Third Session, Thirty-sixth Parliament

SPECIAL COMMITTEE TO REVIEW THE
FREEDOM OF INFORMATION & PROTECTION OF PRIVACY ACT
REPORT

The following electronic version is for informational purposes only.
The printed version remains the official version.

Committee email: ClerkComm@leg.bc.ca

Special Committee to Review the
Freedom of Information & Protection of Privacy Act

Report

Third Session
Thirty-sixth Parliament

July 15, 1999

To the Honourable,
The Legislative Assembly of
the Province of British Columbia
Victoria, British Columbia

Honourable Members:

We have the honour to present the Report of the Special Committee to Review the Freedom of Information and Protection of Privacy Act for the Third Session of the Thirty-Sixth Parliament.

Respectfully submitted on behalf of the Committee.

Committee Process

The Special Committee to Review the Freedom of Information and Protection of Privacy Act was appointed July 29, 1997 during the 2^nd session of the 36^th Parliament, as required by section 80 of the Act, which dictates that a Legislative Committee conduct a comprehensive review of the Act and report any of its recommendations to the Legislative Assembly.

Before commencing its review, the Committee requested briefings from the provincial governments’ Information, Science and Technology Agency -- the central agency responsible for the Freedom of Information and Protection of Privacy Act -- and the Information and Privacy Commissioner. In November 1997 the Information, Science and Technology Agency briefed the Committee on certain provisions of the Act. The Information and Privacy Commissioner briefed the Committee early in December 1997 on the role of his office under the Act. The Office of the Information and Privacy Commissioner reviewed its annual report with the Committee in October 1998.

The Committee was invited to attend three workshops on privacy issues: the Fourth Annual Conference of the Office of the Information and Privacy Commissioner, "Surveillance Technologies: Challenges to Privacy Rights" (October 1998), the Fifth Annual Conference of the Office of the Information and Privacy Commissioner, "Private Lives and Public Accountability: Striking A Balance" (October 1998), and a federal-provincial conference on Electronic Commerce and the Protection of Personal Information (November 1998).

The Freedom of Information and Protection of Privacy Act applies to the provincial public sector, including government ministries, municipalities, health and educational institutions, and self-governing regulatory bodies. It provides citizens with information and privacy rights and a means of exercising them. The Committee was mandated to review all aspects of the Act. Because the Act provides citizens with rights of access to public records and rights of privacy for personal information held in the public sector, one of the Committee’s first decisions was to include the public in the review of the Act. The Committee resolved to ask the primary users of the Act -- the public -- to comment on its effectiveness.

To that end, the Committee published a request for written submissions in major British Columbia newspapers in November 1997 and January 1998. As well, it contacted Members of the Legislative Assembly and public agencies coming under the purview of the Act, advising them of the Committee’s mandate and inviting their comments. The Committee also agreed upon a public hearing schedule that would take the Committee throughout the province.

The Committee held its public hearings from mid-January to the end of February 1998. In that six-week period, the Committee traveled to Vancouver, Burnaby, Abbotsford, Kamloops, Kelowna, Prince George, Saanich and Victoria. The Committee also held a public hearing in Richmond in October 1998 to enable additional witnesses to participate.

The Committee heard from the public, interest groups, public bodies and some private sector agencies with an interest in freedom of information and privacy protection. In total the Committee received 136 written submissions and heard 116 oral submissions on issues arising out of the Freedom of Information and Protection of Privacy Act. Of the 136 written submissions, 59 were received from individual citizens, 37 represented public bodies bound by the Act and 40 represented the views of interest groups. Of the 116 oral presentations, 40 were by individual citizens, 32 by public bodies working under the Act and 44 by interest groups.

The Committee acknowledges the work of the following individuals who assisted the Committee with its work: Neil Reimer (Committee Clerk) and Craig James (Clerk of Committees and Clerk Assistant), Committees Assistant, Karen Heighes, Hansard Recordists, Pat Samson, Marilyn Pollard and Jennifer Horvath, and especially, Wynne MacAlpine, Researcher.

The Committee would also like to acknowledge the invaluable contribution of those witnesses who appeared before the Committee and others who submitted written submissions. It was clear that witnesses spent a great deal of time contemplating the issues of freedom of information and privacy protection. Their comments helped to illustrate the practical functioning of the Act, as well as draw out broader issues surrounding freedom of information and privacy. The transcripts of the public hearings and witnesses’ written submissions represent an invaluable record of insight and opinions on access and privacy in British Columbia. Transcripts of the committee’s meetings can be viewed on the Clerk of Committees’s web site, at: www.legis.gov.bc.ca/cmt/.

Schedule of Meetings

Explanatory Note

Witnesses’ recommendations brought three types of questions into focus: issues concerning specific sections of the Act, issues arising out of public bodies’ practices based on the Act, and issues arising from new developments in information management that are not currently within the scope of the Act. The Committee therefore considered witnesses’ section-specific comments, their comments on those interpretive and practical issues that witnesses identified as arising from public bodies’ administration of the Act, and emerging issues that witnesses believe should be anticipated by British Columbia’s freedom of information and protection of privacy legislation.

While witnesses’ comments can be categorized into the above three types, the substance of their proposals was too diverse to encapsulate thematically. The Committee considered all of the commentary presented; yet, given the wide variety of points raised, the Committee agreed that its final report could discuss only those issues that were raised repeatedly or that generated significant questions on substantive matters.

Witnesses’ comments have been incorporated into the report as they were presented to the Committee. Bearing in mind that statutory language is complex and that, often, interpretive clarity is achieved only through adjudication, it was inevitable that occasionally suggestions were based on a misunderstanding of the Act. Where it reiterates witnesses’ views, this report does not attempt to "correct" apparent inaccuracies. By providing witnesses’ views as they were expressed to the Committee, even where they lack precision, readers will better be able to observe the nature of witnesses’ concerns on freedom of information and privacy protection.

Recommended Amendments

Routine release   section 2

Many submissions commented that the Freedom of Information and Protection of Privacy Act (FIPPA), rather than facilitating the release of government information, has made it more difficult to obtain, since public bodies now routinely require that individuals make formal requests. When the Act was proclaimed, the public was told that it was not intended to serve as an avenue of first request. The public was assured that routine requests for information would not require official application under the Act. However, many submissions claim that now the norm is "official adversarialism" -- a term employed by Professor Alasdair Roberts at Queen’s University to describe public bodies’ use of the Act as the first step in an information request, even for documents that were previously released routinely. In addition to undermining the spirit and intent of the FIPPA, many witnesses contend that this approach is responsible for public bodies’ high costs in administering the Act. It was submitted that the more broadly government information is disseminated and used, the greater the return on the government’s investment in collecting or creating that information.

