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A Discussion Paper on Amending

the Right to Information Act

Executive Council Office
Government of New Brunswick
February 1998

TABLE OF CONTENTS

  1. INTRODUCTION

  1. BACKGROUND TO THE DISCUSSION

  1. ISSUES

      3.1 Extension of the Scope to Municipalities and Universities

      3.2 Process

      3.2.1 Requirement for a written application

      3.2.2 Transfer of a request to another public body

      3.2.3 Option to refuse to confirm or deny the existence of a document

      3.2.4 Requirement to make the information available in the languages in which it exists

      3.2.5 Extension of time for responding to a request

      3.2.6 Extension of Time for Ombudsman Review

      3.2.7 Time Limit for Referring a Matter to the Ombudsman or the Courts

      3.2.8 Limitation of Liability

      3.3 Implementation of Fees Based on Cost Recovery

      3.4 Exceptions

      3.4.1 Confidentiality of deliberations of the Executive Council and its Committees

      3.4.2 Advice to Public Bodies

      3.4.3 Information Respecting Arms-length Public Bodies

      3.4.4 Financial or Economic Interests of a Public Body

      3.4.5 Financial or Economic Interests of a Third Party

      3.4.6 Personal Information

      3.4.7 Intergovernmental Relations

      3.4.8 Privileged Communication



1 Introduction

Since the late 1970’s, successive Canadian jurisdictions have enacted legislation giving the public access to government information. The New Brunswick Right to Information Act was passed in 1978 as part of this movement. The policy underlying the legislation in all jurisdictions is that the public has a right to information respecting the public business of the Province, subject to specified and limited exceptions. While the policy has not changed, legislation to implement the policy has evolved over the past twenty years to become much more specific, particularly in exception provisions. The New Brunswick Right to Information Act is being reviewed in this Canadian context and in the light of twenty years experience.

The problems identified and the proposals in this paper are based on consideration of:

  • trends in legislation in other Canadian jurisdictions ;
  • judicial decisions;
  • decisions and recommendations of the Ombudsman;
  • proposed privacy legislation;
  • increasing diversity of government bodies;
  • interdepartmental consultation;
  • the 1990 Discussion Paper on the Right to Information Act.

The issues to be examined are grouped under the following topics:

  • scope;
  • processes; and
  • exceptions.

In Chapter 3 of this paper, each issue is addressed in terms of the current situation, recommendations for change, and, in many instances, possible wording for legislative amendment. The term "public bodies" is used throughout to encompass government departments and agencies currently subject to the Act and any possible extensions.

As a Green Paper, the suggestions made in this document are not firm government policy; instead they are an indication of current thinking. The intent of this paper is to further discussion on amendments to the Right to Information Act. Although existing provisions not being recommended for amendment are not included in this paper, comment is invited on any matter related to the Right to Information Act.

 

2 Background to the Discussion

In 1978, New Brunswick became the second jurisdiction in Canada to pass access to information legislation. This Right to Information Act was proclaimed and came into force on January 1, 1980.

Amendments were made to the New Brunswick Act during the past twenty years, for the most part to the categories of exceptions. In 1982, an exception was added for business and financial information supplied to government in an application for financial assistance or pursuant to a contract authorized by statute. In 1985, an exception was added respecting information obtained by police or the attorney general about illegal activities, including the source of the information. In 1986, the exception for personal information was amended by removing the requirement that it be given on a confidential basis.

In 1995 changes were made to the Act as part of the review which culminates with the current proposals. These changes, which took effect on July 1, 1996, extended the Act to include school boards and hospital corporations; excluded published information from the application of the Act; excepted information relating to security of buildings, structures or systems; excepted opinions and recommendations to a Minister or Executive Council without specifying the source; and provided authority to specify in regulations information open to access in spite of its falling within an exception category.

Focus at this time is on considering further extension to the Act; providing more specific and detailed exception provisions; providing appropriately for diverse government organizations; considering establishing fees based on partial cost recovery; and making adjustments to processes.

