29

 


 

First Session, 47th General Assembly

61 Elizabeth II, 2012

BILL 29

AN ACT TO AMEND THE ACCESS TO INFORMATION AND PROTECTION OF PRIVACY ACT

Received and Read the First Time...................................................................................................

Second Reading.................................................................................................................................

Committee............................................................................................................................................

Third Reading.....................................................................................................................................

Royal Assent......................................................................................................................................

HONOURABLE FELIX COLLINS

Minister of Justice and Attorney General

Ordered to be printed by the Honourable House of Assembly

 

EXPLANATORY NOTES

This Bill would amend the Access to Information and Protection of Privacy Act.

The proposed amendments would implement the majority of the legislative recommendations of the Cummings Report, Review of the Access to Information and Protection of Privacy Act, and modify other recommendations.

The Bill also contains proposed amendments engendered by the examination of matters discussed in the Cummings Report.

The Bill would

         exempt records relating to law enforcement investigations which have not been completed or which would reveal confidential sources of information in law enforcement investigations from the application of the Act;

         clarify that the right of access to a record does not extend to records created for the purpose of briefing a member of the Executive Council assuming responsibility for a department, secretariat or agency, or a record prepared to brief members of the Executive Council in preparation for a sitting of the House of Assembly;

         include a listing of Cabinet records which would reflect the listing found in the Management of Information Act, which records would be prohibited from disclosure by the head of a public body;

         amend the Act respecting disclosure of information relating to workplace investigations;

         amend the Act to add a new provision which would protect a wider scope of business information from disclosure;

         amend the Act to add a provision to protect from disclosure that information which may be harmful to the labour relations interests of a public body as an employer;

         amend the Act to add a harm test for the disclosure of personal information which would be consistent with legislation in other Canadian jurisdictions; and

         amend the Act to clarify that where there is a dispute relating to a claim of solicitor and client privilege, the issue shall be referred to the Trial Division for resolution.

A BILL

AN ACT TO AMEND THE ACCESS TO INFORMATION AND PROTECTION
OF PRIVACY ACT

Analysis


††††††† 1. S.2 Amdt
Definitions

††††††† 2. S.5 Amdt.
Application

††††††† 3.†† S.7 Amdt.
Right of access

††††††† 4. S.14 Amdt.
Published material

††††††† 5. S.16 R&S
Extension of time limit

††††††† 6. S.18 R&S
Cabinet confidences

††††††† 7. S.19 Amdt.
Local public body confidences

††††††† 8. S.20 Amdt.
Policy advice or recommendations

††††††† 9. S.22 Amdt.
Disclosure harmful to law enforcement

††††† 10. Ss.22.1 & 22.2 Added
22.1 Confidential
††††††† evaluations
22.2 Information from aworkplace
††††††† investigation

††††† 11. S.24 Amdt.
Disclosure harmful to the financial or economic interests of a public body

††††† 12.†† S. 26.1 Added
Disclosure harmful to labour relations interests of public body as employer

††††† 13. S.27 R&S
Disclosure harmful to business interests of a third party

††††† 14. S.28 Amdt.
Notifying the third party

††††† 15. S.30 R&S
Disclosure harmful to personal privacy

††††† 16. S.33 Amdt.
How personal information is to be collected

††††† 17. S.35 Amdt.
Right to request correction of personal information

††††† 18. S.38.1 Added
Use of personal information by post-secondary educational bodies

††††† 19. S.39 Amdt.
Disclosure of personal information

††††† 20.†† S.43 Amdt.
Review and appeal

††††† 21. S.43.1 Added
Power of a public body to disregard requests

††††† 22.†† S.44Amdt.
Complaints

††††† 23. S.46 Amdt.
Informal resolution

††††† 24. S.47 Amdt.
Representation on review

††††† 25. S.48 R&S
Time limit for review

††††† 26. S.49 Amdt.
Report

††††† 27. S.50 Amdt.
Response of public body

††††† 28. S.52 R&S
Production of documents

††††† 29.†† S.53 R&S
Right of entry

††††† 30.†† S.60 Amdt.
Appeal to Trial Division

††††† 31. S.66 R&S
Designation of head by local public body

††††† 32.†† S.73 Amdt.
Regulations

††††† 33. SNL1991 c22 Amdt.

