HONOURABLE MARGARET MacDIARMID
MINISTER OF LABOUR, CITIZENS' SERVICES
AND OPEN GOVERNMENT

BILL 3 — 2011

FREEDOM OF INFORMATION AND
PROTECTION OF PRIVACY
AMENDMENT ACT, 2011

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

SECTION 1: [Freedom of Information and Protection of Privacy Act, section 3] expands the types of records to which the Act does not apply.

1 Section 3 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, is amended

(a) in subsection (1) (a) by striking out "a record in a court file," and substituting "a court record,", and

(b) by repealing subsection (1) (e) and (i) and substituting the following:

(e) a record containing teaching materials or research information of

(i) a faculty member, as defined in the College and Institute Act and the University Act, of a post-secondary educational body,

(ii) a teaching assistant or research assistant employed at a post-secondary educational body, or

(iii) other persons teaching or carrying out research at a post-secondary educational body;

(j) a record that is available for purchase by the public;

(k) a record of a service provider that is not related to the provision of services for a public body.

SECTION 2: [Freedom of Information and Protection of Privacy Act, section 9]

(a) requires the head of a public body to comply with subsection (2.1), as added by this Bill,

(b) requires the head of a public body to provide an applicant with a copy of a record, or a part of a record, in the circumstances described,

(c) sets out how the head of a public body must provide records if the applicant requests a copy in electronic form,

(d) is consequential to subsection (2.1), as added by this Bill, and

(e) clarifies when an applicant may examine a record or part of a record.

2 Section 9 is amended

(a) in subsection (1) by striking out "subsection (2) or (3)" and substituting "subsection (2), (2.1) or (3)",

(b) by repealing subsection (2) and substituting the following:

(2) If the applicant has asked for a copy under section 5 (2) and the record can reasonably be reproduced, a copy of the record or part of the record must be provided with the response. ,

(c) by adding the following subsection:

(2.1) If the applicant has asked for a copy under section 5 (2) in electronic form and it is reasonable to provide the record in that form, a copy of the record or part of the record must be provided in that form with the response. ,

(d) in subsection (3) by striking out "reasonably be reproduced, the applicant" and substituting "be provided in accordance with subsection (2) or (2.1) of this section, as applicable, the applicant", and

(e) in subsection (3) (a) by striking out "part of the record, or" and substituting "part of the record if the record or part of the record can reasonably be examined, or".

SECTION 3: [Freedom of Information and Protection of Privacy Act, section 10]

(a) provides that the head of a public body may extend the time for responding to an applicant's request for a record, with the applicant's consent,

(b) provides for a further extension of time for responding to an applicant's request for a record, with the applicant's consent and the permission of the commissioner, and

(c) enables an applicant to complain about the extension referred to in paragraph (a).

3 Section 10 is amended

(a) in subsection (1) by adding the following paragraph:

(d) the applicant has consented, in the prescribed manner, to the extension. ,

(b) in subsection (2) (a) by striking out "subsection (1) (a) to (c) apply," and substituting "subsection (1) (a) to (d) apply,", and

(c) in subsection (3) (c) by striking out "subsection (1)," and substituting "subsection (1) (a) to (c),".

SECTION 4: [Freedom of Information and Protection of Privacy Act, section 13] is consequential to the definition of "program or activity", as added by this Bill.

4 Section 13 (2) is amended

(a) in paragraph (g) by striking out "its programs or policies," and substituting "its policies or its programs or activities,", and

(b) in paragraph (l) by striking out "a new program or to change a program," and substituting "a new program or activity or to change a program or activity,".

SECTION 5: [Freedom of Information and Protection of Privacy Act, section 15] is consequential to the definition of "program or activity", as added by this Bill.

5 Section 15 (3) (b) is amended by striking out "law enforcement program unless" and substituting "law enforcement program or activity unless".

SECTION 6: [Freedom of Information and Protection of Privacy Act, section 20]

(a) eliminates the discretion of the head of a public body to refuse to disclose information that is available for purchase by the public,

(b) is consequential to section 20 (1) (c), as added by this Bill,

(c) provides the head of a public body with a discretion to refuse to disclose information that must be published or released under an enactment,

(d) requires the head of a public body to notify an applicant of the date the information referred to in section 20 (1) (c), as added by this Bill, is published or released, and

(e) requires the head of a public body to disclose the described information to the applicant within the time period specified unless the head of the public body is authorized, or required, to refuse to disclose the information in accordance with specific provisions of the Act.

6 Section 20 is amended

(a) by repealing subsection (1) (a),

(b) in subsection (1) (b) by striking out "public." and substituting "public, or",

(c) in subsection (1) by adding the following paragraph:

(c) that must be published or released to the public under an enactment. ,

(d) in subsection (2) by striking out "subsection (1) (b)." and substituting "subsection (1).", and

(e) by repealing subsection (3) and substituting the following:

(3) If the information referred to in subsection (1) (b) is not published or released to the public within 60 days after the applicant's request is received, the head of the public body must disclose the information to the applicant on, or within 30 days of, that date unless the head of the public body is authorized or required to refuse to disclose the information under other sections of this Division.

SECTION 7: [Freedom of Information and Protection of Privacy Act, section 22]

(a) adds the length of time a person has been deceased to the list of circumstances that must be considered when determining whether an unreasonable invasion of a third party's personal privacy has occurred,

(b) provides that an unreasonable invasion of a third party's personal privacy is presumed to occur in respect of the disclosure of personal recommendations, evaluations or references in the circumstances described,

(c) clarifies that the disclosure of the specified details is not an unreasonable invasion of a third party's personal privacy, and

(d) sets out the circumstances in which a public body may refuse to disclose a summary of personal recommendations, evaluations or references.