Closely linked with access to information is legislation protecting personal privacy. In some jurisdictions, access to information and protection of personal privacy are covered by one piece of legislation. In New Brunswick, as is the case with the Government of Canada, there is separate legislation for information access and privacy protection. A new Protection of Personal Information Act has been introduced in the current session of the Legislative Assembly. The link between the Protection of Personal Information Act and the exception for personal information in the Right to Information Act is explained as part of the discussion of personal information in this paper.

 

3 Issues

3.1 Extension of the scope to municipalities and universities

Current Situation:

The current New Brunswick Act does not apply to municipal bodies or universities. There is movement in other Canadian jurisdictions to include these bodies within the scope of their access to information legislation, the inclusion being linked to the degree such bodies are supported by government appropriations.

Municipalities:
The access legislation of British Columbia, Alberta, Saskatchewan, Ontario and Quebec applies to municipal bodies. Nova Scotia’s legislation provides for extending its scope to municipal bodies by regulation. Manitoba has access to information provisions in its Municipal Act and it is likely that other jurisdictions have some related provisions in municipal legislation. New Brunswick’s Municipalities Act provides for access to specified types of information.

New Brunswick municipalities have considered the issue of access to municipal information as part of an intensive review of the Municipalities Act. They have made recommendations which support greater disclosure of documents kept by municipalities. The exceptions identified by municipalities as being required are the same categories as identified for provincial bodies. Municipalities may prefer, however, to govern access to municipal documents through the Municipalities Act in the belief that the legislation could be better tailored to their needs.

Universities:
There is also some movement in Canada to include universities in the provincial access to information legislation. The legislation of British Columbia, Alberta, and Saskatchewan applies to universities and Nova Scotia has the authority to extend the legislation to universities by regulation. The legislation of Quebec applies to institutions of higher education if more than half of their operating expenses are paid out of appropriations tabled in the Legislative Assembly.

Recommendations:

  • That municipalities and municipal structures be considered for inclusion in the Right to Information Act.
  • If municipalities and municipal structures are included in the Act, that any specific exceptions required to meet their needs be identified through additional consultation.
  • That universities be considered for inclusion in the Right to Information Act.
  • If universities are included in the Act, that any specific exceptions required to meet their needs be identified through additional consultation.

3.2 Process

Current Situation:

Provisions in the Act govern the processes of requesting information, responding to a request, and referring a decision. Amendments to the process have been few, largely because they have worked quite well. In 1986 the Act was amended to establish the relationship between the Act and information held by the Archives. In 1995 amendments excluded published material from the application of the Act. Additional amendments are being proposed in this paper, including recommendations respecting the fee structure and prescribed time limits.


3.2.1 Requirement for a written application

Current Situation:

The Act does not state that an application under the Act must be in writing, although the requirement has been inferred in order for there to be a record that could be referred to the Ombudsman or the court. For clarity, a statement is needed that the application must be in writing.

Recommendation:

  • That a request for information under the Act be required to be in writing but that there not be a mandatory application form.

3.2.2 Transfer of a request to another public body

Current Situation:

The Act currently provides that a Minister who receives a request for information not held within his or her department must notify the applicant of that fact and of the department where the information is held. The result is that the applicant has to send a new request to the identified department.

Recommendation:

  • That the head of a public body transfer the application to another public body if the head can determine where the information may be kept and that the head notify the applicant of the transfer.
  • That the application be deemed received on the date it is received by the body to whom it was transferred.

Possible Wording for Legislative Amendment:

If the head determines that the requested information is not kept or filed in the public body of which he or she is the head and, if the head has reason to believe that the information is kept or filed in another public body, the head shall transfer the application to that other public body.

If the head has transferred an application to another public body, the head shall advise the applicant that the application has been transferred to such a public body,

Where a head transfers an application to another public body, the application shall be deemed to have been made to that public body on the day on which that public body receives it.


3.2.3 Option to refuse to confirm or deny the existence of a document

Current Situation:

The Act currently provides that the Minister must grant the request, deny access to the document, or inform the applicant that the document does not exist. In each of these situations the Minister confirms that the document does or does not exist. There can be situations, however, in which that confirmation, in itself, reveals information excepted from the right of access under the Act.

