1993 Legislative Session: 2nd Session, 35th Parliament
FIRST READING


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


HONOURABLE COLIN GABELMANN
ATTORNEY GENERAL

BILL 62 -- 1993

FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY
AMENDMENT ACT, 1993

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

1 Section 3 (1) of the Freedom of Information and Protection of Privacy Act, S.B.C. 1992, c. 61, is amended

(a) in paragraph (a) by adding "a record of a justice of the peace," after "Supreme Court,", and

(b) by adding the following paragraphs:

(d.1) a record containing teaching materials or research information of employees of a post-secondary educational body;

(h) a record of an elected official of a local public body that is not in the custody or control of the local public body.

2 Section 8 (2) is repealed and the following substituted:

(2) Despite subsection (1) (c) (i), the head of a public body may refuse in a response to confirm or deny the existence of

(a) a record containing information described in section 15 (information harmful to law enforcement), or

(b) a record containing personal information of a third party if disclosure of the existence of the information would be an unreasonable invasion of that party's personal privacy.

3 Section 10 (1) (c) is amended by striking out "(see sections 21 and 22)".

4 The following section is added:

Local public body confidences

12.1 (1) The head of a local public body may refuse to disclose to an applicant information that would reveal

(a) a draft of a resolution, bylaw or other legal instrument by which the local public body acts or a draft of a private Bill, or

(b) the substance of deliberations of a meeting of its elected officials or of its governing body or a committee of its governing body, if an Act or a regulation under this Act authorizes the holding of that meeting in the absence of the public.

(2) Subsection (1) does not apply if

(a) the draft of the resolution, bylaw, other legal instrument or private Bill or the subject matter of the deliberations has been considered in a meeting open to the public, or

(b) the information referred to in that subsection is in a record that has been in existence for 15 or more years.

5 Section 13 (1) is amended by striking out ", recommendations or draft regulations" and substituting "or recommendations".

6 Section 15 (1) is amended by adding the following paragraph:

(d.1) reveal criminal intelligence that has a reasonable connection with the detection, prevention or suppression of organized criminal activities or of serious and repetitive criminal activities, .

7 Section 15 (4) is repealed and the following substituted:

(4) The head of a public body must not refuse, after a police investigation is completed, to disclose under this section the reasons for a decision not to prosecute

(a) to a person who knew of and was significantly interested in the investigation, including a victim or a relative or friend of a victim, or

(b) to any other member of the public, if the fact of the investigation was made public.

8 Section 16 (2) and (3) is repealed and the following substituted:

(2) Moreover, the head of a public body must not disclose information referred to in subsection (1) without the consent of

(a) the Attorney General, for law enforcement information, or

(b) the Executive Council, for any other type of information.

(3) Subsection (1) does not apply to information that is in a record that has been in existence for 15 or more years unless the information is law enforcement information.

9 Section 17 is amended by adding the following subsection:

(1.1) The head of a public body may refuse to disclose under subsection (1) research information if the disclosure could reasonably be expected to deprive the researcher of priority of publication.

10 Section 20 (1) (a) is amended by striking out "published and".

11 Section 21 (3) is repealed and the following substituted:

(3) Subsections (1) and (2) do not apply if

(a) the third party consents to the disclosure, or

(b) the information is in a record that is in the custody or control of the British Columbia Archives and Records Service or the archives of a public body and that has been in existence for 50 or more years.

12 Section 22 is amended

(a) by repealing subsection (3) (d) and substituting the following:

(d) the personal information relates to employment, occupational or educational history, ,

(b) in subsection (3) (g) by adding "about the third party" after "personnel evaluations",

(c) in subsection (3) by adding the following paragraph:

(g.1) the disclosure could reasonably be expected to reveal that the third party supplied, in confidence, a personal recommendation or evaluation, character reference or personnel evaluation, ,

(d) in subsection (3) (i) by striking out "together with his or her address" and substituting ", address", and

(e) in subsection (4) (g) by striking out "section 5 of".

13 Section 23 (1) is repealed and the following substituted:

(1) If the head of a public body intends to give access to a record that the head has reason to believe contains information that might be excepted from disclosure under section 21 or 22, the head must give the third party a written notice under subsection (1.2).

(1.1) If the head of a public body does not intend to give access to a record that contains information excepted from disclosure under section 21 or 22, the head may give the third party a written notice under subsection (1.2).