††††† 34.†† Transitional


Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

SNL2002 cA-1.1
as amended

††††††† 1. (1) Subparagraph 2(i)(ii) of the Access to Information and Protection of Privacy Act is repealed and the following substituted:

†††††††††††††††††††† (ii)investigations, inspections or proceedings conducted under the authority of or for the purpose of enforcing an enactment which lead to or could lead to a penalty or sanction being imposed under the enactment;

†††††††††††† (2)Subparagraph 2(o)(ix) of the Act is repealed and the following substituted:

††††††††††††††††††† (ix)the individual's personal views or opinions, except where they are about someone else;

 

††††††† 2. Subsection 5(1) of the Act is amended by deleting the word "or" at the end of paragraph (j), by deleting the period at the end of paragraph (k) and substituting a semi-colon, and by adding immediately after that paragraph the following:

††††††††††††† (l) a record relating to an investigation by the Royal Newfoundland Constabulary if all matters in respect of the investigation have not been completed; or

††††††††††† (m) a record relating to an investigation by the Royal Newfoundland Constabulary that would reveal the identity of a confidential source of information or reveal information provided by that source with respect to a law enforcement matter.

 

††††††† 3. Section 7 of the Act is amended by adding immediately after subsection (3) the following:

†††††††††††† (4)The right of access does not extend

†††††††††††† (a)to a record created solely for the purpose of briefing a member of the Executive Council with respect to assuming responsibility for a department, secretariat or agency; or

†††††††††††† (b)to a record created solely for the purpose of briefing a member of the Executive Council in preparation for a sitting of the House of Assembly.

†††††††††††† (5)Paragraph (4)(a) does not apply to a record described in that paragraph if 5 years or more have elapsed since the member of the Executive Council was appointed as the minister responsible for the department, secretariat or agency.

†††††††††††† (6)Paragraph (4)(b) does not apply to a record described in that paragraph if 5 years or more has elapsed since the beginning of the sitting with respect to which the record was prepared.

 

††††††† 4. Paragraph 14(1)(a) of the Act is repealed and the following substituted:

†††††††††††† (a)is published and is available to the public without cost or for purchase; or

 

††††††† 5. Section 16 of the Act is repealed and the following substituted:

Extension of time limit

††††† 16. (1) The head of a public body may extend the time for responding to a request for up to an additional 30 days where

†††††††††††† (a)the applicant does not give sufficient details to enable the public body to identify the requested record;

†††††††††††† (b)a large number of records is requested or must be searched, and responding within the time period in section 11 would interfere unreasonably with the operations of the public body;

†††††††††††† (c)notice is given to a third party under section 28; or

†††††††††††† (d)more time is needed to consult with a third party or other public body before the head can decide whether or not to give the applicant access to a requested record.

†††††††††††† (2)In addition to the authority under subsection (1), with the approval of the commissioner, the head of a public body may extend the time for responding to a request as follows:

†††††††††††† (a)where one or more of the circumstances described in subsection (1) apply for a period of longer than the 30 days permitted under that subsection;

†††††††††††† (b)where multiple concurrent requests have been made by the same applicant or multiple concurrent requests have been made by 2 or more applicants who work for the same organization or who work in association with each other; or

†††††††††††† (c)where the commissioner otherwise considers that it is fair and reasonable to do so, as the commissioner considers appropriate.

†††††††††††† (3)Where the time limit for responding is extended under subsection (1) or (2), the head of the public body shall notify the applicant in writing

†††††††††††† (a)of the reason for the extension; and

†††††††††††† (b)when a response can be expected.

†††††††††††† (4)In addition to the requirements of subsection (3), where the time limit has been extended without the approval of the commissioner, the head of the public body shall notify the applicant in writing that the applicant may make a complaint under section 44 to the commissioner.

 

††††††† 6. Section 18 of the Act is repealed and the following substituted:

Cabinet confidences

††††† 18. (1) In this section

†††††††††††† (a)"cabinet record" means

††††††††††††††††††††† (i)advice, recommendations or policy considerations submitted or prepared for submission to the Cabinet,

†††††††††††††††††††† (ii)draft legislation or regulations submitted or prepared for submission to the Cabinet,

††††††††††††††††††† (iii)a memorandum, the purpose of which is to present proposals or recommendations to the Cabinet,

††††††††††††††††††† (iv)a discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for the Cabinet,

†††††††††††††††††††† (v)an agenda, minute or other record of Cabinet recording deliberations or decisions of the Cabinet,

††††††††††††††††††† (vi)a record used for or which reflects communications or discussions among ministers on matters relating to the making of government decisions or the formulation of government policy,