Recommendations:

  • That the head of a public body be given the option of refusing to confirm or deny that the document exists;
  • That the use of the provision be limited to information respecting personal information, health and safety, and law enforcement.
  • That silence on the existence of the documents be preserved through the referral and appeal processes.

Possible Wording for Legislative Amendment:

Where a head denies an applicant access to information because it is excepted from access as personal information, or falls within exceptions related to law enforcement or pubic or individual health or safety, the head may refuse to confirm or deny that the requested information does or ever did exist.

If the head has denied the applicant access to the information and has refused to confirm or deny that the requested information does or ever did exist, the Ombudsman or a judge may conduct any inspection, conduct the referral, hold any hearing and, except in the case of a judge making an order that the existence of the document be revealed, make any decision or order in a manner that ensures that the existence of the information is not confirmed or denied to the applicant.


3.2.4 Requirement to make the information available in the languages in which it exists

Current Situation:

The existing provision is that the requested information "shall only be provided in the language in which it was made". Given the large number of documents which exist in both official languages, the current provision is more restrictive than necessary.

Recommendation:

  • That where the information exists in both official languages it will be provided in either or both of the official languages at the option of the applicant.

Possible Wording for Legislative Amendment:

If an application for access to information is granted and the information exists in only one language, the applicant shall have access to it only in the language in which it exists

If the requested information exists in both English and French, the head shall give the applicant access to it in either language or both languages, at the option of the applicant.


3.2.5 Extension of time for responding to a request

Current Situation:

The Act now provides that the response to a request must be made within 30 days of its receipt. When it has not been possible to comply with the time period, Ministers have relied on extensions by agreement. Some proposed amendments, such as the transfer provisions and the responsibility to develop cost estimates, will increase current difficulties in meeting the 30 day period.

Recommendation:

  • That the head have discretion in certain circumstances to extend the response time for up to 30 days, notifying the applicant of the extension, providing the reason, and indicating when the response could be expected.

Possible Wording for Legislative Amendment:

A head of a public body may extend the 30 day time period for response for a reasonable further period, not exceeding thirty days, if

(a) a large amount of information or a large number of documents have been requested or must be searched and meeting the deadline would unreasonably interfere with the operations of the public body,

(b) the applicant has not given sufficient detail to enable the head to identify the document in which the requested information is contained and the head requests more information in order to identify the relevant document,

(c) more time is needed to consult with a third party or another public body before the head can render a decision in relation to the application, or

(d) a third party provides written representations for the head’s consideration.


3.2.6 Extension of Time for Ombudsman Review

Current Situation:

The existing provision requires the Ombudsman to review a referred matter within thirty days of receiving the referral and forthwith to advise in writing the Minister of his or her recommendations and send a copy of the recommendations to the person making the referral. In circumstances where there are many documents to review or difficult issues to be resolved it may not even be possible for the Ombudsman to meet the statutory requirement. No other access legislation imposes such a tight time limit on the reviewing body.

Recommendation:

  • That the time limit for the review by the Ombudsman be extended to sixty days.

3.2.7 Time Limit for Referring a Matter to the Ombudsman or the Courts

Current Situation:

There is no time limit in the current Act for referring a matter to the Ombudsman or to the Court of Queen’s Bench.

Recommendation:

  • That a time limit of thirty days be provided to refer to the Ombudsman or the Court of Queen’s Bench a decision of a head of a public body or failure of a head to respond within the legislated time period.

3.2.8 Limitation of Liability

Current Situation:

The current Act contains no provision protecting a public body or individual from civil suit respecting the carrying out of responsibilities under the Act. As the processes become more complex, there is more chance of being open to such action notwithstanding having acted in good faith. Every other Canadian jurisdiction includes a provision limiting its liability in a civil action in its access legislation.

Recommendation:

  • That a provision protecting a public body and its employees and agents from civil suit be enacted.

3.3 Implementation of Fees Based on Partial Cost Recovery

Current situation:

The existing Act provides for an application fee set at $5.00 and unchanged since 1978, and copying fees set at 10 cents a page for photocopies and actual cost if other means of reproduction are needed. The quantum of fees is established by regulation.