7 Section 22 is amended

(a) in subsection (2) by striking out "and" at the end of paragraph (g), by adding ", and" at the end of paragraph (h) and by adding the following paragraph:

(i) the information is about a deceased person and, if so, whether the length of time the person has been deceased indicates the disclosure is not an unreasonable invasion of the deceased person's personal privacy. ,

(b) by repealing subsection (3) (h) and substituting the following:

(h) the disclosure could reasonably be expected to reveal the content of a personal recommendation or evaluation, a character reference or a personnel evaluation supplied by the third party in confidence and the applicant could reasonably be expected to know the identity of the third party, ,

(c) by repealing subsection (4) (i) and (j) and substituting the following:

(i) the disclosure, in respect of

(i) a licence, a permit or any other similar discretionary benefit, or

(ii) a degree, a diploma or a certificate,

reveals any of the following with respect to the applicable item in subparagraph (i) or (ii):

(iii) the name of the third party to whom the item applies;

(iv) what the item grants or confers on the third party or authorizes the third party to do;

(v) the status of the item;

(vi) the date the item was conferred or granted;

(vii) the period of time the item is valid;

(viii) the date the item expires, or

(j) the disclosure, in respect of a discretionary benefit of a financial nature granted to a third party by a public body, not including personal information referred to in subsection (3) (c), reveals any of the following with respect to the benefit:

(i) the name of the third party to whom the benefit applies;

(ii) what the benefit grants to the third party;

(iii) the date the benefit was granted;

(iv) the period of time the benefit is valid;

(v) the date the benefit ceases. , and

(d) by repealing subsection (5) and substituting the following:

(5) On refusing, under this section, to disclose personal information supplied in confidence about an applicant, the head of the public body must give the applicant a summary of the information unless

(a) the summary cannot be prepared without disclosing the identity of a third party who supplied the personal information, or

(b) with respect to subsection (3) (h), either paragraph (a) of this subsection applies or the applicant could reasonably be expected to know the identity of the third party who supplied the personal recommendation or evaluation, character reference or personnel evaluation.

SECTION 8: [Freedom of Information and Protection of Privacy Act, section 26] adds circumstances in which a public body may collect personal information and changes the introductory words to reflect plain language.

8 Section 26 is repealed and the following substituted:

Purpose for which personal information may be collected

26  A public body may collect personal information only if

(a) the collection of the information is expressly authorized under an Act,

(b) the information is collected for the purposes of law enforcement,

(c) the information relates directly to and is necessary for a program or activity of the public body,

(d) with respect to personal information collected for a prescribed purpose,

(i) the individual the information is about has consented in the prescribed manner to that collection, and

(ii) a reasonable person would consider that collection appropriate in the circumstances,

(e) the information is necessary for the purposes of planning or evaluating a program or activity of a public body,

(f) the information is necessary for the purpose of reducing the risk that an individual will be a victim of domestic violence, if domestic violence is reasonably likely to occur,

(g) the information is collected by observation at a presentation, ceremony, performance, sports meet or similar event

(i) at which the individual voluntarily appears, and

(ii) that is open to the public, or

(h) the information is personal identity information that is collected by

(i) a provincial identity information services provider and the collection of the information is necessary to enable the provincial identity information services provider to provide services under section 69.2, or

(ii) a public body from a provincial identity information services provider and the collection of the information is necessary to enable

(A) the public body to identify an individual for the purpose of providing a service to the individual, or

(B) the provincial identity information services provider to provide services under section 69.2.

SECTION 9: [Freedom of Information and Protection of Privacy Act, section 27]

9 Section 27 is amended

(a) in subsection (1) by striking out "or cause personal information to be collected",

(b) in subsection (1) by striking out "or" at the end of paragraph (b),

(c) in subsection (1) (c) by striking out "or" at the end of subparagraph (iii), by adding ", or" at the end of subparagraph (iv) and by adding the following subparagraph:

(v) reducing the risk that an individual will be a victim of domestic violence, if domestic violence is reasonably likely to occur, ,

(d) in subsection (1) by adding the following paragraphs:

(d) the information is transferred to the public body from another public body in accordance with section 27.1,

(e) the collection of the information is necessary for delivering or evaluating a common or integrated program or activity,

(f) the information is about an employee, other than a service provider, and the collection of the information is necessary for the purposes of managing or terminating an employment relationship between a public body and the employee, or

(g) the information is personal identity information that is collected by a provincial identity information services provider and the collection of the information is necessary to enable the provincial identity information services provider to provide services under section 69.2. ,

(e) in subsection (2) by striking out "or causes personal information to be collected",

(f) in subsection (3) by striking out "or" at the end of paragraph (b) (ii), by adding ", or" at the end of paragraph (c) (ii) and by adding the following paragraph:

(d) the information is collected by observation at a presentation, ceremony, performance, sports meet or similar event

(i) at which the individual voluntarily appears, and

(ii) that is open to the public. , and

(g) by adding the following subsection:

(4) A public body must notify an employee, other than a service provider, that it will be collecting personal information under subsection (1) (f) unless it is reasonable to expect that the notification would compromise

(a) the availability or the accuracy of the information, or

(b) an investigation or a proceeding related to the employment of the employee.

SECTION 10: [Freedom of Information and Protection of Privacy Act, section 27.1] clarifies the circumstances in which personal information received by a public body is not, for the purposes of the Act, collected by the public body.

10 The following section is added:

When personal information is not collected

27.1  (1) Personal information that is received by a public body is not collected by the public body for the purposes of this Act if

(a) the information does not relate to a program or activity of the public body, and

(b) the public body takes no action with respect to the information other than to

(i) read all or a part of it and then delete, destroy or return it, or

(ii) read all or a part of it and then transfer it in accordance with subsection (2).

(2) For the purpose of subsection (1) (b) (ii), a public body may transfer personal information to

(a) another public body, or

(b) a government institution subject to the Privacy Act (Canada)

if the public body determines the information relates to a program or activity of the other public body or government institution referred to in paragraph (a) or (b).

