GUIDE TO LA FOIP The Local Authority Freedom of Information and Protection of Privacy Act Chapter 1 Purposes and Scope of LA FOIP
Table of Contents Overview.......................................................................................................................................................................1 Quasi-Constitutional Status ..................................................................................................................................1 The Purposes of LA FOIP ........................................................................................................................................2 Object or Purpose Clause ..................................................................................................................................2 The Scope of LA FOIP ..............................................................................................................................................6 Local Authority.......................................................................................................................................................6 Subsection 2(f): Definition of a local authority ...............................................................................7 LA FOIP Applies .....................................................................................................................................................9 Section 5: Possession or Control ..........................................................................................................9 Section 23: Personal Information ...................................................................................................... 15 LA FOIP Does Not Apply ................................................................................................................................. 16 Subsection 3(1)(a) ................................................................................................................................... 16 Information Services Corporation (ISC) ........................................................................................... 18 Subsection 3(1)(b) ................................................................................................................................... 20 Subsection 3(1)(c).................................................................................................................................... 22 Subsection 23(1.1) .................................................................................................................................. 23 Section 22 .................................................................................................................................................. 26 Subsection 22(1) ....................................................................................................................................... 27 Subsection 22(2) ....................................................................................................................................... 29 Subsection 22(3) ....................................................................................................................................... 29 Section 4: Existing Rights Preserved ........................................................................................................... 31 Subsection 4(a)......................................................................................................................................... 33 Subsection 4(b) ........................................................................................................................................ 35 Subsection 4(c)......................................................................................................................................... 35 Subsection 4(d) ........................................................................................................................................ 37 Subsection 4(e)......................................................................................................................................... 38
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 1 OVERVIEW This Chapter explains the purposes and scope of The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP). What follows is non-binding guidance. Every matter should be considered on a case-by-case basis. This guidance is not intended to be an exhaustive authority on the interpretation of these provisions. Local authorities may wish to seek legal advice when deciding on how to interpret the Act. Local authorities should keep section 51 of LA FOIP in mind. Section 51 places the burden of proof for establishing that access to a record may or must be refused on the local authority. For more on the burden of proof, see the Guide to LA FOIP, Chapter 2, “Administration of LA FOIP”. This is a guide. QUASI-CONSTITUTIONAL STATUS In 1993, The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) was proclaimed. This law is similar to The Freedom of Information and Protection of Privacy Act (FOIP) but applies to “local authorities” such as schools, universities, regional health authorities, municipalities, and library boards as well as any local authorities prescribed in the Appendix at Parts I and II of The Local Authority Freedom of Information and Protection of Privacy Regulations. The tests, criteria and interpretations established in this Chapter reflect the precedents set by the current and/or former Information and Privacy Commissioners in Saskatchewan through the issuing of Review Reports. Court decisions from Saskatchewan affecting The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) will be followed. Where this office has not previously considered a section of LA FOIP, the Commissioner looked to other jurisdictions for guidance. This includes other Information and Privacy Commissioners’ Orders, Reports and/or other relevant resources. In addition, court decisions from across the country are relied upon where appropriate. This Chapter will be updated regularly to reflect any changes in precedent. This office will update the footer to reflect the last update. Using the electronic version directly from our website will ensure you are always using the most current version.