Requests for information often involve significant commitment of time and resources. During the past ten years, the fee structures of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Nova Scotia have been amended to provide for compensation for a portion of these costs. The legislation in these provinces supports the processing fees with provisions requiring the public body to provide estimates of the final cost, and, in several jurisdictions, with the authority to require a deposit before a search is started. The legislation of all jurisdictions provides the statutory authority to waive fees in circumstances prescribed by regulation. The quantum of fees is established by regulation.

Recommendations:

  • That New Brunswick implement provisions permitting recovery of certain costs related to processing a request.
  • That statutory support for the fee schedule based on cost recovery be legislated as follows:

Expressly provide in the statute that the head of a public body may require the applicant to pay to the public body fees for processing requests as provided for in the regulations. Provide also the appropriate regulatory authority.

Provide that the head of a public body may excuse the applicant from paying all or part of the fee in circumstances prescribed by regulation. Provide the appropriate regulatory authority.

Provide that the head of a public body may require partial pre-payment of the estimated cost before material is collected.

Provide that the act allow more appropriate response time given the new requirements or provide the authority to set appropriate time by regulation.

Possible Wording for Legislative Amendment:

Subject to this section, where an application for access to information is granted in whole or in part, a head may provide the access upon payment of all applicable fees in accordance with the regulations.

Upon receiving an application and the application fee, the head of a public body shall, where required by regulation and in accordance with the regulations, provide the applicant with a reasonable estimate of the cost of processing the application.

A head may include in an estimate a requirement that an applicant pay, before any further time is spent in processing the application, a deposit of an amount that does not exceed one-half of the estimated cost.

The 30 day time period for responding to a request is suspended between the time when the head provides an estimate and the time when the applicant notifies the head that the applicant wishes to proceed with the request, or, if a deposit is required, until the deposit is received.

If the amount of the estimated cost is different from the actual cost of processing the application, the fees payable shall be the actual cost.

A head may, in accordance with the regulations, waive all or part of the fees payable in relation to an application, other than the application fee.


3.4 Exceptions

The right to access information is stated very broadly, but its exercise must be balanced against competing interests which require some degree of confidentiality. Types of information which require some degree of confidentiality make up the exceptions component of access legislation.

The categories of information excepted from the right to access under the Act are consistent across the country. All of the categories included or proposed to be included in the New Brunswick Act are in other Canadian access statutes.

All exceptions in the New Brunswick Act are discretionary. The exceptions clauses provide that there is no right to access certain information. It does not state that such information can not be released. The head of a public body has an obligation to exercise that discretion having given full and careful consideration to related information and interests.


3.4.1 Confidentiality of deliberations of the Executive Council and its committees

Current situation:

There is no explicit provision in the Act which excepts all documents which could reveal deliberations of the Executive Council and its committees from the public right to access government documents. There is an explicit exception for documents which would reveal opinions and recommendations for a Minister or Executive Council and there is an exception for information the confidentiality of which is protected by law, which includes common law.

When the Act was passed in 1978, common law protected the confidentiality of cabinet documents. Documents prepared for cabinet, or emanating from cabinet or that recorded its proceedings or those of its committees were confidential based on what is often described as Crown privilege. Thus there was no need at that time to include a specific provision respecting cabinet confidences.

The privilege that protected cabinet documents from disclosure as a class has eroded since the New Brunswick Act was passed. In 1986, in the case Carey v. The Queen in Right of Ontario , the Supreme Court of Canada held that there is no common law privilege protecting cabinet documents as a class from disclosure. The result is a degree of uncertainty about the scope of confidentiality a court would accord a particular cabinet document.

All Canadian jurisdictions except New Brunswick include in their current access legislation explicit statements of the scope of the exception for cabinet documents.

Recommendations:

  • That provisions be included in the Act providing that there is no right to information which would disclose the substance of deliberations of the Executive Council or any of its committees.
  • That the exception would not apply to information provided for background if the decision has been made public, implemented, or five years have passed since the decision was made or considered.
  • Given that Canadian governments have set a time limit on confidentiality of Cabinet documents varying from 10 years to 30 years, that a provision be included setting a time limit on confidentiality of 20 years as is now provided for cabinet documents in the Archives Act.