†††††††††††††††††† (vii)a record created for or by a minister for the purpose of briefing that minister on a matter for the Cabinet,

††††††††††††††††† (viii)a record created during the process of developing or preparing a submission for the Cabinet, or

††††††††††††††††††† (ix)that portion of a record which contains information about the contents of a record within a class of information referred to in subparagraphs (i) to (viii);

†††††††††††† (b)"discontinued cabinet record" means a cabinet record referred to in paragraph (a) the original intent of which was to inform the Cabinet process, but which is neither a supporting Cabinet record nor an official Cabinet record;

†††††††††††† (c)"official cabinet record" means a cabinet record referred to in paragraph (a) which has been prepared for and considered in a meeting of the Cabinet; and

†††††††††††† (d)"supporting cabinet record" means a Cabinet record referred to in paragraph (a) which informs the Cabinet process, but which is not an official cabinet record.

†††††††††††† (2)The head of a public body shall refuse to disclose to an applicant a Cabinet record, including

†††††††††††† (a)an official Cabinet record;

†††††††††††† (b)a discontinued Cabinet record; and

†††††††††††† (c)a supporting Cabinet record.

†††††††††††† (3) The commissioner may review the refusal of a Cabinet record by the head of a public body under subsection (2) except where the decision relates to a Cabinet record which has been certified as an official Cabinet record by the Clerk of the Executive Council or his or her delegate.

†††††††††††† (4)Where a question arises as to whether a Cabinet record is an official Cabinet record, the certificate of the Clerk of Executive Council or his or her delegate stating that the record is an official Cabinet record is conclusive of the question.

†††††††††††† (5) The delegate of the Clerk of the Executive Council referred to in subsections (3) and (4) shall be limited to the Deputy Clerk of the Executive Council and the Secretary of the Treasury Board.

†††††††††††† (6)An applicant may appeal a decision of the head of a public body respecting Cabinet records referred to subsection (2), except an official Cabinet record, to the commissioner or the Trial Division under section 43.

†††††††††††† (7)An applicant may appeal a decision of the head of a public body respecting a Cabinet record which is an official Cabinet record directly to the Trial Division.

†††††††††††† (8)This section does not apply to

†††††††††††† (a)information in a record that has been in existence for 20 years or more; or

†††††††††††† (b)information in a record of a decision made by the Cabinet on an appeal under an Act.

 

††††††† 7. Paragraph 19(2)(a) of the Act is repealed and the following substituted:

†††††††††††† (a)the draft of a resolution, by-law or other legal instrument, a private Bill or the subject matter of deliberations has been considered, other than incidentally, in a meeting open to the public; or

 

††††††† 8. Subsection 20(1) of the Act is repealed and the following substituted:

Policy advice or recommendations

††††† 20. (1) The head of a public body may refuse to disclose to an applicant information that would reveal

†††††††††††† (a)advice, proposals, recommendations, analyses or policy options developed by or for a public body or minister;

†††††††††††† (b)the contents of a formal research report or audit report that in the opinion of the head of the public body is incomplete unless no progress has been made on it for more than 3 years;

†††††††††††† (c)consultations or deliberations involving officers or employees of a public body, a minister or the staff of a minister; or

†††††††††††† (d)draft legislation or regulations.

 

††††††† 9. Paragraph 22(1)(a) of the Act is repealed and the following substituted:

†††††††††††† (a)interfere with or harm a law enforcement matter;

 

††††† 10. The Act is amended by adding immediately after section 22 the following:

Confidential evaluations

†† 22.1 The head of a public body may refuse to disclose to an applicant personal information that is evaluative or opinion material, provided explicitly or implicitly in confidence, and compiled for the purpose of

†††††††††††† (a)determining suitability, eligibility or qualifications for employment or for the awarding of contracts or other benefits by a public body;

†††††††††††† (b)determining suitability, eligibility or qualifications for admission to an academic program of an educational body;

†††††††††††† (c)determining suitability, eligibility or qualifications for the granting of tenure at a post-secondary educational body;

†††††††††††† (d)determining suitability, eligibility or qualifications for an honour or award to recognize outstanding achievement or distinguished service; or

†††††††††††† (e)assessing the teaching materials or research of an employee of a post-secondary educational body or of a person associated with an educational body.