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 2 The Supreme Court of Canada has interpreted Acts, such as LA FOIP, as quasi-constitutional legislation. It follows that as fundamental rights, the rights to access and to privacy are interpreted generously, while the exceptions to these rights must be understood strictly.1 The phrase quasi-constitutional implies that certain rights, such as the right to access information held by local authorities, are fundamentally important in their nature because they reflect primary assumptions about the relationship between citizen and state. Though the right to access information is not entrenched in the Canadian Charter of Rights and Freedoms, this quasi-constitutional right is protected by legislation such as LA FOIP.2 A privileged status is afforded access and privacy legislation wherein it is typically paramount to other legislation. The importance of the rights protected by this legislation must always be borne in mind whenever considering any decisions which impact upon these rights. As the Privy Council has stated about quasi-constitutional Acts: Whether the quasi-constitutional status of these Acts derives from one of their provisions or from court decisions, the justification for it is the same. These Acts express values that are very important in Canada. Any derogation from them must be explicit. The requirement of explicit derogation protects the values expressed in those Acts to the maximum extent possible, short of entrenching those values in the Constitution. It also ensures accountability to the public for any decision to derogate.3 THE PURPOSES OF LA FOIP Object or Purpose Clause LA FOIP does not have an object or purpose clause. In the absence of an explicit purpose clause in LA FOIP, the Information and Privacy Commissioner (IPC) is required to infer the Legislative Assembly’s purpose in designing such an instrument. 1 Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Access to Information and Protection of Privacy in Canadian Democracy, May 5, 2009, also cited in Office of the Saskatchewan Information and Privacy Commissioner (SK OIPC) Review Report F-2010-002 at [44]. 2 SK OIPC Review Report F-2010-002 at [45]. 3 Privy Council Office, Guide to Making Federal Acts and Regulations, 2nd Ed., modified: 2017.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 3 Both LA FOIP and The Freedom of Information and Protection of Privacy Act started out as consecutive Bills receiving first reading in the Legislative Assembly on April 19, 1991.4 On June 18, 1991, the Lieutenant Governor spoke to prorogation and stated: Widespread consultations also revealed a significant element of demand for a less partisan government, the protection of democratic rights, and the accountability of elected governments. This spring the rules of the Legislative Assembly were changed, and the first Speaker elected, to respond to the first of these concerns. The government’s comprehensive package of legislation, including The Referendum and Plebiscite Act, The Freedom of Information and Protection of Privacy Act, and The Local Authority Freedom of Information and Protection of Privacy Act, are reforms introduced to make government more open and allow people to play a more direct role in the government....Finally, the two freedom of information Acts provide the public with the right to know the activities of government as it touches their personal lives....5 The IPC has, in the past, also been guided by decisions of the Saskatchewan Court of Appeal and the Saskatchewan Court of King’s Bench. In Amendt v. Canada Life Assurance Co., 1999 CanLII 12560 (SK KB) at [43], Goldenberg J. observed: The right of persons to apply for access to information in the hands of a government agency has no basis in common law. It is purely statutory. The Act is a code unto itself. The code sets out a detailed method for applications, reviews, and ultimately for appeals to the Court of Queen’s Bench. Absent compliance with the process contained therein, this Court has no jurisdiction to entertain the matter.6 In General Motors Acceptance Corp. of Canada v. Saskatchewan Government Insurance, 1993 CanLII 9128 (SK CA) at [11], the Saskatchewan Court of Appeal stated the following: The Act’s basic purpose reflects a general philosophy of full disclosure unless information is exempted under clearly delineated statutory language. There are specific exemptions from disclosure set forth in the Act, but these limited exemptions do not obscure the basic policy that disclosure, not secrecy is the dominant objective of the Act. That is not to say that the statutory exemptions are of little or no significance. We recognize that they are intended to have a meaningful reach and application. The Act provides for 4 SK OIPC Review Report F-2012-001/LA-2012-001 at [47]. 5 Saskatchewan Hansard, June 18, 1991, available at http://docs.legassembly.sk.ca/legdocs/Legislative%20Assembly/Hansard/21L4S/910618e.PDF. See also SK OIPC Review Reports F-2012-001/LA-2012-001 at [47] and LA-2012-003 at [27]. 6 Amendt v. Canada Life Assurance Co., 1999 CanLII 12560 (SK KB) at [43]. See also SK OIPC Review Report F-2004-003 at [7].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 4 specific exemptions to take care of potential abuses. There are legitimate privacy interests that could be harmed by release of certain types of information. Accordingly, specific exemptions have been delineated to achieve a workable balance between the competing interests. The Act’s broad provisions for disclosure, coupled with specific exemptions, prescribe the “balance” struck between an individual’s right to privacy and the basic policy of opening agency records and action to public scrutiny.7 LA FOIP closely corresponds to provisions in the federal Access to Information Act. The purpose of the Access to Information Act is described as follows: 2(1) The purpose of this Act is to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.8 As stated by Mr. Justice La Forest in Dagg v. Canada (Minister of Finance), 1997: The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.9 In Legislation on Public Access to Government Documents, the reasons for access to information legislation are discussed. The author, Honourable John Roberts, Secretary of State, concluded that the reasons for such legislation include: • Effective accountability - the public’s judgment of choices taken by government - depends on knowing the information and options available to the decision-makers; • Government documents often contain information vital to the effective participation of citizens and organizations in government decision-making; and • (As) government has become the single most important storehouse of information about our society, information that is developed at public expense so should be publicly available wherever possible.10 7 General Motors Acceptance Corp. of Canada v. Saskatchewan Government Insurance, 1993 CanLII 9128 (SK CA) at [11]. See also SK OIPC Review Report F-2004-003 at [8]. 8 Access to Information Act, RSC 1985, c A-1 at subsection 2(1). 9 Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 SCR 403 at [61]. 