Possible Wording for Legislative Amendment:

There is no right to information under this Act where its release would disclose the substance of deliberations of the Executive Council or any of its committees, including

(a) an agenda or other record of deliberations or decisions of the Executive Council or any of its committees,

(b) a document containing policy options or recommendations submitted or prepared for submission to the Executive Council or any of its committees,

(c) a document that does not contain policy options or recommendations referred to in paragraph (b) but that contains background explanations or analyses of problems submitted or prepared for submission to the Executive Council or its committees for their consideration in making a decision in advance of the making or implementation of the decision,

(d) a document used for or reflecting consultation among Members of the Executive Council on matters relating to the making of government decisions or formulation of government policy, or

(e) a document the purpose of which is to brief a Member of the Executive Council in relation to matters that were brought before, are before or are proposed to be brought before the Executive Council or any of its committees or that are the subject of consultation among Members of the Executive Council related to government decisions or the formulation of government policy.

The exception for Executive Council documents does not apply to information contained in a document prepared in order to present background explanations or analyses to the Executive Council or any of its committees for its consideration in making a decision if

(a) the decision has been made public,

(b) the decision has been implemented, or

(c) five years or more have elapsed since the decision was made or considered

The exception for Executive Council documents does not apply to information that has been in existence for twenty years or more.


3.4.2 Advice to Public Bodies

Current Situation:

The Act currently excepts from access documents containing opinions or recommendations for a Minister or the Executive Council. The purpose is to encourage the provision of full and frank advice and opinion to support government decisions. The current provision does not include closely related types of information which could be outside the exception on a narrow interpretation of the terms opinion and recommendations. Nor does it take into account that most expressions of opinion and related types of information will be for a person other than the Minister or Executive Council, such as the Deputy Minister.

Recommendation:

  • That an exception be made under the Act for information whose release would disclose advice, opinions, proposals, recommendations, analyses or policy options developed by or for a public body or its head.
  • That consideration be given to listing by regulation types of information to which the public would have access even though the information may come within the definition of this exception, that list to include information such as:

    a) an instruction or guideline issued to the officers or employees of a public body, or

    b) a substantive rule or statement of policy that has been adopted by a public body for the purpose of interpreting an Act of the Legislature or a regulation under such an Act for the purpose of administering a program or activity of the public body.

  • That the exception from right to access not apply to information that has been in existence for twenty years or more.

3.4.3 Information Respecting Arms-length Public Bodies

Current Situation:

There are public bodies which operate at arms-length from government with Executive Council and its Committees playing a minimal role in their operational decision-making. Considerable authority for policy formulation and decisions rests with a board of directors. At present there is no exception related to decision making of such organizations except for the provision enacted in 1995 specifically applying to hospital corporations. There may be applicable confidentiality clauses in other statutes related to a particular organization’s mandate. A confidentiality provision similar to that being recommended is included in the legislation of several other Canadian jurisdictions.

Recommendation:

  • That deliberations of Boards of arms length bodies, particularly corporations, be excepted from the right to access information.

Possible Wording for Legislative Amendment:

There is no right to information under the Act where its release would disclose the subject or substance of an agenda, minutes or other record of deliberations or decisions of closed meetings of a public body which is a board, commission, or corporation, or briefings to members of such a board respecting matters that were, are, or are proposed to be brought before such a meeting.


3.4.4 Financial or economic interests of a public body

Current Situation:

In the existing Act financial and economic interests of a public body and of a third party are governed by the same provision. This provision excepts from access information that would cause financial loss or gain to a person or department or would jeopardize negotiations leading to an agreement or contract if released. In the legislation of every other Canadian jurisdiction the financial and economic interests of government and public bodies are treated separately from those of third parties and the particular needs of both groups are identified.

The scope of this confidentiality clause has been narrowed by judicial interpretation of the terms "would cause" and "would jeopardize" which require a high standard of proof that the argued result would indeed take place if the information were released. In almost all jurisdictions the standard of proof is lower through use of the words "could reasonably be expected to cause", rather than "would cause".

Recommendations:

  • That the legislation of British Columbia and similar legislation in other provinces be considered in developing a more comprehensive exception for financial and trade secret information of public bodies and third parties.
  • That there be no right to information under the Act where its release could reasonably be expected to harm the financial or economic interests of a public body or the ability of the government to manage the economy.