(1.2) The notice must

(a) state that a request has been made by an applicant for access to a record containing information the disclosure of which may affect the interests or invade the personal privacy of the third party,

(b) describe the contents of the record, and

(c) state that, within 20 days after the notice is given, the third party may, in writing, consent to the disclosure or may make written representations to the public body explaining why the information should not be disclosed.

14 Section 24 (1) is amended by adding "or (1.1)" after "section 23 (1)".

15 Section 27 is amended

(a) in subsection (1) (c) (i) by adding "including an honorary degree, scholarship, prize or bursary," after "honour or award,", and

(b) in subsection (2) (c) by striking out "name,".

16 Section 34 (1) (b) is amended by striking out everything after "that uses" and substituting "or discloses the information."

17 Section 35 (a) is amended by adding "or the research purpose has been approved by the commissioner" after "identifiable form".

18 Section 52 (2) is amended by striking out "under section 23 of a request for access" and substituting "under section 24 of a decision to give access".

19 Section 62 (2) is amended by striking out "a request for access" and substituting "a decision to give access".

20 Section 66 is amended by adding the following subsection:

(3) This section does not apply to a local public body.

21 Section 69 is amended

(a) in subsection (2) (b) by striking out "and list",

(b) in subsection (2) by adding the following paragraph:

(b.1) a list of the records in the custody or under the control of the public body, ,

(c) in subsection (2) (d) by striking out "name,", and

(d) by adding the following subsections:

(4.1) Subsections (2) (b.1), (3) and (4) do not apply in respect of a local public body.

(4.2) The head of a local public body must make available for inspection and copying by the public a directory that lists the local public body's personal information banks and includes, for each bank, the information specified in subsection (3) (a) to (c).

22 Section 72 is amended

(a) in subsection (2) (b) by striking out "and list", and

(b) in subsection (2) (d) by striking out "name,".

23 Section 73 is repealed and the following substituted:

Protection of public body from legal suit

73 No action lies and no proceeding may be brought against the Crown, a public body, the head of a public body, an elected official of a public body or any person acting on behalf of or under the direction of the head of a public body for damages resulting from

(a) the disclosure, or failure to disclose, in good faith of all or part of a record under this Act or any consequences of that disclosure or failure to disclose, or

(b) the failure to give any notice required under this Act if reasonable care is taken to give the required notice.

24 Section 76 is amended

(a) in subsection (1) by striking out "and" at the end of paragraph (j) and by repealing paragraph (k) and substituting the following paragraphs:

(k) exempting any class of public body from a regulation made under this subsection,

(l) authorizing, for the purposes of section 12.1, a local public body to hold meetings of its elected officials, or of its governing body or a committee of the governing body, to consider specified matters in the absence of the public unless another Act

(i) expressly authorizes the local public body to hold meetings in the absence of the public, and

(ii) specifies the matters that may be discussed at those meetings,

(m) providing for the retention and disposal of records by a public body if the Document Disposal Act does not apply to the public body, and

(n) for any purpose contemplated by this Act. , and

(b) by adding the following subsections:

(3) The Lieutenant Governor in Council may amend, by regulation, Schedule 3 to add to it the name of the governing body of a profession or occupation if

(a) any member of that body is appointed by the Lieutenant Governor in Council, a minister or an Act, or

(b) the profession or occupation is governed under an Act.

(4) A regulation made under subsection (1) may provide differently for different classes of public bodies.

25 The following sections are added:

Power to make bylaws

76.1 A local public body, by bylaw or other legal instrument by which the local public body acts,

(a) must designate a person or group of persons as the head of the local public body for the purposes of this Act,

(b) may authorize any person to perform any duty or exercise any function under this Act of the person or group of persons designated as the head of the local public body, and

(c) may set any fees the local public body requires to be paid under section 75.

Right to disclose preserved

79.1 A public body that, before the date section 33 of this Act comes into force, disclosed names and addresses to the Tuberculous and Chest Disabled Veterans' Association may continue, despite that section, to disclose that information to the association if it undertakes not to use the information except for the purposes for which it used that information before that date.

