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S.M. 2008, c. 40
Bill 31, 2nd Session, 39th Legislature
The Freedom of Information and Protection of Privacy Amendment Act
(Assented to October 9, 2008)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
Section 1 is amended
(a) by adding the following definitions:
"adjudicator" means the Information and Privacy Adjudicator appointed under section 58.1; (« arbitre »)
"complaint" includes a complaint initiated by the Ombudsman under subsection 59(5); (« plainte »)
"information manager" means a person or body that
(a) processes, stores or destroys personal information for a public body, or
(b) provides information management or information technology services to a public body; (« gestionnaire de l'information »)
(b) in the definition "educational body", by adding the following after clause (c.3):
(c.4) St. Paul's College,
(c.5) St. John's College,
(c) in the definition "employee", by striking out everything after "person" and substituting "who performs services for the public body under a contract or agency relationship with the public body;";
(d) in the definition "officer of the Legislative Assembly", by adding "the Information and Privacy Adjudicator appointed under this Act," after "Auditor General,"; and
Section 1 is amended by renumbering it as subsection 1(1) and adding the following as subsection 1(2):
Section 6 is renumbered as subsection 6(1) and the following is added as subsection 6(2):
Subsection 13(1) is replaced with the following:
The head of a public body may disregard a request for access if he or she is of the opinion that
(a) the request is incomprehensible, frivolous or vexatious;
(b) because of their repetitious or systematic nature, the requests would unreasonably interfere with the operations of the public body or amount to an abuse of the right to make those requests; or
Subsection 19(2) is replaced with the following:
Subsection (1) does not apply if
(a) the record is more than 20 years old; or
(b) consent to disclosure is given
(i) in the case of a record prepared for or in respect of the current government, by the Executive Council, and
(ii) in the case of a record prepared for or in respect of a previous government, by the President of the Executive Council of that government or, if he or she is absent or unable to act, by the next senior member of that government's Executive Council who is present and able to act.
The following is added after clause 20(1)(c):
The following is added after clause 21(1)(c):
Subsection 23(2) is amended
(a) in clause (a), by striking out "30 years" and substituting "20 years";
(b) in clause (c), by adding "service," before "program"; and
(c) by adding the following after clause (f):
Section 30 is renumbered as subsection 30(1) and the following is added:
Subsection 32(1) and the centred heading before it are replaced with the following:
INFORMATION THAT WILL BE AVAILABLE TO THE PUBLIC
Subsection 32(2) is amended by striking out "under clause (1)(b)" and substituting "under subsection (1)"
(a) in the part before clause (a); and
Subsection 42(3) is amended
(a) by striking out "and disclosure"; and
Clause 43(c) is replaced with the following:
The following is added after clause 44(1)(f):
(f.1) to an officer or employee of a public body, for the purpose of delivering a common or integrated service, program or activity, if the information is necessary to deliver the service, program or activity and the officer or employee to whom the information is disclosed needs the information to carry out his or her responsibilities;
The following is added after clause 44(1)(j):
(j.1) for the purpose of
(i) evaluating or monitoring a service, program or activity of the Government of Manitoba or the public body, or
The following is added after clause 44(1)(x):
(x.1) if the personal information is information of a type routinely disclosed in a business or professional context, and the disclosure
(i) is limited to the individual's name, position name or title, business address, telephone number, facsimile number and e-mail address, and
Clause 44(1)(aa) is replaced with the following:
Clause 44(1)(cc) is replaced with the following:
Subsection 44(1) is amended by striking out "or" at the end of clause (bb), adding "or" at the end of clause (cc) and adding the following after clause (cc):
(dd) if the public body is an educational institution and the disclosure is for the purpose of fundraising activities of the educational institution, but only if
(i) the disclosure is of information in the alumni records of the educational institution and is reasonably necessary for the fundraising activities, and
The following is added after subsection 44(1):
An agreement between an educational institution and another person to permit disclosure of personal information under this section must
(a) require that when individuals are first contacted for the purpose of soliciting funds and periodically afterwards, they are informed of their right to request that their personal information cease to be disclosed;
(b) allow individuals, on request, a right of access to personal information that is disclosed about them under clause (1)(dd); and
The following is added after section 44:
A public body may provide personal information to an information manager for the purpose of processing, storing or destroying it or providing the public body with information management or information technology services.