Possible Wording for Legislative Amendment:

There is no right to information under this Act where its release could reasonably be expected to harm the financial or economic interests of a public body or the ability of the government to manage the economy, including the following:

  1. trade secrets and commercial, financial, scientific, technical or production information that belong to a public body and that have or are reasonably likely to have monetary value;
  2. information obtained through research by an employee or agent of a government body, if the disclosure could reasonably be expected to deprive the researcher of priority of publication;
  3. plans that relate to the management of personnel of a public body and that have not yet been implemented or made public;
  4. positions, plans, procedures, criteria or instructions developed for the purpose of contractual or other negotiations carried on or to be carried on by or on behalf of the government of New Brunswick or a public body or considerations relating to such negotiations;
  5. information the disclosure of which could reasonably be expected to prejudice the competitive position of a public body; and
  6. information the disclosure of which could reasonably be expected to result in the premature disclosure of a proposal or project of a public body or in undue financial benefit or loss to a person.

3.4.5 Financial or economic interests of a third party

Current Situation:

Currently the Act provides:

There is no right to information under this Act where its release

(c) would cause financial loss or gain to a person or department, or would jeopardize negotiations leading to an agreement or contract;

(c.1) would reveal financial, commercial, technical or scientific information

(i) given by an individual or a corporation that is a going concern in connection with financial assistance applied for or given under the authority of a stature or regulation of the Province, or

(ii) given in or pursuant to an agreement entered into under the authority of a statute or regulation, if the information relates to the internal management or operations of a corporation that is a going concern.

There is considerable consensus across the country as to the provisions needed to give a third party the necessary protection for confidential business information.

Recommendations:

  • That the New Brunswick provision for excepting from access business-related information of a third party follow the pattern of similar provisions in other Canadian jurisdictions, exempting trade secrets and other business-related information supplied in confidence when the release of such information could be expected to be harmful to the third party or harmful to the public body in that information the public body needed would no longer be supplied.
  • That, since the head of a public body may not have sufficient information to know whether requested information fits squarely within the above exception, a notice to third parties be required and the third party be given opportunity to provide that information before it is released.
  • That the third party entitled to notice be given the status to make submissions to the Court of Queen’s Bench or the Ombudsman on a referral of a decision.

Possible Wording for Legislative Amendment:

There is no right to information under this Act where its release would reveal

(a) trade secrets of a third party, or

(b) commercial, financial, scientific, technical, labour relations or production information supplied to a public body by a third party implicitly or explicitly in confidence, the release of which could reasonably be expected to

(i) harm significantly the competitive position or interfere significantly with the negotiating position of a third party,

(ii) result in a third party’s ceasing to supply such information or similar information to the public body, where it is in the public interest for that supply to continue, or

(iii) result in undue financial benefit or loss to any person.

The exception to the right to access information does not apply to the release of information in relation to a third party if the third party has consented in writing to the release.

Participation by third parties

A head of a government body shall serve a third party with a third party notice under this section if the head has reason to believe that he or she may be granting an applicant access to information to which the applicant has no right under this Act, because the information is financial or business information of a third party.

The requirement for notice does not apply if the third party has served the head with a waiver of the notice or a written consent to the giving of access or if, in the opinion of the head, the third party can not reasonably be located.

A third party notice shall

(a) inform the third party of the application and of the intention to give access to the requested information,

(b) describe the content of the requested information,

(c) give the third party twenty days from service of the notice to consent to the giving of access or to serve the head and the applicant with written representations as to why the access should not be given, and

(d) indicate to the third party the date on which access to the information may be given to the applicant.

If the third party provides to the head and the applicant, within the twenty days provided, written representations as to why access should not be given, the head shall

(a) take the written representations into consideration in rendering a decision as to whether or not to grant the application,

(b) within the thirty day time period for response, serve the third party with a copy of the written notice that is served on the applicant under that subsection, and

(c) if the head has decided to grant access to the applicant in whole or in part, notify the third party that the access will be given to the applicant not less than twenty days after the third party is served with the copy of the written decision, unless the third party refers the matter to a judge of The Court of Queen’s Bench of New Brunswick or to the Ombudsman within that period.