It was proposed that the government establish a depository program to make print and electronic government information available to the public. The government could also establish an overall coordinating mechanism for indexing all government publications. Witnesses generally recommended that public bodies be encouraged to foster a climate of openness. Witnesses also acknowledged that government will, over time, become more willing to release information once employees begin to see that particular types of information are frequently requested and authorized for release under the FIPPA. It was noted that the Office of the Information and Privacy Commissioner has done very well with respect to promoting routine release, but should be encouraged to take more responsibility for trying to foster openness.

Committee members were sympathetic to many of witnesses’ comments on this issue. They received one submission that they agreed illustrated especially well that public bodies need to be reminded of their obligation to routinely release non-sensitive information. The submission included documentation of a formal request for obtaining Annual Allowable Cut figures from the Ministry of Forests. The requester asked for annual allowable cut figures for each operating area in the Nelson region for the period 1975 to the present, the volumes harvested each year, the areas harvested each year, and the stumpage paid each year. The Committee felt that the information requested in the above case could have been provided without a formal request, and that this is a good example of how public bodies defeat the principle of openness expressed by the FIPPA by requiring formal requests for information that could be released routinely.

The Committee agreed that the spirit of the FIPPA is to encourage the routine release of information. While members conceded that it is difficult to foster a culture of acceptance for routine release among public bodies, they also agreed that it would not be possible to legislate a change in attitude.

It was noted that section 2, "Purposes of this Act", states that the Act intends to make public bodies more accountable to the public, to give the public a right of access to records, and to "not replace other procedures for access to information or limit in any way access to information that is not personal and is available to the public." Members commented that the current language of this section gives, at best, a passive expression to the principle of routine release, and that the principle should be rewritten to form a more positive obligation to routinely release information.

Recommendation #1:

That a statement be added, in a new preamble to the Act or in an amendment to section 2, to emphasize, to the commissioner or any interpretative body, that in the interest of supporting a free and democratic society and accountable and responsible government, the Act should support open and ready access to government information.

Post-secondary teaching and research materials   section 3

Section 3(1)(e) of the FIPPA states that:

3 (1) This Act applies to all records in the custody or under the control of a public body, including court administration records, but does not apply to the following:

. . . .

(e) a record containing teaching materials or research information of employees of a post-secondary educational body.

It was brought to the Committee’s attention that judicial review has interpreted section 3(1)(e) to exclude the teaching materials and research information of post-secondary employees from the application of the FIPPA.

The Committee agreed that the exclusion of teaching materials and research information as records under the FIPPA was likely an oversight in the drafting of the Act, and that these materials should be considered records under the FIPPA for the purpose of protecting personal information, while being exempt from the Act’s disclosure provisions.

Recommendation #2:

That the FIPPA be amended to apply its privacy provisions to the teaching materials and research information of employees of post-secondary educational bodies, while maintaining their exemption from the access provisions of the Act.

Time limit for responding   section 7

Section 7 of the FIPPA requires public bodies to respond to a request for information by 30 days after it is received, unless, under section 10, the time limit is extended, or, under section 11, the request or record requested must be transferred to another public body.

The Committee heard from many witnesses that public bodies frequently exceed the 30-day time limit before completing information requests. Witnesses recommended that the Information and Privacy Commissioner be empowered to impose and enforce penalties for time line violations, possibly through periodic audits into the numbers of time infractions and time extensions made by public bodies.

In general, the Committee agreed that all public bodies should be encouraged to complete information requests in a timely manner, using the statutory time requirements only as outside limits. Members also discussed the possibility of providing incentives to public bodies for complying with timelines as required by section 7. The Committee agreed that waiving fees for requests that are not fulfilled within the prescribed time would be an appropriate incentive.

Recommendation #3:

That public bodies comply with time lines under section 7 of the Act, and that in the event of non-compliance with time lines, fees for requests that are not fulfilled within the prescribed time be waived.

Transferring a request   section 11

Under section 11(1), public bodies are allowed 10 days to transfer a request or a record requested to another public body if the record requested was produced by or in the custody or control of that body, or that body was the first to obtain the record.

Some public bodies told the Committee that it is difficult to complete transfers in the 10 days allowed. They asked that the Committee consider amending the Act to extend the time period for transferring requests or records.

The Committee accepted witnesses’ recommendation to extend to 20 days the current 10 days public bodies are allowed for transfers. This change is recommended in light of the complexity and volume of requests that public bodies receive and the shortage of resources available to public bodies for administering the Act. The 30-day time limit for responding to requests should be retained.

Recommendation #4:

That section 11(1) be amended to allow public bodies 20 days for transferring an information request.

Third-party business information   section 21

Section 21(1)(a)(ii) of the FIPPA requires public bodies to refuse to disclose information that would reveal the commercial, financial, labour relations, scientific or technical information of a third party.

Witnesses recommended broadening the protection of third party business information under section 21(1)(a)(ii) to include the commercial, financial, labour relations, scientific or technical information about a third party.

The Committee agreed to recommend broadening section 21(1)(a)(ii).

Recommendation #5:

That section 21(1)(a)(ii) be amended to read "commercial, financial, labour relations, scientific or technical information of or about a third party."

Archived information   section 36

"Open government must have an historical dimension; otherwise we are captive of the present with no way to see, through the information in inactive public records how we arrived at our current state and how we might improve upon it. An open government must be accountable for its actions, not just to its present citizens, but over the full course of time and in the widest possible sense."

Archives Association of British Columbia

Researchers made numerous submissions to the Committee expressing their view that the FIPPA has impaired researchers’ ability to access archival information. All of these witnesses recommended that material that was archived and open to researchers before the FIPPA came into effect should be exempt from the provisions of the Act. Being unable to access records that were previously open has meant that researchers cannot finish research that they started before the implementation of the Act, and makes it impossible for researchers to verify the work of earlier historians.

Researchers also recommended that the time periods during which specific types of archived information are considered private be substantially reduced.

The Committee agreed that it was probably not intended that the FIPPA withhold archived information that had previously been open to researchers, and agreed that this has presented material problems for researchers in their attempts to continue research initiated prior to the FIPPA. For these reasons, the Committee strongly recommends that archived documents that were open before the enactment of the FIPPA be exempt from its provisions.

Section 36 of the FIPPA allows the B.C. Archives and Records Service, or the archives of a public body, to disclose personal information for archival or historical purposes if the disclosure complies with sections 22 or 35, or (c) the information is about someone who has been dead for 20 years or more, or (d) the information is in a record that has been in existence for 100 or more years.