Information from a workplace investigation

†† 22.2 (1) For the purpose of this section

†††††††††††† (a)"harassment" means comments or conduct which are abusive, offensive, demeaning or vexatious that are known, or ought reasonably to be known, to be unwelcome and which may be intended or unintended;

†††††††††††† (b)"party" means a complainant, respondent or a witness who provided a statement to an investigator conducting a workplace investigation; and

†††††††††††† (c)"workplace investigation" means an investigation related to

††††††††††††††††††††† (i)the conduct of an employee in the workplace,

†††††††††††††††††††† (ii)harassment, or

††††††††††††††††††† (iii)events related to the interaction of an employee in the public body's workplace with another employee or a member of the public

which may give rise to progressive discipline or corrective action by the public body employer.

†††††††††††† (2)The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of records collected or made during a workplace investigation.

†††††††††††† (3)The head of a public body shall disclose to an applicant who is a party to a workplace investigation the information referred to in subsection (2).

†††††††††††† (4)Notwithstanding subsection (3), where a party referred to in that subsection is a witness in a workplace investigation, the head of a public body shall disclose only the information referred to in subsection (2) which relates to the witness' statements provided in the course of the investigation.

 

††††† 11. Subsection 24(1) of the Act is repealed and the following substituted:

Disclosure harmful to the financial or economic interests of a public body

††††† 24. (1) The head of a public body may refuse to disclose to an applicant information which could reasonably be expected to disclose

†††††††††††† (a)trade secrets of a public body or the government of the province;

†††††††††††† (b)financial, commercial, scientific or technical information that belongs to a public body or to the government of the province and that has, or is reasonably likely to have, monetary value;

†††††††††††† (c)plans that relate to the management of personnel of or the administration of a public body and that have not yet been implemented or made public;

††††††††††† (d)information, the disclosure of which could reasonably be expected to result in the premature disclosure of a proposal or project or in significant loss or gain to a third party;

††††††††††† (e)scientific or technical information obtained through research by an employee of a public body, the disclosure of which could reasonably be expected to deprive the employee of priority of publication;

††††††††††††† (f)positions, plans, procedures, criteria or instructions developed for the purpose of contractual or other negotiations by or on behalf of the government of the province or a public body, or considerations which relate to those negotiations;

†††††††††††† (g)information, the disclosure of which could reasonably be expected to prejudice the financial or economic interest of the government of the province or a public body; or

†††††††††††† (h)information, the disclosure of which could reasonably be expected to be injurious to the ability of the government of the province to manage the economy of the province.

 

††††† 12. The Act is amended by adding immediately after section 26 the following:

Disclosure harmful to labour relations interests of public body as employer

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

†††††††††††† (a)labour relations information of the public body as an employer that is prepared or supplied, implicitly or explicitly, in confidence, and is treated consistently as confidential information by the public body as an employer; or

†††††††††††† (b)labour relations information the disclosure of which could reasonably be expected to

††††††††††††††††††††† (i)harm the competitive position of the public body as an employer or interfere with the negotiating position of the public body as an employer,

†††††††††††††††††††† (ii)result in significant financial loss or gain to the public body as an employer, or

††††††††††††††††††† (iii)reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer, staff relations specialist or other person or body appointed to resolve or inquire into a labour relations dispute, including information or records prepared by or for the public body in contemplation of litigation or arbitration or in contemplation of a settlement offer.

†††††††††††† (2)Subsection (1) does not apply where the information is in a record that is in the custody or control of the Provincial Archives of Newfoundland and Labrador or the archives of a public body and that has been in existence for 50 years or more.

 

††††† 13. Section 27 of the Act is repealed and the following substituted:

Disclosure harmful to business interests of a third party

††††† 27. (1) The head of a public body shall refuse to disclose to an applicant information that would reveal

†††††††††††† (a)trade secrets of a third party;

†††††††††††† (b)commercial, financial, labour relations, scientific or technical information of a third party, that is supplied, implicitly or explicitly, in confidence and is treated consistently as confidential information by the third party; or

†††††††††††† (c)commercial, financial, labour relations, scientific or technical information the disclosure of which could reasonably be expected to

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

†††††††††††††††††††† (ii)result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied,

††††††††††††††††††† (iii)result in significant financial loss or gain to any person or organization, or

††††††††††††††††††† (iv)reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute.

†††††††††††† (2)The head of a public body shall refuse to disclose to an applicant information that was obtained on a tax return, gathered for the purpose of determining tax liability or collecting a tax, or royalty information submitted on royalty returns, except where that information is non-identifying aggregate royalty information.