A head who has served a third party notice shall not grant the applicant access to the requested information

(a) during the twenty day period provided to make representations;

(b) if the third party serves the head and the applicant with written representations within the twenty day period provided, during the further period between the making of the decision and the expiration of the twenty day period provided to refer the decision.


3.4.6 Personal Information

Current Situation:

The Protection of Personal Information Act has been introduced in the current session of the Legislative Assembly and contains provisions which will amend the Right to Information Act as a consequential to the Protection of Personal Information Act. The new Act will govern disclosure of personal information. The process under the Right to Information Act continues to apply when a formal request is made for personal information.

The Protection of Personal Information Act will amend the Right to Information Act to state explicitly that a person has a right to information about himself or herself and will provide the limited circumstances in which that right does not exist. It will also amend the definition of personal information so the definition in the two statutes will be consistent.

The Protection of Personal Information Act will provide that personal information may be disclosed without consent


3.4 (g) for some other substantial reason in the public.

A public body may disclose personal information under paragraph 3.4(g) in furtherance of the public interest in open government.

Any collection, use or disclosure of personal information without consent shall be limited to the reasonable requirements of the situation.

There are some types of personal information, such as information directly related to employment with government, in which the public interest in open government is generally accepted as outweighing the right to privacy. The head of a public body has a discretion to release such information under the Right to Information Act as it exists and as it will be amended.

The Right to Information Act currently contains the authority to "prescribe exceptions to information to which there is no right under section 6" (the exception provisions). This authority can be used to provide greater certainty as to what information is confidential and what can be released.

Recommendation:

  • That consideration be given to listing by regulation types of information to which the public would have access even though the information comes within the definition of personal information, that list to include employment related information such as:

information about a third party’s classification, salary range, discretionary benefits or employment responsibilities as an officer, employee or member of a public body;

information about expenses incurred by the third party while traveling at the expense of a public body.


3.4.7 Intergovernmental Relations

Current Situation:

The existing provision provides an exception from the right of access for information received in confidence from another government. Governments included in the provision are not identified. There is a judicial decision that the New Brunswick definition does not extend to an agency of the federal government.

In all other jurisdictions, governments included in the provision are identified. The legislation of British Columbia, Alberta, Saskatchewan, and Nova Scotia includes municipal governments and that of British Columbia and Nova Scotia includes aboriginal organizations which exercise governmental functions. All other jurisdictions specify that government includes agencies of that government

All of the access statutes contain the exception for information received in confidence from another government. All of the access statutes except New Brunswick contain an additional exception for information that may not have been received from another government but could harm the government’s relations with one or more other governments if the information were released.

Recommendations:

That the Act be amended to provide an exception for both information received in confidence and information the release of which could prejudice intergovernmental relations.

The Act be amended to define governments as in the legislation of British Columbia and Nova Scotia which includes agencies, municipal governments, and aboriginal organizations.

Possible Wording for Legislative Amendment:

There is no right to information under this Act where its release would reveal information

  1. that could reasonably be expected to prejudice relations or negotiations between the Province or one of its agencies, and any of the following or any of their agencies:
    1. the government of Canada;
    2. the government of a province or territory of Canada;
    3. a council of a municipality;
    4. an aboriginal organization that exercises a governmental function; or
    5. the government of a foreign state or an international organisation of states, or
  1. supplied in confidence by any government, council, or organisation referred to in paragraph (a), or any of its agencies;

3.4.8 Privileged Communication

Current Situation:

The Act currently provides that "there is no right to information where its release would disclose legal opinions or advice provided to a person or department by a law officer of the Crown, or privileged communications as between solicitor and client in a matter of department business". A question has been raised as to whether the exception extends to communication from client to solicitor as well as solicitor to client. There is also a concern that documents that are privileged from disclosure in a legal proceedings could be obtained under the Right to Information Act, such as investigative reports privileged from disclosure section 43.1 of the Evidence Act.

Recommendation:

That the exception respecting privileged documents be extended to ensure confidentiality of solicitor/client communications originated by either party and confidentiality of documents privileged from disclosure in legal proceedings.




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