26 Sections 78 (3) and 81 (2) are amended by striking out "one year" and substituting "2 years".

27 Schedule 1 is amended

(a) by adding the following definition:

"educational body" means

(a) a university as defined in the University Act,

(b) the University of Northern British Columbia,

(c) an institution as defined in the College and Institute Act,

(d) the British Columbia Institute of Technology continued under the Institute of Technology Act,

(e) the Open Learning Agency established under the Open Learning Agency Act, or

(f) a board as defined in the School Act; ,

(b) by repealing the definition of "head" and substituting the following:

"head", in relation to a public body, means

(a) if the public body is a ministry or office of the government of British Columbia, the member of the Executive Council who presides over it,

(b) if the public body is designated in, or added by regulation to, Schedule 2, the person designated as the head of that public body in that Schedule or by regulation, and

(c) in any other case, the person or group of persons designated under section 76.1 as the head of the public body; ,

(c) by adding the following definition:

"health care body" means

(a) a hospital as defined in section 1 of the Hospital Act,

(b) a Provincial auxiliary hospital established under the Hospital (Auxiliary) Act,

(c) a regional hospital district and a regional hospital district board under the Hospital District Act,

(d) a local board of health as defined in the Health Act,

(e) a metropolitan board of health established under the Health Act, or

(f) a Provincial mental health facility as defined in the Mental Health Act; ,

(d) in the definition of "judicial administration record" by adding "master or a justice of the peace," after "judge,", by striking out "and" at the end of paragraph (b), by adding ", and" at the end of paragraph (c) and by adding the following paragraph:

(d) a record of the judicial council of the Provincial Court; ,

(e) in the definition of "law enforcement" by striking out "and" at the end of paragraph (b) and substituting "or",

(f) by adding the following definitions:

"local government body" means

(a) a municipality as defined in the Municipal Act or the Resort Municipality of Whistler Act,

(b) the City of Vancouver,

(c) a regional district as defined in section 766 of the Municipal Act,

(d) an improvement district as defined in the Municipal Act,

(e) a local area as defined in the Local Services Act,

(f) a greater board as defined in section 943 of the Municipal Act or any incorporated board that provides similar services and is incorporated by letters patent,

(g) a board of variance established under section 961 of the Municipal Act or section 572 of the Vancouver Charter,

(h) the trust council, the executive committee, a local trust committee and the trust fund board, as these are defined in the Islands Trust Act,

(i) the Okanagan Basin Water Board,

(j) a water users' community as defined in the Water Act,

(k) the Okanagan-Kootenay Sterile Insect Release Board,

(l) a municipal police board established under section 23 of the Police Act,

(m) a library board as defined in the Library Act,

(n) any board, committee, commission, panel, agency or corporation that is created or owned by a body referred to in paragraphs (a) to (m) and all the members or officers of which are appointed or chosen by or under the authority of that body, or

(o) a board of cemetery trustees established under section 18 of the Cemetery and Funeral Services Act;

"local public body" means

(a) a local government body,

(b) a health care body,

(c) an educational body, or

(d) a governing body of a profession or occupation, if the governing body is designated in, or added by regulation to, Schedule 3;

"prosecution" means the prosecution of an offence under an enactment of British Columbia or Canada; , and

(g) by repealing the definition of "public body" and substituting the following:

"public body" means

(a) a ministry of the government of British Columbia,

(b) an agency, board, commission, corporation, office or other body designated in, or added by regulation to, Schedule 2,

(c) a local public body, but does not include

(d) the office of a person who is a member or officer of the Legislative Assembly, or

(e) the Court of Appeal, Supreme Court or Provincial Court; .

28 Schedule 2 is amended

(a) by striking out "British Columbia Railway Company Limited" from the column headed "Public Body" and striking out "Chair of the Board of Directors" from the opposite column,

(b) by adding "Office of the Premier and Executive Council Operations" under the column headed "Public Body" and adding "Premier" in the opposite column,

(c) by adding "Office of the Public Trustee" in the column headed "Public Body" and adding "Public Trustee" in the opposite column, and

(d) by striking out "Public Service and Private Sector Inquiry Commission" from the column headed "Public Body" and substituting "Public Service and Public Sector Inquiry Commission".

