list indicating the personnel involved in the administration of this Act and appropriate departmental facilities, including

(i) the address and telephone number of each departmental office which receives applications,

(ii) the name, address and telephone number of the access officer or officers in each department, and

(iii) the physical facilities available in each department for examining records and obtaining copies of records;

(c) a description of the organizational structure of each department, including a reference to any internal indexes used by the department to manage its records;

(d) a description of the records in the custody or under the control of each department, including

(i) the title of every group or class of records,

(ii) a functional description of every group or class of records, and

(iii) details concerning the retention, disposition and, where applicable, destruction of a group or class of records as contained in the appropriate Schedule prepared and approved under The Legislative Library Act;

(e) a subject index of terms describing the functions of departments and referring by number to the appropriate records relating to those functions; and

(f) a copy of this Act and the regulations.

Availability of Access Guide.

51

The designated minister shall cause a copy of the Access Guide to be made available

(a) in every departmental office which receives applications;

(b) in every public reading area of a departmental office; and

(c) in such other departmental offices, public libraries, and municipal offices as the designated minister deems appropriate.

Updating of Access Guide.

52

The designated minister shall cause to be published and distributed, at intervals of 2 years or less, supplements or replacements in an appropriate format for the purpose of keeping the Access Guide up to date.

Other duties and functions.

53

The designated minister

(a) shall, in order to facilitate access to records, cause to be kept under review the administration of this Act and the regulations within the departments; and

(b) may cause to be prepared and distributed to departments guidelines concerning the operation of this Act and the regulations.

Annual report of designated minister.

54(1)

The designated minister shall report annually to the Speaker of the assembly on the administration of this Act and the regulations within each department during the year, and the Speaker shall cause the report to be laid before the assembly forthwith if the assembly is in session and if the assembly is not in session, within 15 days of the beginning of the next ensuing session.

Contents of report.

54(2)

The annual report of the designated minister shall provide details of

(a) the number of applications received by each department during the year;

(b) the number of times during the year that the head of each department refused to give access to a record, and the specific provisions of this Act upon which the refusals to give access were based; and

(c) the fees charged and collected by each department for access to records during the year.

Annual report of Ombudsman.

55

The Ombudsman shall report annually to the Speaker of the assembly on the exercise and performance of the powers, duties and functions of the Ombudsman under this Act, and the Speaker shall cause the report to be laid before the assembly forthwith if the assembly is in session and if the assembly is not in session, within 15 days of the beginning of the next ensuing session.

Review by committee.

56

Within 3 years after the coming into force of this section, such committee of the assembly as the assembly may designate or establish for the purpose shall undertake a comprehensive review of the operation of this Act and shall, within 1 year after the review is undertaken or within such further time as the assembly may allow, submit to the assembly a report on the operation of this Act, including any amendments to the Act which the committee recommends.

Delegation to access officers.

57(1)

The head of a department may by written authorization designate one or more officers or employees of the department to be access officers for the purpose of exercising or performing such powers, duties and functions of the head under this Act as the head may specify in the authorization.

Effect of delegation.

57(2)

Any action or decision of an access officer acting within the scope of the authorization referred to in subsection (1) shall, for purposes of this Act, be conclusively deemed to be the action or decision of the head.

Proceedings against Ombudsman prohibited.

58

No proceeding lies against the Ombudsman, or any person employed by or acting under the authority of the Ombudsman, for anything done, reported or said in good faith in the exercise or performance, or intended exercise or performance, of the powers, duties and functions of the Ombudsman under this Act.

Proceedings against government prohibited.

59

No proceeding lies against the head of a department, any access officer or other officer or employee of a department, or the government or any department, for

(a) the giving of access in good faith to any record under this Act; or

(b) any consequences which flow from such access; or

(c) the failure to give any notice required under this Act, if reasonable care was taken to give the required notice.

Obstruction.

60

Every person who without lawful justification

(a) wilfully obstructs, hinders, or resists any other person in the exercise or performance of that other person's powers, duties or functions under this Act; or

(b) refuses or wilfully fails to comply with any lawful request or other requirement of any other person under this Act; or

(c) wilfully makes any false statement to, or wilfully misleads or attempts to mislead, any other person in the exercise or performance of that other person's powers, duties or functions under this Act;

is guilty of an offence punishable by summary conviction.

Act inapplicable to certain records.

61

This Act does not apply to

(a) any record which is published or available for purchase by the public; or

(b) any record contained in a library or museum solely for purposes of public reference or exhibition; or

(c) a private record placed in the Provincial Archives, the Legislative Library or the Manitoba Museum of Man and Nature by or on behalf of any person or organization other than a department.

Regulations.

62

For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make regulations ancillary thereto and not inconsistent therewith; and every regulation made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations not inconsistent with this Act

(a) prescribing the forms to be used for applications and complaints;

(b) prescribing the fees payable for access to records;

(c) specifying the procedures to be followed in taking and processing applications within individual departments;

(d) specifying the manner or place in which access to records shall be given within individual departments; and

(e) prescribing such other procedures as may be necessary for the proper administration of this Act.

Act binding on Crown.

63

This Act is binding on Her Majesty in right of Manitoba.

Other access rights preserved.

64(1)

Subject to subsection (4), nothing in this Act or the regulations, including the exemption in section 48, shall be interpreted to restrict or extinguish

(a) any custom or practice; or

(b) any right or privilege, whether created by another Act of the Legislature, a regulation thereunder, or otherwise;

whereby any person, including a public officer acting in the course or scope of duty, is authorized to gain access to any record, or any group or class of records, in the custody or under the control of a department.

When access right arises.

64(2)

Subsection (1) applies regardless of whether the custom, practice, right or privilege arose before, or arises after, the coming into force of this section.

Access procedures under other Acts.

64(3)

Without restricting the generality of subsection (1), nothing in this Act or the regulations affects any form, fee or procedure established by or under any other Act of the Legislature, or any regulation thereunder, for gaining access to any record referred to therein.

Act prevails over Schedules.

64(4)

Where there is a conflict between this Act and any access provision or access restriction contained in a Schedule prepared and approved under The Legislative Library Act, this Act prevails.

Confidentiality provisions in other enactments.

65

Every provision in any other Act of the Legislature or any regulation thereunder which restricts or prohibits access by any person to any record in the custody or under the control of a department is subject to this Act, and applies only to the extent that it falls within the exemptions in this Act.

Other enactments prevail.

66

Without restricting the generality of subsection 64(1), and notwithstanding section 65, this Act does not apply to the right of access and the procedures for gaining access to records, and the restrictions on access to records, contained in the following provisions:

(a) The Child Welfare Act and any regulations thereunder, and any enactment which may be substituted therefor.

(b) The Workers Compensation Act, subsections 52.2(1) and (2) and section 52.3.

(c) The Vital Statistics Act, sections 31 to 33.

(d) The Statistics Act, section 9.

(e) The Securities Act.

Transfer, storage or destruction.

67

Nothing in this Act shall be interpreted to prohibit the transfer, storage or destruction of any record in accordance with any other Act of the Legislature or any regulation thereunder.

Reference in Continuing Consolidation.

68

This Act may be referred to as chapter F175 of the Continuing Consolidation of the Statutes of Manitoba.

Commencement of Act.

69

This Act comes into force on a day fixed by proclamation.