†††††††††††† (3)Subsections (1) and (2) do not apply where

†††††††††††† (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 Provincial Archives of Newfoundland and Labrador or the archives of a public body and that has been in existence for 50 years or more.

 

††††† 14. (1) Subsection 28(1) of the Act is repealed and the following substituted:

Notifying the third party

††††† 28. (1) Where the head of a public body is considering whether to give access to a record that the head has reason to believe contains information that might be exempted from disclosure under section 27, the head shall give the third party a written notice under subsection (3).

†††††††††††† (2)Subsection 28(2) of the Act is repealed.

†††††††††††† (3)Section 28 of the Act is amended by adding immediately after subsection (4) the following:

†††††††††††† (5)Notwithstanding subsection (1), where a third party has consented to or requested the disclosure, the third party is considered to have waived the request for notice under that subsection.

 

††††† 15. Section 30 of the Act is repealed and the following substituted:

Disclosure harmful to personal privacy

††††† 30. (1) The head of a public body shall refuse to disclose personal information to an applicant where the disclosure would be an unreasonable invasion of a third party's personal privacy.

†††††††††††† (2)A disclosure of personal information is not an unreasonable invasion of a third party's personal privacy where

†††††††††††† (a)the applicant is the individual to whom the information relates;

†††††††††††† (b)the third party to whom the information relates has, in writing, consented to or requested the disclosure;

†††††††††††† (c)there are compelling circumstances affecting a personís health or safety and notice of disclosure is mailed to the last known address of the third party to whom the information relates;

†††††††††††† (d)an Act or regulation of the province or of Canada authorizes the disclosure;

†††††††††††† (e)the disclosure is for a research or statistical purpose and is in accordance with section 41;

††††††††††††† (f)the information is about a third party's position, functions or salary range as an officer, employee or member of a public body or as a member of a minister's staff;

†††††††††††† (g)the disclosure reveals financial and other details of a contract to supply goods or services to a public body;

†††††††††††† (h)the disclosure reveals the opinions or views of a third party given in the course of performing services for a public body, except where they are given in respect of another individual;

††††††††††††† (i)public access to the information is provided under the Financial Administration Act;

††††††††††††† (j)the information is about expenses incurred by a third party while travelling at the expense of a public body;

†††††††††††† (k)the disclosure reveals details of a licence, permit or a similar discretionary benefit granted to a third party by a public body, not including personal information supplied in support of the application for the benefit;

††††††††††††† (l)the disclosure reveals details of a discretionary benefit of a financial nature granted to a third party by a public body, not including

††††††††††††††††††††† (i)personal information that is supplied in support of the application for the benefit, or

†††††††††††††††††††† (ii)personal information that relates to eligibility for income and employment support under the Income and Employment Support Act or to the determination of income or employment support levels;

††††††††††† (m)the personal information is about an individual who has been dead for 20 years or more; or

†††††††††††† (n)the disclosure is not contrary to the public interest as described in subsection (3) and reveals only the following personal information about a third party:

††††††††††††††††††††† (i)attendance at or participation in a public event or activity related to a public body, including a graduation ceremony, sporting event, cultural program or club, or field trip, or

†††††††††††††††††††† (ii)receipt of an honour or award granted by or through a public body.

†††††††††††† (3)The disclosure of personal information under paragraph (2)(n) is an unreasonable invasion of personal privacy where the third party whom the information is about has requested that the information not be disclosed.

†††††††††††† (4)A disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy where

†††††††††††† (a)the personal information relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

†††††††††††† (b)the personal information is an identifiable part of a law enforcement record, except to the extent that the disclosure is necessary to dispose of the law enforcement matter or to continue an investigation;

†††††††††††† (c)the personal information relates to employment or educational history;

†††††††††††† (d)the personal information was collected on a tax return or gathered for the purpose of collecting a tax;

†††††††††††† (e)the personal information consists of an individual's bank account information or credit card information;

††††††††††††† (f)the personal information consists of personal recommendations or evaluations, character references or personnel evaluations;

†††††††††††† (g)the personal information consists of the third party's name where

††††††††††††††††††††† (i)it appears with other personal information about the third party, or

†††††††††††††††††††† (ii)the disclosure of the name itself would reveal personal information about the third party; or

†††††††††††† (h)the personal information indicates the third party's racial or ethnic origin or religious or political beliefs or associations.