An information manager may use personal information provided to it under this section only for the purposes and activities mentioned in subsection (1), which must be purposes and activities that the public body itself may undertake.
A public body that wishes to provide personal information to an information manager under this section must enter into a written agreement with the information manager that provides for the protection of the personal information against such risks as unauthorized access, use, disclosure, destruction or alteration, in accordance with the regulations.
An information manager shall comply with
(a) the same requirements concerning the protection of personal information that the public body is required to comply with under this Act; and
(b) the duties imposed on the information manager under the agreement entered into under subsection (3).
Personal information that has been provided to an information manager under an agreement described in subsection (3) is deemed to be in the custody and control of the public body for the purposes of this Act.
Subsection 53(1) is amended by striking out "or" at the end of clause (b) and replacing clause (c) with the following:
(c) in a review conducted by the adjudicator under this Act when the Ombudsman is a party; or
The following is added after section 58:
INFORMATION AND PRIVACY ADJUDICATOR
On the recommendation of the Standing Committee of the Assembly on Legislative Affairs, the Lieutenant Governor in Council must appoint an Information and Privacy Adjudicator as an officer of the Assembly.
The adjudicator's role is to review — at the request of the Ombudsman under section 66.1 — a decision, act or failure to act of the head of a public body.
The Lieutenant Governor in Council may suspend or remove the adjudicator from office on a resolution of the Assembly carried by a vote of 2/3 of the members voting.
When the Assembly is not sitting, the Lieutenant Governor in Council may suspend the adjudicator for cause or incapacity, but the suspension ends no later than 30 sitting days after the suspension came into effect.
When the office of the adjudicator is vacant or the adjudicator has been suspended or is otherwise unable to act, the Lieutenant Governor in Council may appoint an acting adjudicator to hold office until another adjudicator is appointed.
On the adjudicator's recommendation, the Lieutenant Governor in Council may also appoint a deputy adjudicator.
Any employees necessary to enable the adjudicator to perform the duties of the office may be appointed in accordance with The Civil Service Act.
The adjudicator shall take every reasonable precaution, including receiving representations ex parte, conducting hearings in private and examining records in private, to avoid disclosure
(a) of any information the head of a public body is authorized or required to refuse to disclose under Part 2; or
(b) as to whether information exists, if the head of a public body is authorized to refuse to confirm or deny that the information exists under subsection 12(2).
A statement made or an answer given by a person during a review by the adjudicator is inadmissible in evidence in court or in any other proceeding, except
(a) in a prosecution for perjury in respect of sworn testimony;
(b) in a prosecution for an offence under this Act; or
(c) in an application for judicial review or an appeal from a decision with respect to that application.
Subsection (1) applies also in respect of evidence of the existence of proceedings conducted before the adjudicator.
Anything said, any information supplied, and any record produced by a person during a review by the adjudicator under this Act is privileged in the same manner as if it were said, supplied or produced in a proceeding in a court.
No proceedings lie against the adjudicator or deputy adjudicator, or against any person acting for or under the direction of either of them, for anything done, reported or said in good faith in the exercise or performance or the intended exercise or performance of a duty or power under this Act.
The adjudicator must make an annual report to the Speaker of the Assembly about the exercise of the adjudicator's responsibilities under this Act.
Subsection 66(5) is amended by replacing clauses (a) and (b) with the following:
(a) as to whether the Ombudsman intends to ask the adjudicator to review the head's decision under section 66.1; and
The following is added after subsection 66(6):
The following is added after section 66:
REQUEST FOR ADJUDICATOR'S REVIEW
The Ombudsman may ask the adjudicator to review a matter described in subsection (2) or (3) if he or she has given a report to the head of a public body under section 66 and
(a) the head's response indicates that the public body refuses to take action to implement any of the Ombudsman's recommendations;
(b) the head's response indicates an acceptance of the Ombudsman's recommendations, but action is not taken to implement them within the required time; or
(c) the head fails to respond as required by subsection 66(4).