29 The following Schedule is added:

SCHEDULE 3

Governing Bodies of Professions or Occupations

Applied Science Technologists and Technicians of British Columbia
Architectural Institute of British Columbia
Association of British Columbia Professional Foresters
Association of Naturopathic Physicians of British Columbia
Association of Physiotherapists and Massage Practitioners of British Columbia
Association of Professional Engineers and Geoscientists of the Province of British Columbia
Barbers' Association of British Columbia
Board of Registration for Social Workers
British Columbia Association of Optometrists
British Columbia Association of Podiatrists
British Columbia College of Chiropractors
British Columbia Institute of Agrologists
British Columbia Registered Music Teachers' Association
British Columbia Society of Landscape Architects
British Columbia Veterinary Medical Association
Certified General Accountants' Association of British Columbia
College of Dental Surgeons of British Columbia
College of Pharmacists of British Columbia
College of Physicians and Surgeons of British Columbia
College of Psychologists of British Columbia
College of Teachers
Corporation of Land Surveyors of British Columbia
Council of Licensed Practical Nurses
Dental Technicians and Denturists Board
Hairdressers' Association of British Columbia
Health Professions Council
Institute of Chartered Accountants of British Columbia
Law Society of British Columbia
Real Estate Council
Registered Nurses' Association of British Columbia
Registered Psychiatric Nurses Association of British Columbia
Society of Management Accountants of British Columbia
Society of Notaries Public of British Columbia

 
Consequential Amendments

 
Insurance (Motor Vehicle) Act

30 Section 11 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1979, c. 204, is repealed.

 
Legal Profession Act

31 Section 57 (1) of the Legal Profession Act, S.B.C. 1987, c. 25, is amended

(a) in subsection (1) by striking out "A person" and substituting "Notwithstanding section 14 of the Freedom of Information and Protection of Privacy Act, a person",

(b) in subsection (6) by striking out "The benchers" and substituting "Notwithstanding section 14 of the Freedom of Information and Protection of Privacy Act, the benchers", and

(c) by adding the following subsection:

(7) Section 47 (4) of the Freedom of Information and Protection of Privacy Act does not apply to information that, but for the provisions of this Act and the production of the information to the commissioner under that Act, would be subject to solicitor and client privilege.

 
Medical and Health Care Services Act

32 Section 43 of the Medical and Health Care Services Act, S.B.C. 1992, c. 76, is amended by striking out "or" at the end of paragraph (b), by adding ", or" at the end of paragraph (c) and by adding the following paragraph:

(d) in accordance with section 35 of the Freedom of Information and Protection of Privacy Act.

Commencement

33 This Act comes into force by regulation of the Lieutenant Governor in Council.

 
Explanatory Notes

The main purpose of this Bill is to extend information and privacy rights to cover local government and other bodies as recommended in the Barry Jones' Report.

SECTION 1:

(a) clarifies that the record of a justice of the peace, like the records of a judge, are outside the scope of the Act, and

(b) expands the categories of records that are outside the scope of the Act to ensure that teaching materials and research information of employees of post-secondary educational bodies and certain records of elected officials of local public bodies are protected from disclosure.

SECTION 2: authorizes the head of a public body to refuse, in certain circumstances, to confirm or deny the existence of a record containing personal information of a third party.

At present the authority to refuse to confirm or deny the existence of a record applies only if the record contains information harmful to law enforcement.

SECTION 3: removes references that are too restrictive.

SECTION 4: creates a discretionary exception in order to protect confidences of local public bodies.

SECTION 5: removes a reference to draft regulations from a provision permitting the head of a public body to refuse to disclose advice or recommendations.

SECTION 6: expands the law enforcement exception in order to protect sensitive law enforcement information.

SECTION 7: clarifies who has a right of access to the reasons for a decision not to prosecute.

SECTION 8: makes the Attorney General's consent a requirement for the disclosure of law enforcement information that could be harmful to intergovernmental relations and removes the time limit on the disclosure of that information.

SECTION 9: permits the head of a public body to refuse to disclose research material in the specified circumstances.

SECTION 10: provides that information need only be available for purchase by the public in order to be excepted from disclosure under section 20 (1) (a) of the Act.

SECTION 11: restricts the circumstances in which information can be excepted from disclosure under section 21 of the Act by providing that the exception does apply to certain material in archives.