Section 21(3)(b) of the FIPPA allows for the disclosure of third-party business information that has been in existence for 50 or more years and in the custody or control of the B.C. Archives and Records Service or the archives of a public body.

The Committee, in considering researchers’ proposal to reduce the time restriction in 21(3)(b), concluded that providing a time line for disclosure eliminates the need for archivists to review all information for exemptions. The Committee agreed, however, that the witnesses’ suggestion in this area is consistent with the Committee’s commitment to openness. Members discussed the possibility of lowering the current 50 years to 20 while adding a harms test to protect information that might have relevance to business interests even after 20 years, but concluded that this would disproportionately increase the workload of archives. It was agreed that the Committee would recommend that government consider, in consultation with public bodies, reducing the 50-year time limit in section 21(3)(b).

Committee members determined that removing the time restriction on the personal information of deceased persons in section 36(c), as suggested by witnesses, would offend the privacy protection standards of the Act. It was agreed that requiring an individual’s personal information to remain closed until 20 years after death guarantees that any disclosure under section 36(c) is for genuine historical research, rather than journalistic reporting. The Committee does support witnesses’ recommendation that section 36(d) should be amended to reduce the general restriction on personal information to 70 years. The Committee feels that 70 years does provide adequate historical distance as protection for personal information in general.

Recommendation #6:

That archived documents that were open before the enactment of the FIPPA be exempt from its provisions.

Recommendation #7:

That government consider, in consultation with public bodies, reducing the 50-year time limit on the disclosure of third-party business information in section 21(3)(b).

Recommendation #8:

That section 36(d) of the FIPPA be amended to reduce the general restriction on archived personal information from 100 to 70 years.

Recommendation #9:

That section 21(3)(b) reduce the length of time an archived third-party business record must have been in existence before it may be disclosed by the archives.

General powers of the Information and Privacy Commissioner   section 42

The FIPPA, in section 42(1)(f), currently allows the Information and Privacy Commissioner to "comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies."

Some witnesses recommended amending section 42 to clarify that the commissioner is also able to comment on existing programs. Some witnesses also suggested amending the FIPPA to require public bodies to consult with the commissioner before implementing any programs that will have implications for privacy or access to information, which would give the commissioner an opportunity to ensure that all proposed programs are consistent with the FIPPA.

It was suggested by some witnesses that allowing the commissioner to "pre-approve" government legislation creates a potential perception of bias in favour of government.

The Committee agreed that the independence and integrity of the Office of the Information and Privacy Commissioner could in some cases be undermined should the commissioner provide advice to government on the effects of draft legislation or regulations on freedom of information and/or the protection of privacy. Nonetheless, because the commissioner is a valuable information resource, the Committee agreed that the commissioner should be trusted to use his or her discretion in deciding, on a case-by-case basis, when it is appropriate to advise on proposed government policy. The Committee concluded that the Act does not require an amendment governing the commissioner’s ability to offer advice.

The Committee agreed that the current wording of section 42(1)(f) could prevent the commissioner from commenting on existing programs, although this was not likely the intent of the section. The Committee therefore agreed that section 42(1)(f) should clarify that it is within the commissioner’s power to comment on the privacy and access implications of existing legislative schemes or programs.

The Committee also considered the suggestion that the FIPPA be amended to require public bodies to consult with the commissioner prior to implementing policies or programs that would affect access and privacy. Committee members determined that a legislative requirement for public bodies to consult with the commissioner on policies or programs could infringe parliamentary privilege or cabinet privilege. Also, in view of the commissioner’s existing power under section 42(1)(f), and the Committee’s recommendation to expand that power, the Committee agreed that a legislative requirement to consult would be unnecessary. Given that public bodies’ programs can be assessed by the commissioner once in place, it would be prudent for public bodies to consult with the commissioner on proposed policies and programs. However, the Committee wishes to express its strong support in principle for the commissioner’s role in assisting public bodies to understand the spirit of the Act in developing legislation, policies and programs, and encouraging public bodies to make consultation part of their regular policy development practice.

Recommendation #10:

That section 42(1)(f) of the FIPPA be amended to enable the Information and Privacy Commissioner to comment on the implications for access to information or for protection of privacy of existing legislative schemes or programs of public bodies.

Recommendation #11:

That public bodies incorporate consultation with the Information and Privacy Commissioner in their policy development processes.

Delegation of powers by the Information and Privacy Commissioner   section 49

Under section 49(1), the Information and Privacy Commissioner is prohibited from delegating his/her order-making powers. Section 56 requires the commissioner to conduct an inquiry into matters not referred to mediation or settled by mediation under section 55. The Committee heard from several witnesses that the inability to delegate the order-making power under section 49(1), and the right of inquiry provided under section 56, cause the commissioner to spend much time making orders on matters that have become commonplace. Witnesses suggested that section 49(1) be amended to allow the commissioner to delegate routine inquiries to staff members, freeing the commissioner to focus on inquiries into substantive matters, research and advice. Witnesses also recommended changing section 56 to enable the commissioner to refuse to hold an inquiry under particular circumstances.

After considering witnesses’ comments, the Committee agreed that for reasons of administrative efficiency, the FIPPA should be amended to enable the commissioner to focus his/her order-making on building the body of casework under the Act. Also to that end, members of the Committee emphasize that the commissioner must continue to make orders on investigations concerning substantive issues. The Committee agreed that the Information and Privacy Commissioner’s delegation powers should be enhanced to allow him/her to delegate the order-making power in matters of a procedural or administrative nature. The Committee was also persuaded that the commissioner should have the power to refuse inquiries, at his/her discretion. Members of the Committee believe that providing a discretionary power to the commissioner on the matter of holding inquiries would safely balance the principles of the Act with the need for administrative practicality.

Recommendation #12:

That the FIPPA be amended in sections 49(1) and sections 56 to enable the Information and Privacy Commissioner to delegate the order-making power and to refuse to hold inquiries under particular circumstances.

Fee waivers   section 75

Section 75(5) outlines the conditions the head of a public body must consider in determining whether or not to waive fees for an applicant. The two terms are (a) if the applicant cannot afford the payment or if for any other reason it is fair to excuse payment, or (b) the record relates to a matter of public interest.

Some witnesses claimed that public bodies sometimes delay replies to fee waiver requests for months, and suggested that there should be some requirement for public bodies to respond promptly. These witnesses recommended that public bodies be given a 30-day time line for responding to requests for fee waivers under section 75(5).