SECTION 11: [Freedom of Information and Protection of Privacy Act, section 32] changes the introductory words to reflect plain language.

11 Section 32 is amended by striking out "A public body must ensure that personal information in its custody or under its control is used only" and substituting "A public body may use personal information in its custody or under its control only".

SECTION 12: [Freedom of Information and Protection of Privacy Act, section 33] provides that a public body may disclose personal information as permitted under section 33.3, as added by this Bill, and removes unnecessary words.

12 Section 33 is repealed and the following substituted:

Disclosure of personal information

33  A public body may disclose personal information in its custody or under its control only as permitted under section 33.1, 33.2 or 33.3.

SECTION 13: [Freedom of Information and Protection of Privacy Act, section 33.1]

13 Section 33.1 is amended

(a) in subsection (1) (c) and (d) (ii) by striking out "British Columbia or Canada" and substituting "British Columbia, other than this Act, or Canada",

(b) by repealing subsection (1) (g) and (j) and substituting the following:

(g) to the Attorney General or legal counsel for the public body, for the purpose of preparing or obtaining legal advice for the government or public body or for use in civil proceedings involving the government or public body; ,

(c) in subsection (1) by adding the following paragraphs:

(m.1) for the purpose of reducing the risk that an individual will be a victim of domestic violence, if domestic violence is reasonably likely to occur;

(q) if the information was collected by observation at a presentation, ceremony, performance, sports meet or similar event

(i) at which the individual voluntarily appeared, and

(ii) that was open to the public;

(r) if the information

(i) was disclosed on a social media site by the individual the information is about,

(ii) was obtained or compiled by the public body for the purpose of enabling the public body to engage individuals in public discussion or promotion respecting proposed or existing initiatives, policies, proposals, programs or activities of the public body or respecting legislation relating to the public body, and

(iii) is disclosed for a use that is consistent with the purpose described in subparagraph (ii);

(s) in accordance with section 35 [disclosure for research or statistical purposes];

(t) to comply with a subpoena, a warrant or an order issued or made by a court, person or body in Canada with jurisdiction to compel the production of information. , and

(d) by adding the following subsections:

(4) In addition to the authority under any other provision of this section or section 33.2, the Insurance Corporation of British Columbia may disclose personal information if

(a) the information was obtained or compiled by that public body for the purposes of insurance provided by the public body, and

(b) disclosure of the information is necessary to investigate, manage or settle a specific insurance claim.

(5) In addition to the authority under any other provision of this section or section 33.2, a provincial identity information services provider may disclose personal identity information

(a) to enable the provincial identity services provider to provide services under section 69.2, or

(b) to a public body if the disclosure is necessary to enable the public body to identify an individual for the purpose of providing a service to the individual.

(6) In addition to the authority under any other provision of this section or section 33.2, a public body may disclose personal identity information to a provincial identity information services provider if the disclosure is necessary to enable

(a) the public body to identify an individual for the purpose of providing a service to the individual, or

(b) the provincial identity information services provider to provide services under section 69.2.

(7) Without limiting the authority under any other provision of this section or section 33.2, a public body may disclose personal information to the individual the information is about if

(a) the individual has initiated contact with the public body about a matter and the public body is responding to that contact,

(b) the public body discloses information only in respect of the matter, and

(c) the public body uses

(i) the same communication method used by the individual to initiate contact, or

(ii) another communication method authorized by the individual.

SECTION 14: [Freedom of Information and Protection of Privacy Act, section 33.2] adds and removes circumstances in which a public body may disclose personal information inside Canada.

14 Section 33.2 (b), (d) and (k) is repealed and the following substituted:

(d) to an officer or employee of

(i) a public body, or

(ii) an agency,

or to a minister, if the information is necessary for the delivery of a common or integrated program or activity and for the performance of the duties, respecting the common or integrated program or activity, of the officer, employee or minister to whom the information is disclosed;

(l) to an officer or employee of a public body or to a minister, if the information is necessary for the purposes of planning or evaluating a program or activity of a public body.

SECTION 15: [Freedom of Information and Protection of Privacy Act, section 33.3] authorizes disclosure of personal information in records within a category of records established under section 71, as amended by this Bill, and section 71.1, as added by this Bill.

15 The following section is added:

Disclosure of personal information in records
available to public without request

33.3  (1) A public body may disclose to the public a record that is within a category of records established under section 71 (1).

(2) A ministry may disclose to the public a record that is within a category of records established under section 71.1 (1).

SECTION 16: [Freedom of Information and Protection of Privacy Act, section 34]

16 Section 34 is repealed and the following substituted:

Definition of consistent purpose

34  For the purposes of section 32 (a), 33.1 (1) (r) (iii) or 33.2 (a), or paragraph (b) of the definition of "data linking" in Schedule 1, a use of personal information is consistent with the purpose for which the information was obtained or compiled if the use

(a) has a reasonable and direct connection to that purpose, and

(b) is necessary for performing the statutory duties of, or for operating a program or activity of, the public body that uses or discloses the information.

SECTION 17: [Freedom of Information and Protection of Privacy Act, section 35]

(a) eliminates unnecessary words, and

(b) replaces the phrase "record linkage" with a defined phrase, as added by this Bill.

17 Section 35 (1) is amended

(a) by striking out "personal information or may cause personal information in its custody or under its control to be disclosed" and substituting "personal information in its custody or under its control", and

(b) in paragraph (b) by striking out "record linkage" in both places and substituting "data linking".

SECTION 18: [Freedom of Information and Protection of Privacy Act, section 36]

(a) clarifies that section 33, as amended by this Bill, applies to the archives as set out, and

(b) eliminates unnecessary words.