†††††††††††† (5)In determining under subsections (1) and (4) whether a disclosure of personal information constitutes an unreasonable invasion of a third party's personal privacy, the head of a public body shall consider all the relevant circumstances, including whether

†††††††††††† (a)the disclosure is desirable for the purpose of subjecting the activities of the province or a public body to public scrutiny;

†††††††††††† (b)the disclosure is likely to promote public health and safety or the protection of the environment;

†††††††††††† (c)the personal information is relevant to a fair determination of the applicant's rights;

†††††††††††† (d)the disclosure will assist in researching or validating the claims, disputes or grievances of aboriginal people;

†††††††††††† (e)the third party will be exposed unfairly to financial or other harm;

††††††††††††† (f)the personal information has been supplied in confidence;

†††††††††††† (g)the personal information is likely to be inaccurate or unreliable;

†††††††††††† (h)the disclosure may unfairly damage the reputation of a person referred to in the record requested by the applicant; and

††††††††††††† (i)the personal information was originally provided to the applicant.

 

††††† 16. Paragraphs 33(1)(b) and (c) of the Act are repealed and the following substituted:

†††††††††††† (b)the information may be disclosed to the public body under sections 39 to 42;

†††††††††††† (c)the information is collected for the purpose of

††††††††††††††††††††† (i)determining suitability for an honour or award including an honorary degree, scholarship, prize or bursary,

†††††††††††††††††††† (ii)an existing or anticipated proceeding before a court or a judicial or quasi-judicial tribunal,

††††††††††††††††††† (iii)collecting a debt or fine or making a payment, or

††††††††††††††††††† (iv)law enforcement; or

†††††††††††† (d)collection of the information is in the interest of the individual and time or circumstances do not permit collection directly from the individual.

 

††††† 17. Paragraph 35(6)(b) of the Act is amended by deleting the word "application" and substituting the word "applicant".

 

††††† 18. The Act is amended by adding immediately after section 38 the following:

Use of personal information by post-secondary educational bodies

†† 38.1 (1) Notwithstanding section 38, a post-secondary educational body may, in accordance this section, use personal information in its alumni records for the purpose of its own fundraising activities where that personal information is reasonably necessary for the fundraising activities.

†††††††††††† (2)In order to use personal information in its alumni records for the purpose of its own fundraising activities, a post-secondary educational body shall

†††††††††††† (a)give notice to the individual to whom the personal information relates when the individual is first contacted for the purpose of soliciting funds for fundraising of his or her right to request that the information cease to be used for fundraising purposes;

†††††††††††† (b)periodically and in the course of soliciting funds for fundraising, give notice to the individual to whom the personal information relates of his or her right to request that the information cease to be used for fundraising purposes; and

†††††††††††† (c)periodically and in a manner that is likely to come to the attention of individuals who may be solicited for fundraising, publish a notice of the individual's right to request that the individual's personal information cease to be used for fundraising purposes

††††††††††††††††††††† (i)in an alumni magazine or other publication, and

†††††††††††††††††††† (ii)in a newspaper of general circulation in the province.

†††††††††††† (3)A post-secondary educational body shall, where requested to do so by an individual, cease to use the individual's personal information under subsection (1).

†††††††††††† (4)The use of personal information by a post-secondary educational body under this section shall be limited to the minimum amount of information necessary to accomplish the purpose for which it is used.

 

††††† 19. Subsection 39(1) of the Act is amended by deleting the word "or" at the end of paragraph (r), by deleting the period at the end of paragraph (s) and substituting a semicolon and the word "or", and by adding immediately after that paragraph the following:

††††††††††††† (t)where the disclosure would not be an unreasonable invasion of a third party's personal privacy under section 30;

†††††††††††† (u)to an officer or employee of a public body or to a minister, where the information is necessary for the delivery of a common or integrated program or service and for the performance of the duties of the officer or employee or minister to whom the information is disclosed; or

†††††††††††† (v)to the surviving spouse or relative of a deceased individual where, in the opinion of the head of the public body, the disclosure is not an unreasonable invasion of the deceased's personal privacy.

 

††††† 20. Subsection 43(1) of the Act is repealed and the following substituted:

Review and appeal

††††† 43. (1) A person who makes a request under this Act for access to a record or for correction of personal information may ask the commissioner to review a decision, act or failure to act of the head of the public body that relates to the request, except where the refusal by the head of the public body to disclose records or parts of them is

†††††††††††† (a)due to the record being an official cabinet record under section 18; or

†††††††††††† (b) based on solicitor and client privilege under section 21.