The Committee also agreed that, in principle, decisions on fee waivers under section 75(5) should be subject to a reasonable time limit. It was felt that unreasonable delays in responding to requests for fee waivers were, in effect, obstructions to the access provisions of the Act. The Committee expressed some concern, however, that public bodies not limit the number of requests they deem in the public interest if a time limit is imposed. The Committee considered recommending that decisions on fee waivers be made within 30, 45 or 60 days, but agreed that time limits should established in consultation with public bodies.

Recommendation #13:

That, in consultation with public bodies, section 75(5) be amended to include a time line for responding to requests for fee waivers.

Fee estimates   section 75

Section 75 allows public bodies to charge an applicant fees for locating, retrieving and producing the record, preparing the record for disclosure, shipping and handling, and providing a copy of the record.

The FIPPA Policy and Procedures Manual instructs information and privacy administrators to exclude the time that elapses while waiting for a requester to accept a fee estimate from the calculation of response time under section 7.

Some witnesses recommended that Act should be amended to authorise the existing policy by stating that public bodies may "stop the clock" on the 30-day response time limit while waiting for an applicant to decide whether they are willing to pay the estimated fees.

The Committee supports witnesses’ recommendation on this issue.

Recommendation #14:

That public bodies should be required to provide a fee estimate to a requester before retrieving information, and that public bodies should not begin calculating the time line for completing an access request until the requester has approved and agreed to pay the estimated fees.

Next review of the FIPPA   section 80

Section 80 of the FIPPA required the Legislative Assembly to begin a review of the Act by October 4, 1997 – four years after its enactment.

The Committee considered the appropriate timeframe for the next review of the Act, and agreed that it should coincide with the selection of the Information and Privacy Commissioner in six years. The members of the Special Committee to Review the Freedom of Information and Protection of Privacy Act also formed the Special Committee to Select an Information and Privacy Commissioner, which began its selection process in April 1999. Committee members found it beneficial to converse with both outgoing and incoming commissioners on the review of the Act.

Recommendation #15:

That section 80 of the Act should be amended to read that the next review of the FIPPA will take place with the selection of a new Information and Privacy Commission in six years.

Adoption   schedule 1 definitions

"The committee in my opinion needs to give serious consideration to how the needs of adoptees can best be met with the FIPPA framework. Adoption is a very special challenge for the FIPPA process, being in many ways an exception to many of its primary principles. The pendulum needs to swing much further in favour of the adoptee if we are to provide adoptees with the kind of information that meets their developmental, social and medical needs. Freedom of information and privacy protection need to function so that both apply to the members of the adoption circle."

Michael F. Whitfield, MD

The definition of "personal information" under the FIPPA includes: (a) name address or telephone number; (e) fingerprints, blood type or inheritable characteristics; and (f) information about the individual’s health care history, including a physical or mental disability.

Part 5 of the new Adoption Act balances the rights of adopted persons to their information with the rights of other parties to privacy and confidentiality. It allows an adult adoptee to obtain his or her birth name, adoption order and birth parents’ names. Birth parents can also apply to learn their child’s after-adoption name. These provisions are subject to a disclosure veto, which either party can place to prohibit the release of their identifying information.

The Adoption Act also responds to society’s desire for greater openness in adoption by phasing-out the non-disclosure veto for adoptions occurring under the new Act. Birth and adopting parents are now informed at the beginning of the adoption process that identifying information may be obtained once the adopted child is 19 years of age.

Witnesses’ comments on adoption challenge the Information and Privacy Commissioner’s rulings that adoptive children are third parties in relation to their birth parents’ personal information. They claim that the focus of privacy legislation on protecting against unreasonable harm to the third party, which is based on an individualistic concept of privacy, is inadequate for understanding rights to adoption information, because the relationship between birth parents and adoptees is not clearly a first-third party relationship.

Witnesses suggested that the intent of the Adoption Act in Part 5, "Openness and Disclosure", be incorporated into the FIPPA to guarantee the information rights of adoptees and those people conceived through reproductive technologies. They also suggested that the definition of "personal information" in the FIPPA be amended to include fax numbers, e-mail addresses and DNA information. Witnesses also suggested that a new definition be included in the FIPPA for "second party" to indicate a person whose genetic and medical information is in common with the first party.

The Committee considered witnesses’ recommendation that the intent of Part 5 of the Adoption Act be included in the FIPPA. Having determined that section 74(1) of the Adoption Act stipulates that section 72(2) and 73 apply despite any provision in the FIPPA, and having in other cases determined that legislation should provide guidance on its relationship to the FIPPA, the Committee agreed that no change was needed in the FIPPA.

The Committee agreed to recommend that fax numbers, e-mail addresses and DNA be added to the definition of "personal information".

After having debated the proposal for a new definition of "second party", the Committee agreed that any change of that nature belongs properly in the Adoption Act, which the Committee believes is the best instrument for protecting the special information and privacy rights of parties to adoption.

Recommendation #16:

That the definition of "personal information" in Schedule 1 of the FIPPA be amended to include fax numbers and e-mail addresses under subsection (a) and DNA under subsection (e).

New Officers of the Legislature   schedules 1 & 2

In its section by section review of the Act, the Committee noted that the definition of "Officer of the Legislature" in Schedule 1 and the list of offices in Schedule 2 does not include the Police Complaints Commissioner and the Child, Youth and Family Advocate, which were created after the FIPPA was drafted. The Committee agreed that both schedules should be updated to include these Officers of the Legislature and their offices.

Recommendation #17:

The Committee recommends that the definition of "Officer of the Legislature" in section 1 and Schedule 2 be amended to include the Police Complaints Commissioner and the Child, Youth and Family Advocate. The Committee also recommends that any Officers of the Legislature created subsequent to this review be added to the definition and Schedule 2.

New public bodies   schedules 2 & 3

The Committee noted that some new public bodies have been established since the FIPPA came into effect, such as the College of Midwives and Forest Renewal BC. In the interest of consistency, the Committee agreed that public bodies created since the enactment of the FIPPA should be brought under the Act by amending Schedules 2 or 3 to include them. It was acknowledged in the Committee’s discussion that some new public bodies, like Forest Renewal BC, have implemented the access and privacy provisions of the FIPPA in their organizations even without having been brought under the Act.

Recommendation #18:

Recommendation: That public bodies and local public bodies should be brought into Schedules 2 or 3 of the FIPPA, respectively, as they are established, and that those created since the inception of the FIPPA be added to Schedule 2 or 3 immediately.

Recommendations
for No Change

Fees   section 7

"Once the fundamental importance of access to information to the functioning of our democratic government is accepted, the notion of charging people to exercise their right of access can be seen to be fatally flawed."