18 Section 36 is amended

(a) in subsection (1) by striking out "The archives" and substituting "In addition to the authority under sections 33.1, 33.2 and 33.3, the archives", and

(b) in subsections (1) and (3) by striking out "personal information or cause personal information in its custody or under its control to be disclosed" and substituting "personal information in its custody or under its control".

SECTION 19: [Freedom of Information and Protection of Privacy Act, Division 3 of Part 3]

19 The following Division is added to Part 3:

Division 3 – Data-linking Initiatives

Data-linking initiatives

36.1  (1) A public body participating in a new or significantly revised data-linking initiative must comply with the regulations, if any, prescribed for the purposes of this subsection.

(2) If all the participants in a new or significantly revised data-linking initiative are a health care body, the ministry of the minister responsible for the administration of the Ministry of Health Act or a health-related organization as prescribed, then subsection (1) does not apply to the participants.

(3) For the purposes of subsections (1) and (2), a public body is participating in

(a) a new data-linking initiative if the data-linking initiative is implemented after the date this section comes into force, or

(b) a significantly revised data-linking initiative if the data-linking initiative is an existing data-linking initiative and a public body participating in that data-linking initiative expands it by doing one or more of the following:

(i) adding a public body or an agency that is not already a participant in the data-linking initiative;

(ii) adding a database that is not already a part of the data-linking initiative;

(iii) undertaking a purpose that is not already a purpose of the data-linking initiative;

(iv) using a type of technology that is not already a part of the data-linking initiative.

(4) Despite subsection (3) (a), a public body is not participating in a new data-linking initiative if, before the date this section comes into force, the public body has completed a written project plan respecting the data-linking initiative that states

(a) the objectives of the project,

(b) the costs and benefits of the project, and

(c) the risks associated with those costs and benefits.

SECTION 20: [Freedom of Information and Protection of Privacy Act, section 42]

(a) expands the commissioner's power to conduct investigations and audits to ensure compliance with any provision of a regulation,

(b) is consequential to the definition of "program or activity" as added by this Bill, and

(c) replaces the phrase "record linkage" with a defined phrase, as added by this Bill.

20 Section 42 (1) is amended

(a) in paragraph (a) by striking out "of this Act," and substituting "of this Act or the regulations,",

(b) in paragraph (f) by striking out "or programs of" and substituting "or programs or activities of", and

(c) in paragraph (h) by striking out "record linkage," and substituting "data linking,".

SECTION 21: [Freedom of Information and Protection of Privacy Act, section 59]

21 Section 59 (2) is repealed and the following substituted:

(2) Subject to subsection (3), if an application for judicial review is brought before the end of the period referred to in subsection (1) or set out in an order given under section 54.1, the order of the commissioner is stayed for 120 days, beginning on the date the application is brought, unless a court makes an order shortening or extending the stay.

(3) If a date for hearing the application for judicial review is set before the expiration of the stay of the commissioner's order referred to in subsection (2), the stay of the commissioner's order is extended until the judicial review is completed or the court makes an order shortening the stay.

SECTION 22: [Freedom of Information and Protection of Privacy Act, section 62] clarifies that the reference to the commissioner means the commissioner as head of a public body.

22 Section 62 (1) is amended by striking out "commissioner that relates" and substituting "commissioner as head of a public body that relates".

SECTION 23: [Freedom of Information and Protection of Privacy Act, section 63] clarifies that the reference to the commissioner means the commissioner as head of a public body.

23 Section 63 (2) and (3) is amended by striking out "the commissioner" and substituting "the commissioner as head of a public body".

SECTION 24: [Freedom of Information and Protection of Privacy Act, section 66] removes the exception for local public bodies so that a local public body may delegate any power, duty or function of the head to any person.

24 Section 66 (3) is repealed.

SECTION 25: [Freedom of Information and Protection of Privacy Act, section 69]

(a) broadens the definition of "information-sharing agreement" and clarifies the definition of "privacy impact assessment",

(b) is consequential to subsection (5) of this section, as repealed and replaced by this Bill,

(c) sets out rules respecting privacy impact assessments, information-sharing agreements, common or integrated programs or activities and data-linking initiatives, and

(d) requires the minister responsible for the Act, in consultation with the commissioner, to establish an information-sharing code of practice as set out.

25 Section 69 is amended

(a) in subsection (1) by repealing the definitions of "information-sharing agreement" and "privacy impact assessment" and substituting the following:

"information-sharing agreement" means an agreement between a public body and one or more of the following:

(a) another public body;

(b) a government institution subject to the Privacy Act (Canada);

(c) an organization subject to the Personal Information Protection Act or the Personal Information Protection and Electronic Documents Act (Canada);

(d) a public body, government institution or institution as defined in applicable provincial legislation having the same effect as this Act;

(e) a person or a group of persons;

(f) a prescribed entity,

that sets conditions on the collection, use or disclosure of personal information by the parties to the agreement;

"privacy impact assessment" means an assessment that is conducted by a public body to determine if a current or proposed enactment, system, project, program or activity meets or will meet the requirements of Part 3 of this Act. ,

(b) by repealing subsection (3) (c) and substituting the following:

(c) the privacy impact assessments referred to in subsection (5); ,

(c) by repealing subsection (5) and substituting the following:

(5) The head of a ministry must conduct a privacy impact assessment in accordance with the directions of the minister responsible for this Act.

(5.1) The head of a ministry, with respect to a proposed enactment, system, project, program or activity, must submit, during the development of the proposed enactment, system, project, program or activity, the privacy impact assessment to the minister responsible for this Act for the minister's review and comment.

(5.2) If the minister responsible for this Act receives a privacy impact assessment under subsection (5.1) respecting a common or integrated program or activity or a data-linking initiative, the minister must submit, during the development of the proposed enactment, system, project, program or activity, the privacy impact assessment to the commissioner for the commissioner's review and comment.