 

††††† 21. The Act is amended by adding immediately after section 43 the following:

Power of a public body to disregard requests

†† 43.1 (1) The head of a public body may disregard one or more requests under subsection 8(1) or 35(1) where

†††††††††††† (a)because of their repetitive or systematic nature, the requests would unreasonably interfere with the operations of the public body or amount to the abuse of the right to make those requests;

†††††††††††† (b)one or more of the requests is frivolous or vexatious; or

†††††††††††† (c)one or more of the requests is made in bad faith or is trivial.

†††††††††††† (2)Where the head of a public body so requests, the commissioner may authorize the head of a public body to disregard a request where, notwithstanding paragraph (1)(a), that the request is not systematic or repetitive if, in the opinion of the commissioner, the request is excessively broad.

†††††††††††† (3)The head of a public body who refuses to give access to a record under this section shall notify the person who made the request, and that notice shall contain the following information:

†††††††††††† (a)that the request is refused because the head of the public body is of the opinion that the request falls under subsection (1) and of the reasons for the refusal;

†††††††††††† (b)that the request is refused because the commissioner has authorized the head of a public body to disregard a request under subsection (2) and of the reasons for the refusal; and

†††††††††††† (c)that the person who made the request may appeal to the commissioner or the Trial Division under section 43.

 

††††† 22. Section 44 of the Act is amended by renumbering it as subsection 44(1) and by adding immediately after that subsection the following:

†††††††††††† (2)The commissioner may investigate and attempt to resolve complaints by an individual who believes on reasonable grounds that his or her personal information has been collected, used or disclosed by a public body in contravention of Part IV.

 

††††† 23. (1) Subsection 46(2) of the Act is repealed and the following substituted:

†††††††††††† (2)Where the commissioner is unable to informally resolve a request for review within 60 days of the request, the commissioner shall review the decision, act or failure to act of the head of the public body, where he or she is satisfied that there are reasonable grounds to do so, and complete a report under section 48.

†††††††††††† (2)Section 46 of the Act is amended by adding immediately after subsection (2) the following:

†††††††††††† (3)The commissioner may decide not to conduct a review where he or she is satisfied that

†††††††††††† (a)the head of a public body has responded adequately to the complaint;

†††††††††††† (b)the complaint has been or could be more appropriately dealt with by a procedure or proceeding other than a complaint under this Act;

†††††††††††† (c)the length of time that has elapsed between the date when the subject-matter of the complaint arose and the date when the complaint was filed is such that a review under this Part would be likely to result in undue prejudice to a person or that a report would not serve a useful purpose; or

†††††††††††† (d)the complaint is trivial, frivolous, vexatious or is made in bad faith.

†††††††††††† (4)Where the commissioner decides not to conduct a review, he or she shall give notice of that decision, together with reasons, to the person who made the complaint and advise the person of his or her right to appeal the decision to the court under section 60 and of the time limit for appeal.

†††††††††††† (5)Section 8.1 of the Evidence Act does not apply to a review conducted by the commissioner under this Part.

 

††††† 24. Paragraph 47(1)(b) of the Act is repealed and the following substituted:

†††††††††††† (b)a third party who was notified under section 28;

††††††††† (b.1)the head of the public body concerned; and

 

††††† 25. Section 48 of the Act is repealed and the following substituted:

Time limit for review

††††† 48. The commissioner shall complete a review and make a report under section 49 within 120 days of receiving the request for review.

 

††††† 26. Subsection 49(2) of the Act is repealed and the following substituted:

†††††††††††† (2)Whether or not the commissioner makes a recommendation to alter the decision, act or failure to act, the report shall include a notice to the person requesting the review of the right to appeal the decision of the public body under section 50 to the Trial Division under section 60 and the time limit for an appeal.

 

††††† 27. Subsection 50(2) of the Act is repealed and the following substituted:

†††††††††††† (2)Whether or not the head of the public body follows the recommendation of the commissioner, the head of the public body shall, in writing, inform the persons who were sent a copy of the report of the right to appeal the decision to the Trial Division under section 60 and of the time limit for an appeal.

 

††††† 28. (1) Section 52 of the Act is repealed and the following substituted:

Production of documents

††††† 52. (1) The commissioner has the powers, privileges and immunities that are or may be conferred on a commissioner under the Public Inquires Act, 2006.