Canadian Bar Association, B.C. Branch

"While the act confers information rights, it must be recognized that the resources available for servicing those rights are limited. It is important that applicants bear some responsibility in exercising their rights. One aim of this submission is to contain the cost of administering the act so that resources can be redirected to providing other services to the public."

Government of British Columbia Corporate Submission Project

The Committee received more comments on fees for information requests than on any other issue arising out of the FIPPA. Witnesses’ suggestions ranged from increasing fees to allow public bodies to fully recover the costs of administering requests for non-personal information, to maintaining the current fee schedule, to eliminating fees for accessing information.

Some public bodies recommended that the FIPPA allow fees to be charged for reviewing records prior to severing, which is an extremely time-consuming process. Some recommended that the Act allow fees to be charged after one hour of search time, instead of the 3 hours currently provided at no charge. Local public bodies informed the Committee that administering the FIPPA has created a considerable financial burden, particularly because, unlike government ministries, local public bodies were not provided with funding to manage the transition from the pre-FIPPA to post-FIPPA environment.

Several submissions noted that the debate around the costs of administering freedom of information legislation should generate questions about the value of open government and an informed electorate. If it is agreed that access to information is a right adhering to citizens, and that it enhances democratic governance by maintaining accountability, integrity and efficiency in the work of public bodies, the cost of freedom of information should be considered a justifiable expense. Many commented that current fee levels are high enough to minimize frivolous requests, but are still reasonable for responsible requesters.

The Committee examined the full range of witnesses’ comments on fees. The Committee did acknowledge witnesses’ comments that having to provide personal information at no charge may cause hardship to public bodies. Members noted that this is especially true for some local public bodies since their budgets vary widely and demands for personal information fluctuate, which makes it difficult to predict information and privacy expenditures. Mr. Janssen explained, by way of example, that in 1982, when MacMillan Bloedel laid-off more than two-thirds of its workforce in the Alberni area, local schools were flooded with requests for school records by forest workers wanting to apply for new skills training programs. While acknowledging the financial difficulties such circumstances may impose on local public bodies, the Committee strongly committed to the principle of free access to one’s personal information.

On the basis of the Committee’s commitment to maintaining the accessibility of information, members agree that the principle of freedom of information is one that the public sector must uphold, even at some financial cost. The Committee believes that the existing fee structure balances the interests of public bodies and individuals requesting personal information; accordingly, it was decided that there should be no change to the current fee schedule.

In response to public bodies’ general concerns around the cost of administering the Act, the Committee encourages public bodies to practice routine release as their primary means of disseminating information, with the freedom of information provisions of the FIPPA reserved for information that is not clearly admissible for general release.

Records of in-camera meetings   section 12.1

Section 12.1 of the FIPPA allows local public bodies to refuse to disclose information that would reveal a draft legal instrument, a private bill or the substance of deliberations of an authorized in-camera meeting. In-camera meetings for the discussion of particular issues must be authorized by an Act or a regulation under the FIPPA.

Many witnesses were dissatisfied with what they considered local public bodies’ frequent use of unauthorized in-camera meetings and their reluctance to disclose documents presented at closed meetings.

It was proposed that the Act be amended to include guidelines specifying the terms of release of information from in-camera proceedings and a statement defining the public’s rights of access to the meetings of public bodies. Other suggestions were that the Act be amended to establish that in-camera meetings can only be used to discuss the three traditional matters reserved for private discussion at the municipal level: land acquisition, labour relations and legal matters.

The Committee observed that at the time these issues were raised, government had not yet introduced the proposed amendments to the Municipal Act in Bill 88, which include an amendment to facilitate public access to the proceedings of municipal council meetings. It was agreed that the issues of access and in-camera meetings have been adequately dealt with by Bill 88, and that the Committee need not make any recommendation.

Self-governing bodies and audit working papers   section 13

"Where it can be demonstrated that disclosure of information has the potential to harm the effectiveness of any investigative techniques and procedures, the protection of section 15(1)(c) should apply. To do otherwise would be to render meaningless and inapplicable the provisions of section 15(1)(c) to most, if not all of the law enforcement procedures and techniques of the College of Physicians and Surgeons and other self-governing bodies. This would appear to discriminate against self-governing bodies on the basis of the nature of the procedures and techniques utilized."

College of Physicians and Surgeons of British Columbia

Section 13 of the FIPPA allows public bodies to refuse to disclose information that would reveal policy advice, recommendations or draft regulations.

Several self-governing bodies noted that the FIPPA is primarily oriented towards government practices. They suggested that the Act be amended to accommodate the practices of self-governing regulatory bodies. Their recommendations centred on the privacy said to be required by professional governing bodies to fulfil their functions of establishing standards for education, professional responsibility and the competence of their members and membership applicants.

Self-governing bodies consistently expressed concern that the potential disclosure of audit working papers would jeopardize their ability to obtain the third-party opinions necessary to much of their peer review work. If third parties are not guaranteed that their opinions will be protected from disclosure, they may be reluctant to provide full and truthful information. Consequently, a large number of these witnesses recommended that section 13 be amended to permit a public body to withhold audit working papers from disclosure.

Members concluded that self-governing bodies were not able to demonstrate that third party participation in peer review processes has in fact been adversely affected due to section 13. On that basis, the Committee determined that there is not enough evidence to justify amending the Act as requested by self-governing bodies.

The exception for matters of solicitor-client privilege   section 14

Section 14 of the FIPPA gives public bodies a discretionary power to refuse to disclose information that is subject to solicitor-client privilege. The Act does not specify a time limit to the exemption.

Witnesses commented that while the commissioner’s interpretations of this section attempt to narrow the concept of solicitor-client privilege, his decisions have twice been overturned through judicial review. It was suggested that section 14 be amended to clarify that solicitor-client privilege is to be interpreted narrowly.

Committee members considered the recommendation in cases of solicitor-client privilege where the government, in making a public policy decisions, receives legal advice. The Committee noted that courts have interpreted the solicitor-client exemption of the FIPPA extremely broadly. Members debated the rationale for keeping such documents permanently exempt from disclosure. It was also considered that solicitor-client privilege, in terms of legal advice to public bodies in their policy-making role, was not intended to be protected to the same degree as solicitor-client privilege in law enforcement matters by the FIPPA. It was noted that solicitor-client privilege can be waived, and that if government is the client in cases of legal advice, government has the option of waiving its right to exemption under the FIPPA.

The Committee agreed to recommend that this issue should continue to be examined, with a view to public bodies’ gradual adoption of the latter practice. The Committee also agreed that it is in keeping with the spirit of the Act that documents containing legal advice on policy issues be subject to severing procedures.