(5.3) The head of a public body that is not a ministry must conduct a privacy impact assessment in accordance with the directions of the minister responsible for this Act.

(5.4) The head of a public body that is not a ministry, with respect to a proposed system, project, program or activity, must submit, during the development of the proposed system, project, program or activity, the privacy impact assessment, if it addresses a common or integrated program or activity or a data-linking initiative, to the commissioner for the commissioner's review and comment.

(5.5) The head of a public body must notify the commissioner of a data-linking initiative or of a common or integrated program or activity at an early stage of developing the initiative, program or activity.

(5.6) If all the participants in a data-linking initiative are either a health care body, the ministry of the minister responsible for the administration of the Ministry of Health Act or a health-related organization as prescribed, then

(a) subsections (5.3), (5.4) and (5.5) do not apply with respect to a participant that is a health care body or a health-related organization as prescribed, and

(b) subsections (5), (5.1) and (5.5) do not apply with respect to a participant that is the ministry of the minister responsible for the administration of the Ministry of Health Act.

(5.7) The head of a ministry must prepare an information-sharing agreement in accordance with the directions of the minister responsible for this Act. , and

(d) by adding the following subsection:

(9) The minister responsible for this Act, in consultation with the commissioner, must establish an information-sharing code of practice that makes recommendations respecting how personal information is to be collected, used and disclosed under this Act.

SECTION 26: [Freedom of Information and Protection of Privacy Act, section 69.2]

26 The following section is added:

Provincial identity information services provider

69.2  (1) The minister responsible for this Act may designate a public body as a provincial identity information services provider.

(2) A provincial identity information services provider, by exercising its powers respecting the collection, use and disclosure of information, may provide the following services:

(a) identifying an individual;

(b) verifying the identity of an individual;

(c) updating personal identity information about an individual;

(d) issuing a physical or an electronic credential to an individual;

(e) managing the information associated with a physical or an electronic credential;

(f) any other service related to personal identity information that the minister responsible for this Act considers appropriate.

(3) The minister responsible for this Act may give directions to a provincial identity information services provider or a public body respecting

(a) the type and quantity of personal identity information required to identify, or verify the identity of, individuals seeking access to government services,

(b) the provision to individuals of physical and electronic credentials for use in accessing government services,

(c) the privacy and security of personal identity information that is collected, used or disclosed under this Act,

(d) the format in which personal identity information is collected, used or disclosed under this Act, and

(e) the circumstances in which particular types of personal identity information may or may not be collected, used or disclosed in relation to services provided under subsection (2).

(4) The minister, under subsection (3), may give different directions for different categories of personal identity information, personal identity information services and government services.

SECTION 27: [Freedom of Information and Protection of Privacy Act, section 71]

(a) requires the head of a public body to establish categories of records and sets out the rules respecting personal information in those records, and

(b) replaces a word for consistency of language.

27 Section 71 is amended

(a) by repealing subsection (1) and substituting the following:

(1) Subject to subsection (1.1), the head of a public body must establish categories of records that are in the custody or under the control of the public body and are available to the public without a request for access under this Act.

(1.1) The head of a public body must not establish a category of records that contain personal information unless the information

(a) may be disclosed under section 33.1 or 33.2, or

(b) would not constitute, if disclosed, an unreasonable invasion of the personal privacy of the individual the information is about.

(1.2) Section 22 (2) to (4) applies to the determination of unreasonable invasion of personal privacy under subsection (1.1) (b) of this section. , and

(b) in subsection (3) by striking out "release" and substituting "disclose".

SECTION 28: [Freedom of Information and Protection of Privacy Act, sections 71.1, 73.1 and 73.2]

28 The following sections are added:

Records that ministries must disclose

71.1  (1) Subject to subsection (2), the minister responsible for this Act may establish categories of records that are in the custody or under the control of one or more ministries and are available to the public without a request for access under this Act.

(2) The minister responsible for this Act must not establish a category of records that contain personal information unless the information

(a) may be disclosed under section 33.1 or 33.2, or

(b) would not constitute, if disclosed, an unreasonable invasion of the personal privacy of the individual the information is about.

(3) Section 22 (2) to (4) applies to the determination of unreasonable invasion of personal privacy under subsection (2) (b) of this section.

(4) The minister responsible for this Act may require one or more ministries to disclose a record that is within a category of records established under subsection (1) of this section or section 71 (1).

(5) If required to disclose a record under subsection (4), a ministry must do so in accordance with any directions issued relating to the disclosure by the minister responsible for this Act.

Recovery of personal information

73.1  (1) If the head of a public body has reasonable grounds to believe that personal information in the custody or under the control of the public body is in the possession of a person or an entity not authorized by law to possess the information, the head of the public body may issue a written notice demanding that person or entity to do either of the following within 20 calendar days of receiving the notice:

(a) return the information to the public body or, in the case of electronic records, securely destroy the information and confirm in writing the date and the means by which the information was securely destroyed;

(b) respond in writing and declare why the person or entity considers that

(i) the information was not in the custody or under the control of the public body when the person or entity acquired possession of the information, or

(ii) the person or entity is authorized by law to possess the information.

(2) The written notice referred to in subsection (1) must

(a) identify, with reasonable specificity, the personal information claimed to be in the custody or under the control of the public body and in the possession of the person or entity not authorized by law to possess the information, and

(b) state that the public body may undertake legal action to recover the personal information if the person or entity fails to respond in writing within the required time or does not adequately demonstrate that

(i) the information was not in the custody or under the control of the public body when the person or entity acquired possession of the information, or

(ii) the person or entity is authorized by law to possess the information.