The Ombudsman may ask the adjudicator to review
(a) any decision, act or failure to act by the head of a public body relating to a request for access to a record or for correction of personal information;
(b) any decision by the head of a public body to give access to a record in circumstances where a third party is notified of the decision under section 33.
If the Ombudsman considers that an individual's personal information has been collected, used or disclosed in contravention of Part 3 (Protection of Privacy), the Ombudsman may ask the adjudicator to review the matter.
The Ombudsman's request for review must be made
(a) within 15 days after the Ombudsman receives the head's response to the Ombudsman's report under subsection 66(4); or
(b) if the head does not respond, within 15 days after the deadline for a response has expired.
As soon as practicable after receiving a request from the Ombudsman, the adjudicator must notify the complainant, the head of the public body concerned and any other person who, in the adjudicator's opinion, is affected by it.
CONDUCT OF REVIEW BY ADJUDICATOR
On receiving a request from the Ombudsman, the adjudicator must conduct a review of the matter and decide all questions of fact and law arising in the course of the review.
The adjudicator may make rules of procedure for conducting a review under section 66.3.
The adjudicator may receive and accept any evidence and other information that he or she considers appropriate, whether on oath or by affidavit or otherwise, and whether or not it is admissible in a court of law.
A review may be conducted in private.
For the purpose of conducting a review, the adjudicator has the same powers and protections as the Ombudsman has under section 50 (Evidence Act powers and production of records).
The complainant, the head of the public body concerned, and any person given notice under section 66.2
(a) must be given an opportunity to make representations to the adjudicator during a review under section 66.3; and
(b) is entitled to be represented by counsel or an agent.
The adjudicator may decide
(a) whether representations are to be made orally or in writing; and
(b) whether a person is entitled to be present during representations made to the adjudicator by another person, or is entitled to have access to those representations or to comment on them.
The Ombudsman has a right to be a party in any review conducted by the adjudicator if the Ombudsman considers that the review raises an issue of public interest.
A review under section 66.3 must be completed within 90 days after the adjudicator receives the request from the Ombudsman, unless the adjudicator extends the period.
If the 90-day period is extended, the adjudicator must notify the complainant, the head of the public body concerned, the Ombudsman and any other person given notice under section 66.2, and he or she must also inform them of the date by which the review is expected to be completed.
BURDEN OF PROOF
In a review of a decision to refuse an applicant access to all or part of a record, it is up to the head of the public body to prove that the applicant has no right of access to the record or part.
As an exception to subsection (1), if the record or part or a record that the applicant is refused access to contains personal information about a third party, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy.
In a review of a decision to give an applicant access to all or part of a record that contains information about a third party,
(a) in the case of personal information, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy; and
(b) in any other case, it is up to the third party to prove that the applicant has no right of access to the record or part.
Upon completing a review under section 66.3, the adjudicator must dispose of the issues by making an order under this section.
If the review concerns a decision of the head of a public body to give access or refuse access to all or part of a record, the adjudicator may, by order,
(a) require the head to give the applicant access to all or part of the record, if the adjudicator determines that the head is not authorized or required to refuse access;
(b) confirm the decision of the head or require the head to reconsider it, if the adjudicator determines that the head is authorized to refuse access;
(c) confirm the decision of the head or require the head to refuse access to all or part of the record, if the adjudicator determines that the head is required to refuse access.
If the review concerns any other matter, the adjudicator may, by order,
(a) require that a duty imposed by this Act be performed;
(b) confirm or reduce the extension of a time limit under subsection 15(1);
(c) confirm or reduce a fee, or order a refund of a fee, in the appropriate circumstances;
(d) confirm a decision not to correct personal information, or specify how personal information is to be corrected;
(e) require a public body to cease or modify a specified practice of collecting, using or disclosing personal information in contravention of Part 3;
(f) require the head of a public body to destroy personal information collected in contravention of this Act.