Information to be disclosed if in the public interest   section 25

Public bodies are required under section 25(1)(b) to release information to the public, an affected group or individual, if its disclosure is "clearly in the public interest."

Some witnesses told the Committee that they would like guidelines on what constitutes "public interest". Currently the only guidance is provided in Commissioner’s Order #55-1995, which states that the decision as to what information is in the public interest rests with the public body holding the information. It was suggested that clarification would increase the efficiency of information requests by reducing the number of requests for fee waivers under section 75(5)(b) and the number of appeals.

The Committee agreed that the Office of the Information and Privacy Commissioner should issue guidelines in response to witnesses’ recommendations that the meaning of "public interest" in section 25 be clarified, rather than the Committee recommending an amendment to this section of the FIPPA. The Committee considered that an appropriate emphasis on the basic principle of openness would lead to enhanced disclosure under section 25.

Suggestion: That the Office of the Information and Privacy Commissioner issue guidelines to clarify the meaning and intent of "public interest" in section 25(1)(b).

Mandatory release of information   section 25

Section 25(1)(a) requires public bodies to release information to the public, an affected group or individual, "about a risk of significant harm to the environment or to the health or safety of the public or a group of people." Under section 33(p), public bodies are given discretionary authority to disclose personal information if "the head of the public body determines that compelling circumstances exist that affect anyone’s health or safety and if notice of disclosure is mailed to the last known address of the individual the information is about."

A number of witnesses discussed the perceived conflict between the obligation to inform imposed by the medical profession and the discretionary option to inform guiding the public bodies governed by the FIPPA. These witnesses recommended that the Act be amended to recognise that physicians working in a contract relationship with public bodies sometimes have contrasting obligations imposed by the governing bodies of their profession, including the BC Medical Association. They claim that the obligation and discretion provided to public bodies by sections 25 and 33(p) are potentially dangerous to those issuing warnings and those being warned. These witnesses submit that the release of information about individuals at risk of harm should be considered in the same risk assessment context as the release of information to medical patients in general.

One proposal is to add a new section to the FIPPA that reads:

Despite any other provision of this Act, a health care practitioner must, without delay:

1. warn caregivers, including family members and other affected persons, about possible harm to their health, safety or well-being when information arises from the health practitioner’s care or treatment of a patient that indicates the potential for such harm;
2. warn caregivers, including family members and other affected persons, about possible harm to a patient’s health, safety or well-being (including high-risk behaviour and suicidal tendencies) when information arises from the health practitioner’s care or treatment of a patient that indicates the potential for such harm.

Notice must also be given to the data subject, but a health care practitioner, upon being satisfied that giving such notice would harm the health, safety and well-being or the proper care and treatment of the data subject, or upon being satisfied that giving such notice may result in harm to others, may waive the requirement to notify the data subject;

3. a health care practitioner may receive for consideration and for appropriate action, warning information provided by caregivers, including family members, who wish to report signs of significant deterioration and potential harm in the condition of a person with a serious mental illness. Appropriate action would include calling in the patient for assessment.

The Committee agreed to leave questions of client-provider privilege and confidentiality -- in medical, psychological or legal services -- with self-governing bodies. It was recognized that establishing an obligation for health care providers to disclose client information if it would reduce the risk of harm or serve the public interest would raise questions surrounding the enforcement of that obligation and may impose a civil liability for failure to comply with that obligation. Therefore the Committee agreed that self-governing bodies were best able to determine questions of client-provider privilege and exceptions in the cases of risk of significant harm or cases of public interest.

The Committee recommends that section 25 remain unchanged, but would like to acknowledge that witnesses’ recommendations concerning the duty to inform and the health care professions outline a serious problem; one that the Committee thoughtfully deliberated in relation to the Act.

How personal information may be collected   section 27

"In health care, it is often necessary to obtain information indirectly on behalf of those who are unconscious, mentally ill, or otherwise unable to provide information. This provision, which prohibits even appropriate indirect collection, must often be ignored in emergency rooms, maternity wards and psychiatric settings as it is impossible to provide care without the information."

British Columbia Health Association

"As primary caregivers, the families of people with serious mental illness find themselves on the front lines of the care team. Whether it is officially recognized or not, this vital family role is demanded by B.C. Ministry of Health initiatives and by medical best practices. Family and health practitioners need each other’s help in recognizing and treating serious mental illness. Teamwork and family support require the sharing of appropriate medical information. Because of real and perceived obstacles in the FIPPA, key medical information sharing is impaired. The collection of collateral medical information from families is often blocked. Those communications links are essential. It is vital to remove obstacles in the FIPPA."

B.C. Schizophrenia Society

Section 27 of the FIPPA requires that, subject to enumerated exceptions, public bodies collect personal information only from the individual concerned. It does not allow health care professionals to collect patient information from anyone but the patient.

Representatives of health professionals petitioned the Committee to amend section 27 to include an exception regarding health information. They believe that the legislation must establish criteria for the use or sharing of information, originally collected for other purposes, that becomes medically relevant in justifiable circumstances. These witnesses recommended that section 27 include a subsection enabling health workers to collect personal information from third parties when a patient is unable to provide the information and his or her health and safety would be at risk without the information. One submission suggested that section 27(c) could be amended to read:

Collateral information may be collected from third parties by a health care practitioner where the practitioner is satisfied that,

1. the information is necessary for the proper care and treatment of a patient under his or her care, and
2. adequate reliable information cannot be collected directly from the patient.

The Committee agreed that section 27 of the FIPPA has a significant impact on health care providers. Committee members noted that the issue is complex -- involving health care statutes, power of attorney agreements with physicians, guardianships and trusteeships -- and therefore might best be dealt with under section 27(1)(a)(iii), which allows the provisions of other enactments to override the collection requirements of the FIPPA.

Members recommended that government conduct further analysis into how well section 27 offsets patients’ privacy rights with health care providers’ information requirements, and whether an amendment to the FIPPA or any other statute is required to create an effective balance between the two.

Disregarding repetitious or systematic requests   section 43

Section 43 of the FIPPA reads:

If the head of a public body asks, the commissioner may authorize the public body to disregard requests under section 5 that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of a public body.

Some witnesses requested that public bodies’ powers to disregard troublesome requests be strengthened. Witnesses’ submissions debate the suggestion that the words "frivolous or vexatious" are preferable to the current "repetitious" and "systematic". Some argue that the latter has proven too restrictive to be of any help to public bodies. Others claim that the former is too subjective to allow for fair adjudication.