Court order for return of personal information

73.2  (1) If a person or an entity that receives a written notice and demand from the public body under section 73.1 (1) fails to

(a) return the described personal information or, in the case of electronic records, to securely destroy the information and confirm in writing the date and the means by which the information was securely destroyed,

(b) respond to the notice and demand within the required time, or

(c) adequately demonstrate that

(i) the personal information was not in the custody or under the control of the public body when the person or entity acquired possession of the information, or

(ii) the person or entity is authorized by law to possess the personal information,

the head of the public body may ask the Attorney General to petition the superior court in the jurisdiction in which the personal information is located for an order requiring the return of the personal information.

(2) If, after a hearing, the court determines that the personal information is in the possession of a person or an entity not authorized by law to possess the personal information and the public body is entitled to custody or control of the personal information, the court must order the personal information to be delivered to the head of the public body.

(3) The court may issue any order necessary to protect the personal information from destruction, alteration or transfer by the person or entity in possession of the personal information and may order that the personal information be surrendered into the custody of the head of the public body until the court reaches a decision on the petition.

SECTION 29: [Freedom of Information and Protection of Privacy Act, section 76]

(a) authorizes the Lieutenant Governor in Council to make regulations respecting the written documentation that confirms that a program or activity is a common or integrated program or activity and to make regulations defining any word or expression used but not defined in the Act,

(b) authorizes the Lieutenant Governor in Council to make regulations as set out after consultation with the commissioner, and

(c) provides that a regulation made under subsection (2.1) of this section, as added by this Bill, may provide differently for different classes of public bodies.

29 Section 76 is amended

(a) in subsection (2) by adding the following paragraphs:

(h.1) respecting the written documentation that confirms that a program or activity is a common or integrated program or activity;

(m.1) defining any word or expression used but not defined in this Act; ,

(b) by adding the following subsection:

(2.1) The Lieutenant Governor in Council, after consultation with the commissioner, may make regulations as follows:

(a) for the purposes of section 26 (d);

(b) for the purposes of section 36.1 (1), respecting how data-linking initiatives must be carried out. , and

(c) in subsection (5) by striking out "(1) or (2)" and substituting "(1), (2) or (2.1)".

SECTION 30: [Freedom of Information and Protection of Privacy Act, section 77] is consequential to the repeal of section 66 (3) by this Bill.

30 Section 77 is amended by adding "and" at the end of paragraph (a) and by repealing paragraph (b).

SECTION 31: [Freedom of Information and Protection of Privacy Act, Schedule 1] repeals and replaces a definition and adds new definitions.

31 Schedule 1 is amended

(a) by repealing the definition of "exercise of prosecutorial discretion" and substituting the following:

"exercise of prosecutorial discretion" means the exercise by

(a) Crown counsel, or a special prosecutor, of a duty or power under the Crown Counsel Act, including the duty or power

(i) to approve or not to approve a prosecution,

(ii) to stay a proceeding,

(iii) to prepare for a hearing or trial,

(iv) to conduct a hearing or trial,

(v) to take a position on sentence, and

(vi) to initiate an appeal, or

(b) a federal prosecutor, or an individual retained as a federal prosecutor, of a duty or power under the Director of Public Prosecutions Act (Canada), including a duty or power

(i) to initiate and conduct prosecutions, and

(ii) to conduct any appeal related to such a prosecution or proceeding; , and

(b) by adding the following definitions:

"agency" means, for the purposes of sections 33.2 (d) and 36.1 (3) (b) (i) and the definitions of "common or integrated program or activity" and "data-linking initiative",

(a) a government institution subject to the Privacy Act (Canada),

(b) an organization

(i) subject to the Personal Information Protection Act, or

(ii) operating in British Columbia that is subject to the Personal Information Protection and Electronic Documents Act (Canada),

(c) a public body, a government institution or an institution as defined in applicable provincial legislation having the same effect as this Act, or

(d) a prescribed entity;

"common or integrated program or activity" means a program or activity that

(a) provides one or more services through

(i) a public body and one or more other public bodies or agencies working collaboratively, or

(ii) one public body working on behalf of one or more other public bodies or agencies, and

(b) is confirmed by regulation as being a common or integrated program or activity;

"data linking" means the linking or combining of personal information in one database with personal information in one or more other databases if the purpose of the linking or combining is different from

(a) the purpose for which the information in each database was originally obtained or compiled, and

(b) every purpose that is consistent with each purpose referred to in paragraph (a);

"data-linking initiative" means a new or newly revised enactment, system, project, program or activity that has, as a component, data linking between

(a) two or more public bodies, or

(b) one or more public bodies and one or more agencies;

"domestic violence" means physical or sexual abuse of

(a) an individual,

(b) a parent or child of the individual referred to in paragraph (a), or

(c) any other individual who is in a prescribed relationship with the individual referred to in paragraph (a)

by an intimate partner of the individual referred to in paragraph (a);

"intimate partner" includes, with respect to an individual,

(a) a current or former spouse of the individual, by marriage or common law,

(b) a current or former boyfriend or girlfriend of the individual, and

(c) an individual referred to in paragraph (a) or (b) who is the same gender as the individual;

"personal identity information" means any personal information of a type that is commonly used, alone or in combination with other information, to identify or purport to identify an individual;

"program or activity" includes, when used in relation to a public body, a common or integrated program or activity respecting which the public body provides one or more services;

"provincial identity information services provider" means a provincial identity information services provider designated under section 69.2 (1);

"social media site" means the Internet site referred to as Facebook, YouTube, Twitter or MySpace or a prescribed social media site; .