If the adjudicator determines that the head is authorized or required to refuse access to a record or part of a record, the adjudicator must not order the head to disclose the record or part of it.
The adjudicator may specify terms or conditions in an order made under this section.
The adjudicator must give a copy of an order made under this section to each of the following:
(a) the complainant;
(b) the head of the public body concerned;
(c) the Ombudsman;
(d) any other person given notice under section 66.2;
(e) the responsible minister.
The adjudicator must make orders made under this section available to the public, and may do so by publishing them on a website on the Internet.
Subject to subsection (2), the head of the public body concerned must comply with an adjudicator's order
(a) within 30 days after being given a copy of the order; or
(b) within any longer period specified in the order;
unless an application for judicial review of the order is brought before that period ends.
If an adjudicator's order requires the head to give access to a record about which notice has been given to a third party under section 33, the head of the public body must not take steps to comply with the order until the period for bringing an application for judicial review under subsection (3) ends.
An application for judicial review of an adjudicator's order must be made within 25 days after the person making the application is given a copy of the order, unless the court extends the period.
Subsections 67(1), (2) and (3) are replaced with the following:
Subject to subsection (2), a person who
(a) has been refused access to a record or part of a record requested under subsection 8(1); or
(b) is a third party notified under section 33 of a decision by the head of a public body to give access;
may appeal the decision to the court.
An appeal may be made under subsection (1) only if
(a) the person has made a complaint to the Ombudsman about the decision and the Ombudsman has provided a report under section 66; and
(b) the deadline set out in subsection 66.1(4) for the Ombudsman to request the adjudicator to review the matter has expired, and the Ombudsman did not request a review.
An appeal is to be made by filing an application with the court within 30 days after the deadline set out in subsection 66.1(2) expires, or within any longer period that the court may allow in special circumstances.
In the following provisions, "or 68" is struck out:
(a) section 69;
(b) subsection 70(1);
(c) sections 71 and 72;
The following is added after section 76:
The government shall make available to the public a summary of the total annual expenses incurred by each member of Executive Council for the following:
(a) transportation and travel;
(b) accommodation and meals;
(c) promotion and hospitality;
(d) cell phone and personal electronic communication devices.
The summary is to cover the period beginning on April 1 of one year and ending on March 31 of the following year, and must be made available within four months after the end of each fiscal year.
In this section, "expenses" means costs
(a) that the member incurs personally while performing the responsibilities of his or her office; and
Subsection 85(1) is amended by striking out "or" at the end of clause (c), adding "or" at the end of clause (d) and adding the following after clause (d):
Section 87 is amended
(a) by repealing clause (c);
(b) in clause (i), by striking out "sections 44, 46 and 47" and substituting "subsections 44(1.2), 44.1(3) and 47(4)";
(c) by repealing clause (k); and
The following is added after section 97:
If a public body, pursuant to an agreement entered into under section 46 before the coming into force of this section, disclosed names, addresses and drivers' licence numbers to the War Amputations of Canada, the public body may continue to disclose that information despite subsection 44(1) (restrictions on disclosure), if War Amputations of Canada uses the information only in accordance with the terms of the agreement.
If a local public body disclosed information pursuant to an agreement entered into under section 46 before the coming into force of this section, it may continue to do so despite subsection 44(1) (restrictions on disclosure), if the body to whom the information is disclosed uses it only in accordance with the terms of the agreement.
Section 98 is replaced with the following:
The minister must undertake a comprehensive review of the operation of this Act, which involves public representations, within five years after an adjudicator is first appointed under section 58.1.
The minister must submit a report on the review to the Legislative Assembly within one year after the review is undertaken, or within such further time as the Assembly may allow.
Any complaint made to the Ombudsman before an adjudicator is appointed under section 58.1, as enacted by section 23, must be concluded under the former Act as though section 58.1 had not come into force.
The definition "office" in section 2 of The Public Interest Disclosure (Whistleblower Protection) Act is amended by striking out "and" at the end of clause (c) and adding the following after clause (c):
(c.1) the office of the Information and Privacy Adjudicator; and
This Act comes into force on a day to be fixed by proclamation.