The Committee observed that the current test -- repetitious and systematic -- evaluates the effect of a request on a public body. The proposed test -- frivolous or vexatious -- would require public bodies to evaluate the intent of the request. It was noted that inquiring into intent would debase the principle of the right to information embodied by the FIPPA. On that basis, the Committee agreed that section 43 should remain unchanged.

Fee waivers for information pertaining to aboriginal land claims   section 75

Some witnesses asked the Committee to consider creating a general class of fee exemptions under section 75(5) for information pertaining to the settlement of aboriginal land claims. These witnesses explained that fees are prohibitive to aboriginal groups, and that they therefore prejudice the equality of the claims process and hinder the resolution of land claims. They also submitted that the Delgamuuk’w decision acknowledged the settlement of land claims as being in the public interest, and that the Delgamuuk’w decision obliges governments to bargain land claims in good faith, which could include acknowledging that first nations groups lack resources because of outstanding and unresolved land claims.

The Committee does not recommend amending the FIPPA to include a specific class of fee waivers for information requests pertaining to aboriginal land claims. The Committee recognized the strength of witnesses’ recommendations concerning the cost of research for aboriginal land claims, but determined that to establish specific categories of information that would be exempt from fees would lead many public interest groups to request exempt status. The Committee agreed that the established process for determining fee waivers should continue to apply to information requests pertaining to aboriginal land claims, although it would like to express its strong support for the principle that land claims processes not be impeded by unreasonable access to information fees.

Archives legislation

The British Columbia Archives and Records Service has recently become a division within the Information, Science and Technology Agency (ISTA). It was suggested by some witnesses that this compromises the archive’s ability to function as an autonomous agency and Act as an archival auditor for government accountability.

A number of witnesses recommend that the province enact legislation governing the functioning of the provincial archives. All other provinces have such an Act, which one witness argues is a natural companion to freedom of information and protection of privacy legislation. Archives legislation ensures that government and all public bodies know their obligation to preserve and make accessible permanently valuable, inactive records, which enhances open government by adding a historical dimension to government actions. They also strengthen the requirement for governments and public bodies to manage records effectively and efficiently.

The Committee agreed that the proposal for an archives act and the Document Disposal Act are not within the mandate of the Committee, as neither come under the purview of the FIPPA. However, members noted that witnesses made salient and competent arguments concerning the retention of information, and as public documents, witnesses’ submissions are available to government should government decide to consider them.

Accountability provisions and audits of public bodies

There was concern from some witnesses that public bodies are reluctant to comply with the FIPPA and engage in practices intended to obstruct the principle of openness embodied by the Act.

Many submissions recommended that clear and enforceable performance requirements in the area of data provision be instituted for public servants. Some suggested that the commissioner be given an audit function to regularly review the responses of public bodies to information requests in order to evaluate the quality of their responses.

The Committee agreed that the commissioner currently has broad and adequate audit powers under the Act. The degree to which the commissioner exercises those powers could be evaluated in a performance review; however, Committee members concurred that that is not part of the Committee’s mandate.

Destruction of documents

Bill C-208, the federal legislation that provides for penalties for the deliberate destruction of documents, has been introduced. Section 86 of Alberta’s Freedom of Information and Protection of Privacy Act stipulates that a person who discloses personal information, destroys records for the purpose of blocking a freedom of information request, obstructs or misleads the commissioner, or disobeys one of his or her orders, may be fined up to $10,000.

Some witnesses suggested that the Committee recommend that a similar section be incorporated into the FIPPA to penalize any public body that deliberately destroys documents against the authority of the FIPPA and the Document Disposal Act.

While members noted that for certain extreme cases, the Criminal Code governs the deliberate destruction of documents, and discussed strengthening the commissioner’s powers to deal with instances that are not so grievous as to fall under the Criminal Code, the Committee came to no conclusion on penalties for unauthorized document destruction.

Observations:
Administration of the Act

Records management

"Good records management provides benefits to an organization in terms of general efficiency over and above a reduction in the administrative costs of obligations under the act and will assist public bodies to respond to requests for information more quickly."

British Columbia Civil Liberties Association

A large number of witnesses suggested that public bodies could reduce the costs associated with administering the FIPPA by adopting effective records management practices.

Due to the large number of submissions making this point, Committee members felt it merited drawing public bodies’ attention to the public’s view that their records management practices need improvement in order to reduce the costs of administering the FIPPA and allow more efficient access to records.

Training for information and privacy administrators

Witnesses suggesting improvements to records management practices also requested that training for information and privacy administrators be improved. It was noted that a large number of administrators were trained in the use of the Act and the records management process of government at the enactment of the FIPPA, but that specialized training has not taken place since that time.

The Committee observed that the Office of the Information and Privacy Commissioner does conduct training, by, for example, holding regular seminars on freedom of information and privacy topics for information and privacy administrators. However, the Committee agreed to present the public’s comments on information management and training to those bodies responsible for designing the FIPPA’s administrative policies and procedures with the suggestion that policies and procedures for regular training may require review. The Committee would also like to suggest that a public information brochure be developed to assist the public in placing effective freedom of information requests under the Act.

Observations:
the Current Context of Access and Privacy

Application of the FIPPA to the Legislative Assembly

It was suggested by a few witnesses that Vote 1, or the operations of the Legislative Assembly, should fall under the purview of the FIPPA. Some Committee members concurred that the complete exclusion of the Legislative Assembly from the disclosure provisions of the Act was arbitrary and unnecessary for protecting the principles of parliamentary privilege and executive or cabinet privilege. These members raised the issue of whether the administrative operations of the Legislative Assembly should be subject to disclosure under the FIPPA in order to ensure that the Legislative Assembly is accountable to taxpayers, and to thereby enhance public confidence in the institution.

Other Committee members put forward that vote 1 concerns not only elected representatives, but also the institution of parliament itself, and that the exclusion of the Legislative Assembly from the FIPPA is meant to underscore the independence of the Legislative Assembly from the operations of government. Former Speaker Ms. Joan Sawicki noted that "It is the Speaker that needs to ensure that the institution of parliament is sacrosanct, if you like, quite apart from governments and quite apart from any of us individually . . . . I wouldn’t like to see us promoting the blurring of those lines . . . ."

Committee members agreed that parliamentary and cabinet privilege are necessary to preserve the integrity of the parliamentary process. They also agreed that accountability should be ensured through appropriate checks and balances. However, the Committee made no recommendation on how questions of accountability should be addressed, whether through the FIPPA review or some other process.