†††††††††††† (2)The commissioner may require any record in the custody or under the control of a public body that the commissioner considers relevant to an investigation to be produced to the commissioner except any record which contains information that is solicitor and client privileged or which is an official cabinet record under section 18.

†††††††††††† (3)The commissioner may examine information in a record that he or she may require under subsection (2), including personal information.

†††††††††††† (4)The head of a public body shall produce to the commissioner a record or a copy of a record required under this section within 14 days notwithstanding ††

†††††††††††† (a)another Act or regulation; or

†††††††††††† (b)a privilege under the law of evidence, except a privilege referred to in subsection (5).

†††††††††††† (5)Subsection (4) does not apply to records which are solicitor and client privileged.

 

††††† 29. Section 53 of the Act is repealed and the following substituted:

Right of entry

††††† 53. Notwithstanding another Act or regulation or any privilege under the law of evidence except solicitor and client privilege, in exercising powers and performing duties under this Act the commissioner has the right

†††††††††††† (a)to enter an office of a public body and examine and make copies of a record in the custody of the public body; and

†††††††††††† (b)to converse in private with an officer or employee of the public body.

 

††††† 30. (1) Section 60 of the Act is amended by adding immediately after subsection (1) the following:

††††††††† (1.1)Where an applicant or the commissioner wishes to appeal a decision of the head of a public body who refuses to disclose

†††††††††††† (a)a record which is an official Cabinet record under section 18; or

†††††††††††† (b)a record on the basis of solicitor and client privilege under section 21,

that appeal shall be made directly to the Trial Division within 30 days after the applicant or the commissioner received the decision.

††††††††† (1.2)The solicitor and client privilege of the records in dispute shall not be affected by the disclosure to the Trial Division.

†††††††††††† (2)Section 60 of the Act is amended by adding immediately after subsection (2) the following:

††††††††† (2.1)An appeal may also be commenced by an applicant under this section in accordance with subsection 43.1(3).

†††††††††††† (3)Subsection 60(5) of the Act is repealed and the following substituted:

†††††††††††† (5)A copy of the notice of appeal shall be served by the appellant on the commissioner and the minister responsible for this Act.

 

††††† 31. Section 66 of the Act is repealed and the following substituted:

Designation of head by local public body

††††† 66. A local public body shall, by by-law, resolution or other instrument, designate a person or group of persons as the head of the local public body for the purpose of this Act, and once designated, the local public body shall advise the minister responsible for this Act of the designation.

 

††††† 32. Paragraph 73(l) of the Act is repealed and the following substituted:

††††††††††††† (l)providing for the retention and disposal of records by a public body if the Management of Information Act does not apply to the public body;

SNL1991 c22 Amdt.

††††† 33. Section 19 of the Auditor General Act is repealed and the following substituted:

Prohibition

††††† 19. (1) Notwithstanding sections 17 and 18, the auditor general shall not be permitted to access records referred to in section 18 of the Access to Information and Protection of Privacy Act where the Clerk of the Executive Council or his or her delegate has certified that release of those records would involve the disclosure of

†††††††††††† (a)the deliberations of the Executive Council or a committee of the Executive Council; or

†††††††††††† (b)the proceedings of the Executive Council, or a committee of the Executive Council, relating to matters of a secret or confidential nature and would be injurious to the public interest.

†††††††††††† (2) The delegate of the Clerk of the Executive Council referred to in subsection (1) shall be limited to the Deputy Clerk of the Executive Council and the Secretary of the Treasury Board.

†††††††††††† (3) Notwithstanding sections 17 and 18, the auditor general shall not be permitted to access information the disclosure of which may be refused under section 22 of the Access to Information and Protection of Privacy Act and which is certified as such by the Minister of Justice.

†††††††††††† (4) Where a certificate has been issued to the auditor general under this section, the auditor general shall not require the information to be disclosed, but shall report the issuance of the certificate to the House of Assembly.

Transitional

††††† 34. (1) Where, on the coming into force of this Act, a public body, the commissioner or a judge has begun to consider, review or decide on a matter but has not completed the consideration or review or made a decision on it, the Access to Information and Protection of Privacy Act as it existed before the coming into force of this Act shall apply to that consideration, review or decision.

††††† (2) Where, before the coming into force of this Act, an application had been made to a head of a public body, the commissioner or a judge but the head of the public body, the commissioner or judge had not yet begun to consider, review or decide upon the matter, the application shall be considered, reviewed or decided upon in accordance with the Access to Information and Protection of Privacy Act as amended by this Act.