Consequential Amendments

Child, Family and Community Service Act

SECTION 32: [Child, Family and Community Service Act, section 74]

32 Section 74 (2) of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, is amended

(a) in paragraph (a) by striking out "reference to "head" includes," and substituting "reference to "head", except in section 71, includes,", and

(b) by repealing paragraph (e) and substituting the following:

(e) the only provisions of sections 33.1 and 33.2 that apply to a director are the following:

(i) section 33.1 (1) (a) [in accordance with Part 2 of the Act];

(ii) section 33.1 (1) (b) [individual consent];

(iii) section 33.1 (1) (i.1) [payment to government or public body];

(iv) section 33.1 (1) (m.1) [domestic violence];

(v) section 33.1 (1) (o) [archival and historical purposes];

(vi) section 33.1 (1) (s) [research];

(vii) section 33.1 (6) [identity management services], except that the reference to "any other provision of this section or section 33.2" is to be read as a reference to any provision referred to in paragraph (e) (i) to (vi) and (viii) to (xi) of this subsection;

(viii) section 33.1 (7) [responding to an individual];

(ix) section 33.2 (d) [common or integrated program or activity];

(x) section 33.2 (j) [in Canada - archives];

(xi) section 33.2 (l) [evaluating program or activity];

(e.1) the authority for a public body to disclose personal information under section 33.1 (1) (q) or (r) or (7) or 33.3 does not include the authority to disclose information that could reasonably be expected to reveal that

(i) a child is a child in care, or

(ii) an individual is an individual who has made a report under section 14 of this Act.

E-Health (Personal Health Information Access
and Protection of Privacy) Act

SECTION 33: [E-Health (Personal Health Information Access and Protection of Privacy) Act, section 15] replaces the phrase "record linkage" with a phrase that is defined in the Freedom of Information and Protection of Privacy Act, as added by this Bill.

33 Section 15 (c) of the E-Health (Personal Health Information Access and Protection of Privacy) Act, S.B.C. 2008, c. 38, is amended by striking out "record linkage" in both places and substituting "data linking".

SECTION 34: [E-Health (Personal Health Information Access and Protection of Privacy) Act, section 18]

(a) is consequential to the repeal of section 33.2 (b) of the Freedom of Information and Protection of Privacy Act by this Bill,

(b) adds purposes to section 18 (2) of this Act respecting which an administrator may disclose personal health information inside or outside Canada, consequential to the addition of those purposes to section 33.1 of the Freedom of Information and Protection of Privacy Act by this Bill, and

(c) clarifies that sections 14 and 19 of this Act does not apply to disclosure of health information under section 18 of this Act.

34 Section 18 is amended

(a) in subsection (1) (a) by striking out "33.2 (b) or (f)" and substituting "33.2 (f)",

(b) in subsection (2) (a) by striking out "(n) or (p)" and substituting "(n), (p) or (t) or (6) or (7)", and

(c) by repealing subsection (3) and substituting the following:

(3) Sections 14 [disclosure for planning or research purposes] and 19 [information-sharing agreements] do not apply to the disclosure of personal health information under this section.

Family Maintenance Enforcement Act

SECTION 35: [Family Maintenance Enforcement Act, section 43] is consequential to the repeal of section 33.2 (k) of the Freedom of Information and Protection of Privacy Act, and the addition of section 33.1 (1) (s) to that Act, by this Bill.

35 Section 43 (2) of the Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127, is amended by striking out "section 33.2 (k)" and substituting "section 33.1 (1) (s)".

Family Relations Act

SECTION 36: [Family Relations Act, sections 3 and 100] is consequential to the repeal of section 33.2 (k) of the Freedom of Information and Protection of Privacy Act, and the addition of section 33.1 (1) (s) to that Act, by this Bill.

36 Sections 3 (5) (c) and 100 (6) (c) of the Family Relations Act, R.S.B.C. 1996, c. 128, are amended by striking out "section 33.2 (k)" and substituting "section 33.1 (1) (s)".

Commencement

37  This Act comes into force on the date of Royal Assent.

 
Explanatory Notes

SECTION 1: [Freedom of Information and Protection of Privacy Act, section 3] expands the types of records to which the Act does not apply.

SECTION 2: [Freedom of Information and Protection of Privacy Act, section 9]

(a) requires the head of a public body to comply with subsection (2.1), as added by this Bill,

(b) requires the head of a public body to provide an applicant with a copy of a record, or a part of a record, in the circumstances described,

(c) sets out how the head of a public body must provide records if the applicant requests a copy in electronic form,

(d) is consequential to subsection (2.1), as added by this Bill, and

(e) clarifies when an applicant may examine a record or part of a record.

SECTION 3: [Freedom of Information and Protection of Privacy Act, section 10]

(a) provides that the head of a public body may extend the time for responding to an applicant's request for a record, with the applicant's consent,

(b) provides for a further extension of time for responding to an applicant's request for a record, with the applicant's consent and the permission of the commissioner, and

(c) enables an applicant to complain about the extension referred to in paragraph (a).

SECTION 4: [Freedom of Information and Protection of Privacy Act, section 13] is consequential to the definition of "program or activity", as added by this Bill.

SECTION 5: [Freedom of Information and Protection of Privacy Act, section 15] is consequential to the definition of "program or activity", as added by this Bill.

SECTION 6: [Freedom of Information and Protection of Privacy Act, section 20]

(a) eliminates the discretion of the head of a public body to refuse to disclose information that is available for purchase by the public,

(b) is consequential to section 20 (1) (c), as added by this Bill,

(c) provides the head of a public body with a discretion to refuse to disclose information that must be published or released under an enactment,

(d) requires the head of a public body to notify an applicant of the date the information referred to in section 20 (1) (c), as added by this Bill, is published or released, and

(e) requires the head of a public body to disclose the described information to the applicant within the time period specified unless the head of the public body is authorized, or required, to refuse to disclose the information in accordance with specific provisions of the Act.

SECTION 7: [Freedom of Information and Protection of Privacy Act, section 22]

(a) adds the length of time a person has been deceased to the list of circumstances that must be considered when determining whether an unreasonable invasion of a third party's personal privacy has occurred,

(b) provides that an unreasonable invasion of a third party's personal privacy is presumed to occur in respect of the disclosure of personal recommendations, evaluations or references in the circumstances described,

(c) clarifies that the disclosure of the specified details is not an unreasonable invasion of a third party's personal privacy, and

(d) sets out the circumstances in which a public body may refuse to disclose a summary of personal recommendations, evaluations or references.