Application of the FIPPA to Officers of the Legislature   section 3

Section 3(1)(c) of the FIPPA exempts from the application of the Act records that are created by or in the custody of an officer of the Legislature acting in his or her capacity as an officer of the Legislature. "Officer of the Legislature" is defined in section 1 as "the Auditor General, the Commissioner appointed under the Members’ Conflict of Interest Act, the Information and Privacy Commissioner, the Chief Electoral Officer or the Ombudsman". The Offices of the listed Officers of the Legislature are also included as public bodies in Schedule 2 of the Act. Under section 25, Officers of the Legislature can be required to disclose information deemed to be in the public interest.

As some witnesses suggested that the above sections are in conflict, the Committee discussed how they interrelate. It was determined that the exemption found in section 3(1)(c) is meant to exclude the operational records of Officers from the access provisions of the FIPPA, while the inclusion of Officers of the Legislature in Schedule 2 is intended to allow their administrative records to be accessed. Section 25 expresses the principle, found throughout the FIPPA, that there are some circumstances under which information that is normally exempt from disclosure processes should be made available to the public. The Committee finds, therefore, that the application of the FIPPA to Officers of the Legislature is consistent throughout the above-listed sections and with the general principles of the Act.

Protection of information and privacy administrators from adverse employment action

"A critical part of our democracy is the separation of powers between politicians, the bureaucracy and the judiciary: there must be no political pressures exerted on the FOI process, which is the bureaucracy’s responsibility."

Stanley Tromp

It was noted by some witnesses that the turnover rate for information and privacy administrators is very high in some public bodies. Some witnesses suggested that this could be ameliorated by amending the Act to protect information and privacy administrators from disciplinary actions arising from decisions they make in compliance with the Act. A provision to that effect is incorporated in the Alberta Freedom of Information and Protection of Privacy Act.

The Committee agreed that the province would benefit from general "whistle-blower" protection, and that the protection of information and privacy administrators could be covered under general legislation.

Suggestion: That a separate Act be considered for general "whistle-blower" protection.

Regulation of the private sector

Witnesses suggested that the B.C. government regulate privacy protection in the private sector, especially in light of the increased government contracting-out of services and information management.

The Advisory Council on Information Technology observed that new surveillance technologies affect individuals as consumers, but also as workers. New technologies such as drug-testing, keystroke-monitoring, video-surveillance and surveillance of e-mail in the workplace raise privacy concerns in addition to the general concerns over the privacy of employee records.

The Information and Privacy Commissioner also expressed concern that the privatization of government data management could reduce or eradicate privacy rights on government-held information. The commissioner believes that government should transfer privacy rights to the private sector as it transfers responsibility for government services, in a way similar to successor rights in the context of labour law.

Some witnesses had reservations about extending access to information and privacy protection regulation to the private sector, most notably, representatives of the credit and financial sectors. Some of their concerns were that regulation would impair the ability of credit reporting agencies to share information with law firms and collection agencies for the purpose of obtaining credit reports or collecting bills, impede the ability of businesses to obtain information required for credit checks and the extension of credit, and impede land title searches. These witnesses note that provincial credit reporting statutes already contain provisions for protecting personal information, which they believe are adequate measures.

Critics of the proposal to extend the regulation of access and privacy to the private sector recommend that a working committee be established among stakeholder groups, government and the Information and Privacy Commissioner to ensure that any new regulation or legislation accounts for their concerns.

Members noted that British Columbia is already late in considering the issue of extending freedom of information and protection of privacy legislation to the private sector, not least because the federal government is planning to pass legislation in this area that will impact the provincial private sectors. The federal Bill C-54, Personal Information Protection and Electronic Documents Act, would extend its private sector information and privacy regulations to the provincial private sectors three years after its enactment.^*

* Bill C-54 was introduced in October, 1998. It was left on the Order Paper when Parliament rose in June of this year. Indications are that the federal government will reintroduce access and privacy legislation for the private sector in the fall session of Parliament.

The Committee discussed the 6 recommendations of the Minister’s Advisory Council on Information Technology:

1. Immediately begin an educational program for businesses in B.C. about their roles and responsibilities to protect personal data, and urge them to adopt the CSA’s Model Code
2. Begin a programme of consumer education
3. Continue ongoing federal-provincial consultations in working on a legislative framework for privacy protection on the Internet
4. Develop legislation based on the CSA Model Code to cover the provincial private sector
5. Give powers of oversight, complaints resolution, investigation, auditing, public education and research to the B.C. Office of the Information and Privacy Commissioner
6. Analyze other legislative provisions in B.C. that govern the collection, use and disclosure of personal information -- particularly the 1979 Credit Report Act -- with a view to harmonizing public and private sector legislation with the CSA Model Code. Give oversight of harmonized legislation to the OIPCBC.

Members commented that the Office of the Information and Privacy Commissioner would have greatly expanded powers should the Committee accept recommendation 5; possibly too much power for a single monitoring agency. Yet the Committee determined that an expanded information and privacy agency might be necessary -- one with a mandate to enforce legislation for the private sector and to anticipate privacy issues that emerge with developments in information technologies. Members also observed that any monitoring body should provide for meaningful private sector participation.

The Committee debated whether the advisory council’s six recommendations are broad enough to deal with the range of privacy concerns around the private sector. Members agreed to accept the principles expressed in the six recommendations, but would like to record their reservations concerning recommendations 4 and 5. With respect to 4, the Committee suggests that B.C. legislation for the private sector could be based upon the CSA Model Code, but modified to fit British Columbia’s needs.

The Committee observed that government could undertake further study of the advisory council’s 6 points and other related considerations. It was agreed to report that the Committee considers the development of access and privacy regulations for the private sector an urgent issue, and strongly recommends that government take a proactive approach.

The Committee would like to express its view that the development of information and privacy legislation for the provincial private sector is an urgent issue that requires further examination by government.

Health information

Many witnesses were concerned that the confidentiality of personal health information is being eroded through technological developments that enable the networking of health databases and through the contracting-out of health information management.

The Committee noted that this is an expansive subject matter that needs to be addressed, but that both the federal and provincial governments currently have various bodies developing policy to manage access and privacy issues around personal health information. The Committee agreed, therefore, to recommend no changes to the FIPPA under this subject heading.

New information technologies

Some witnesses expressed concern that the FIPPA does not anticipate the kinds of privacy issues brought about by new information technologies, such as smart cards and biometric identification. They recommend that the Committee consider introducing adaptive features into the Act that will be capable of addressing incremental developments in information technology.

Committee members questioned whether the FIPPA requires amendment to confront issues arising from emergent information technologies, and therefore whether this subject falls within the Committee’s mandate. It was agreed that the Committee would limit its comments to an expression of support for government initiative in managing any threats to privacy and/or access that arise out of new information technologies.

Appendix I – Witness List

Appendix II – Written Submissions