SECTION 12:

(a) clarifies that disclosure of personal information relating to occupational history is presumed to be an invasion of personal privacy,

(b) clarifies that the intent of section 22 (3) (g) of the Act is to protect the privacy of an individual who is the subject of a recommendation, character reference or evaluation,

(c) provides that a disclosure is presumed to be an invasion of a third party's personal privacy if it reveals that the third party supplied a recommendation, character reference or evaluation in confidence,

(d) strengthens the protection of personal privacy by providing that release of an individual's name, address or telephone number for mailing list or solicitation purposes is presumed to be an invasion of personal privacy, and

(e) corrects an error by removing a reference to a section of the Financial Information Act.

SECTION 13: clarifies that the duty to notify third parties applies only if the head of the public body intends to release third party information.

SECTION 14: consequential to the amendment to section 23 of the Act.

SECTION 15:

(a) clarifies that a public body may collect personal information from third parties for the purpose of determining a person's suitability for an honourary degree, scholarship, prize or bursary, and

(b) removes the requirement that public bodies provide the name of one of their officers or employees who can answer questions about the collection of personal information.

SECTION 16: clarifies that a public body may disclose personal information only if the disclosure is necessary for performing the statutory duties of, or for operating a legally authorized program of, the public body.

SECTION 17: widens one of the conditions under which personal information may be disclosed for research purposes by allowing the commissioner to approve research purposes.

SECTIONS 18 and 19: are housekeeping amendments.

SECTION 20: is consequential to the proposed section 76.1.

SECTION 21:

(a), (b) and (d) ensure that the minister need not include in the freedom of information directory all the information for local public bodies that is required for other public bodies and require each local public body to make a simplified form of directory available to the public, and

(c) removes the requirement that the name of the head of each public body be included in the freedom of information directory.

SECTION 22:

(a) removes the requirement that the public record index include lists of records, and

(b) removes the requirement that the name of the head of the public body be included in the public record index.

SECTION 23: clarifies that public bodies, and the other persons specified in the proposed section, cannot be sued in tort for disclosing or failing to disclose information or for failing to give notice.

SECTION 24: expands the Lieutenant Governor in Council's powers to make regulations to ensure that those powers are adequate for the different types of bodies that are being included in the definition of "public body".

SECTION 25: adds 2 new provisions. The first requires local public bodies to designate heads of local public bodies, allows them to delegate the duties of the heads and authorizes them to set fee schedules that accord with section 75 of the Act; the second permits disclosure of names and addresses to the Tuberculous and Chest Disabled Veterans' Association for fund raising purposes.

SECTION 26: allows more time for harmonizing other legislation with the Act. The extra year is needed to review the legislation relating to local public bodies.

SECTION 27:

(a) defines the educational bodies that the Act will apply to,

(b) expands the definition of "head" to include the heads of local public bodies,

(c) defines the health care bodies that the Act will apply to,

(d) clarifies that records containing information relating to a master of the Supreme Court or a justice of the peace and records of the judicial council of the Provincial Court are judicial administration records, and therefore outside the scope of the Act,

(e) corrects an error,

(f) defines the local government bodies that the Act will apply to and includes them together with health care bodies, educational bodies and the governing bodies of certain professions and occupations in the definition of "local public body". This amendment also adds a definition to clarify the meaning of the term "prosecution" in the Act, and

(g) revises the definition of "public body" to include local public bodies and to clarify that branches and offices of ministries are not separate public bodies for the purposes of the Act.

SECTION 28:

(a) removes the British Columbia Railway Company Limited from the list of public bodies that the Act applies to,

(b) is consequential to the amendments to the definition of "public body",

(c) remedies an omission, and

(d) corrects an error.

SECTION 29: specifies the self-governing professional and occupational bodies that the Act will apply to.

SECTION 30: repeals a confidentiality provision in the Insurance (Motor Vehicle) Act.

SECTION 31:

(a) ensures that privileged information that is protected from disclosure under section 57 of the Legal Profession Act when it is in the hands of the Law Society will continue to be protected,

(b) clarifies that the benchers may continue to make rules for the purpose of ensuring that privileged information is not disclosed, and

(c) provides that a section of the Freedom of Information and Protection of Privacy Act that authorizes the commissioner to disclose information to the Attorney General does not apply to information protected by solicitor client privilege under the Legal Profession Act.

SECTION 32: makes the Medical and Health Care Services Act consistent with the Freedom of Information and Protection of Privacy Act by permitting disclosure of personal information for research and statistical purposes in accordance with section 35 of the latter Act.


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