eCaseNote 2015 No. 03

Newfoundland and Labrador, a Leap Ahead? Access to Information and Protection of Privacy Act, 2015

Access to Information and Protection of Privacy Act, 2015, SNL2015, c A-1.2

Pursuant to recommendations released in 2014, an extensive overhaul of the Access to Information and Protection of Privacy Act (“ATIPPA”) was assented to on June 1, 2015. Significant amendments were reflected in a new purpose section, which now specifies the goals of increased transparency and accountability, and the importance of an independent and multi-purpose oversight agency. Highlights of these changes include:

Overriding Public Interest. An overriding public interest provision was added, which states that a public body’s discretionary ability to refuse disclosure, “shall not apply where it is clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception”.

Expanded Role and Improved Independence of Commissioner. The legislation bestows increased powers and discretion upon the Information and Privacy Commissioner (the “commissioner”). The public body’s previous unilateral ability to extend time limits is now subject to approval by the commissioner. Due to issues surrounding previous compliance with commissioner recommendations, ATIPPA now states that if a public body wishes to disregard the commissioner’s recommendation to grant access to information or correct personal information, the head must apply within 10 business days to receive a court declaration. This adds another level of accountability and independence to the process. The commissioner may also file an enforceable court order where the head of a public body fails to comply within 15 business days after receipt of a recommendation or fails to apply for a declaration.

In addition, a new “extraordinary circumstances” provision provides for more individualized responses, in which the commissioner can decide to vary complaint and response procedures, including time limits, when it is necessary and reasonable. ATIPPA also extends the commissioner’s investigative powers, and allows the commissioner to monitor and audit practices and procedures of public bodies, consult with experts, engage in research, and establish and implement practices and procedures to ensure efficient and timely compliance. Interestingly, ATIPPA also allows the commissioner to review documents claimed to be protected by solicitor-client privilege. Further, a minister must consult with the commissioner on a proposed Bill that could affect access to information or protection of privacy. One concern throughout many Canadian jurisdictions is the independence of the commissioner. Now, before the commissioner is appointed, an applicant roster must be developed by a more independent selection committee. The commissioner also has increased job security, with increased terms increased from two to six years, with the possibility of reappointment for another six years, and salary is now also fixed at 75% of the salary of a Provincial Court judge.

Reduced Timelines. Amendments also claim to provide an expedited process. A final response now has to be provided by the public body within 20 business days, reduced from 30 days. However, since it is now “business days” and it was previously “days”, this will still take about a month. However, the timeframe should be reduced since, as stated, the public body must apply to the commissioner within 15 business days for time limit extensions. This addresses public body abuse and ability to ignore time limits without consequences. In addition, third party notifications and public body requests to disregard complaints will not suspend the 20 business day response time. Overall, there is a reduction from 60 days to 30 business days for an informal resolution and 120 days to 65 business days for a formal investigative report by the commissioner. Corresponding decreases are also reflected in the amount of time an applicant has to make a complaint, representation or appeal.

Limited Exceptions. The “Cabinet confidences” exception to disclosure now excludes factual or background material prepared for Cabinet. Public bodies can refuse to disclose cabinet records or information that would reveal the substance of Cabinet deliberations, but the Executive Council Clerk now has the ability to disclose this information if the public interest outweighs the reason for the exception. Consultations or deliberations involving officers or employees of a public body, a minister or the staff of a minister are no longer exceptions to disclosure.

Protection of Privacy Provisions. Amendments to the protection of personal information provisions expand upon reasonable steps a public body should take to protect against theft and unlawful disclosure. Affected individuals must be notified at the “first reasonable opportunity” when information is stolen, lost, unlawfully disposed of, disclosed or accessed by an unlawful person. The public body does not have to provide notification if it does not create a risk of significant harm to the individual. The potential for abuse is minimized, however, as the public body would have to inform the commissioner, who may then recommend the individual be informed. A minister must also provide for a preliminary or privacy impact assessment during development of a departmental program on court declaration or order.

Increased Communication. ATIPPA also increases communication with both the applicant and public. Public bodies have to designate a coordinator who is responsible to communicate with applicants and third parties throughout the process. Amendments also provide for an advisory response within 10 days of the receipt of a request, and further responses if delays become known throughout the process. The commissioner can inform the public from time to time of apparent deficiencies in the system and must create an educational program. An annual report must now include “persistent failures of public bodies to fulfil the duty to assist applicants”, including responding to requests in a timely manner. The commissioner also has the power to issue special reports to the House of Assembly and may issue public reports of investigations and audits.

The foundation has now been laid for a leading regime in transparency and accountability. We will now have to wait and see whether the procedural changes will actually result in an effective and independent access to information system, and thus, increased public confidence to follow.

The comments contained in this eCaseNote provide general information only and should not be construed as legal advice or opinion. For more information or specific advice on matters of interest, please call our offices at (709) 579-2081.