SECTION 8: [Freedom of Information and Protection of Privacy Act, section 26] adds circumstances in which a public body may collect personal information and changes the introductory words to reflect plain language.

SECTION 9: [Freedom of Information and Protection of Privacy Act, section 27]

SECTION 10: [Freedom of Information and Protection of Privacy Act, section 27.1] clarifies the circumstances in which personal information received by a public body is not, for the purposes of the Act, collected by the public body.

SECTION 11: [Freedom of Information and Protection of Privacy Act, section 32] changes the introductory words to reflect plain language.

SECTION 12: [Freedom of Information and Protection of Privacy Act, section 33] provides that a public body may disclose personal information as permitted under section 33.3, as added by this Bill, and removes unnecessary words.

SECTION 13: [Freedom of Information and Protection of Privacy Act, section 33.1]

SECTION 14: [Freedom of Information and Protection of Privacy Act, section 33.2] adds and removes circumstances in which a public body may disclose personal information inside Canada.

SECTION 15: [Freedom of Information and Protection of Privacy Act, section 33.3] authorizes disclosure of personal information in records within a category of records established under section 71, as amended by this Bill, and section 71.1, as added by this Bill.

SECTION 16: [Freedom of Information and Protection of Privacy Act, section 34]

SECTION 17: [Freedom of Information and Protection of Privacy Act, section 35]

(a) eliminates unnecessary words, and

(b) replaces the phrase "record linkage" with a defined phrase, as added by this Bill.

SECTION 18: [Freedom of Information and Protection of Privacy Act, section 36]

(a) clarifies that section 33, as amended by this Bill, applies to the archives as set out, and

(b) eliminates unnecessary words.

SECTION 19: [Freedom of Information and Protection of Privacy Act, Division 3 of Part 3]

SECTION 20: [Freedom of Information and Protection of Privacy Act, section 42]

(a) expands the commissioner's power to conduct investigations and audits to ensure compliance with any provision of a regulation,

(b) is consequential to the definition of "program or activity" as added by this Bill, and

(c) replaces the phrase "record linkage" with a defined phrase, as added by this Bill.

SECTION 21: [Freedom of Information and Protection of Privacy Act, section 59]

SECTION 22: [Freedom of Information and Protection of Privacy Act, section 62] clarifies that the reference to the commissioner means the commissioner as head of a public body.

SECTION 23: [Freedom of Information and Protection of Privacy Act, section 63] clarifies that the reference to the commissioner means the commissioner as head of a public body.

SECTION 24: [Freedom of Information and Protection of Privacy Act, section 66] removes the exception for local public bodies so that a local public body may delegate any power, duty or function of the head to any person.

SECTION 25: [Freedom of Information and Protection of Privacy Act, section 69]

(a) broadens the definition of "information-sharing agreement" and clarifies the definition of "privacy impact assessment",

(b) is consequential to subsection (5) of this section, as repealed and replaced by this Bill,

(c) sets out rules respecting privacy impact assessments, information-sharing agreements, common or integrated programs or activities and data-linking initiatives, and

(d) requires the minister responsible for the Act, in consultation with the commissioner, to establish an information-sharing code of practice as set out.

SECTION 26: [Freedom of Information and Protection of Privacy Act, section 69.2]

SECTION 27: [Freedom of Information and Protection of Privacy Act, section 71]

(a) requires the head of a public body to establish categories of records and sets out the rules respecting personal information in those records, and

(b) replaces a word for consistency of language.

SECTION 28: [Freedom of Information and Protection of Privacy Act, sections 71.1, 73.1 and 73.2]

SECTION 29: [Freedom of Information and Protection of Privacy Act, section 76]

(a) authorizes the Lieutenant Governor in Council to make regulations respecting the written documentation that confirms that a program or activity is a common or integrated program or activity and to make regulations defining any word or expression used but not defined in the Act,

(b) authorizes the Lieutenant Governor in Council to make regulations as set out after consultation with the commissioner, and

(c) provides that a regulation made under subsection (2.1) of this section, as added by this Bill, may provide differently for different classes of public bodies.

SECTION 30: [Freedom of Information and Protection of Privacy Act, section 77] is consequential to the repeal of section 66 (3) by this Bill.

SECTION 31: [Freedom of Information and Protection of Privacy Act, Schedule 1] repeals and replaces a definition and adds new definitions.

SECTION 32: [Child, Family and Community Service Act, section 74]

SECTION 33: [E-Health (Personal Health Information Access and Protection of Privacy) Act, section 15] replaces the phrase "record linkage" with a phrase that is defined in the Freedom of Information and Protection of Privacy Act, as added by this Bill.

SECTION 34: [E-Health (Personal Health Information Access and Protection of Privacy) Act, section 18]

(a) is consequential to the repeal of section 33.2 (b) of the Freedom of Information and Protection of Privacy Act by this Bill,

(b) adds purposes to section 18 (2) of this Act respecting which an administrator may disclose personal health information inside or outside Canada, consequential to the addition of those purposes to section 33.1 of the Freedom of Information and Protection of Privacy Act by this Bill, and

(c) clarifies that sections 14 and 19 of this Act does not apply to disclosure of health information under section 18 of this Act.

SECTION 35: [Family Maintenance Enforcement Act, section 43] is consequential to the repeal of section 33.2 (k) of the Freedom of Information and Protection of Privacy Act, and the addition of section 33.1 (1) (s) to that Act, by this Bill.

SECTION 36: [Family Relations Act, sections 3 and 100] is consequential to the repeal of section 33.2 (k) of the Freedom of Information and Protection of Privacy Act, and the addition of section 33.1 (1) (s) to that Act, by this Bill.