10 Roberts, Honourable John. Secretary of State. June 1977. Legislation on Public Access to Government Documents, Government of Canada, Ministry of Supply and Services Canada at pp. 1 and 3. See also SK OIPC Review Report F-2004-003 at [9]. There is a typo in the report “1997” should be “1977”.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 5 Since the Access to Information Act came into force, provincial and territorial governments have enacted their own access to information and protection of privacy legislation. Many of those provincial instruments have included a more comprehensive purpose clause. Those purpose clauses tend to reflect and reinforce the approach taken by the federal Information Commissioner and numerous decisions of superior courts in Canada. A good example is section 2 of the British Columbia Freedom of Information and Protection of Privacy Act: 2(1) The purposes of this Act are to make public bodies more accountable to the public and to protect personal privacy by (a) giving the public a right of access to records, (b) giving individuals a right of access to, and a right to request corrections of, personal information about themselves, (c) specifying limited exceptions to the rights of access, (d) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and (e) providing for an independent review of decisions made under this Act.11 This summarizes and clearly identifies the purpose of legislation such as LA FOIP and FOIP. The IPC deals with requests for review and privacy breach complaints by reference to these same five purposes, which are outlined below.12 1. The Right of Access to Records LA FOIP establishes a right of access by any person to records in the possession or control of a local authority, subject to limited and specific exemptions, which are set out in LA FOIP. See Guide to LA FOIP, Chapter 3, “Access to Records” for more information about the right of access. 2. Access to an Individual’s Own Personal Information LA FOIP provides individuals with the right to access their own personal information. See Guide to LA FOIP, Chapter 3, “Access to Records” for more information on what section 30 of LA FOIP requires. 11 Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165 at subsection 2(1). 12 SK OIPC Review Report F-2004-003 at [9].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 6 3. Right to Request Correction of Personal Information LA FOIP provides an individual with the right to request a local authority correct the individual’s personal information where the individual believes there is an error or omission. See Guide to LA FOIP, Chapter 6, “Protection of Privacy” for more information on the right of correction. 4. Protection of Personal Privacy LA FOIP provides individuals with the right to privacy of their personal information held by local authorities. This includes restrictions on the collection, use and/or disclosure of the individual’s personal information. See Guide to LA FOIP, Chapter 6: “Protection of Privacy” for more information on the protection of privacy. 5. Independent Review of Decisions LA FOIP provides for the independent review of decisions made by local authorities with respect to access and protection of privacy. Independent review is provided by the Information and Privacy Commissioner. See Guide to LA FOIP, Chapter 2, “Administration of FOIP” for more information on the Information and Privacy Commissioner’s role and responsibilities under LA FOIP. THE SCOPE OF LA FOIP Local Authority LA FOIP applies to all local authorities as defined by subsection 2(f) of LA FOIP and includes local authorities prescribed in the Appendix at Parts I and II of The Local Authority Freedom of Information and Protection of Privacy Regulations. All local authorities subject to LA FOIP have statutory duties with regard to providing access to information and protecting personal information that is in the possession or control of the local authority.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 7 Subsection 2(f): Definition of a local authority Interpretation 2 In this Act: … (f) “local authority” means: (i) a municipality; (ii) Repealed. 2002, c.C-11.1, s.389. (iii) Repealed. 2002, c.C-11.1, s.389. (iv) a committee of a council of a municipality; (v) any board, commission or other body that: (A) is appointed pursuant to The Cities Act, The Municipalities Act or The Northern Municipalities Act, 2010; and (B) is prescribed; (vi) the board of a public library within the meaning of The Public Libraries Act, 1984; (vii) the Northern Library Office established pursuant to The Public Libraries Act, 1984; (viii) any board of education or conseil scolaire within the meaning of The Education Act; (viii.1) a police service or regional police service as defined in The Police Act, 1990; (ix) a regional college within the meaning of The Regional Colleges Act, other than the Saskatchewan Indian Community College; (x) the Saskatchewan Polytechnic; (xi) the University of Saskatchewan, including Saint Thomas More College; (xii) the University of Regina, including: (A) Campion College; and (B) Luther College with respect to its post-secondary level activities; (xiii) the provincial health authority or an affiliate, as defined in The Provincial Health Authority Act; (xiv) Repealed. 2002, c.R-8.2, s.83. (xv) Repealed. 2002, c.R-8.2, s.120. (xvi) Repealed. 2002, c.R-8.2, s.83.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 8 (xvii) any board, commission or other body that: (A) receives more than 50% of its annual budget from the Government of Saskatchewan or a government institution; and (B) is prescribed; Subsection 2(1)(f) of LA FOIP defines a local authority. Any body or organization that fits under this definition is subject to LA FOIP. Local authorities include, among other bodies, municipalities, boards of public libraries, boards of education, police services, universities, colleges, the provincial health authority, or affiliate. Subsections 2(f)(v) and (xvii) of LA FOIP use the phrase “is prescribed…”. The meaning of this can be found at subsection 2(i) of LA FOIP which provides: 2 In this Act: … (i) “prescribed” means prescribed in the regulations; Therefore, for subsections 2(f)(v) and 2(f)(xvii) of LA FOIP, a body that is prescribed means any body listed in Parts I and II of The Local Authority Freedom of Information and Protection of Privacy Regulations (LA FOIP Regulations). To further this, subsections 3(1) and 3(2) of the LA FOIP Regulations indicates bodies listed in Parts I and II of the Appendix are prescribed as local authorities. For purposes of subsection 2(f)(iv) of LA FOIP, a “committee of a council”, includes a board as defined in The Police Act, 1990.13 13 See subsection 2(2) of The Local Authority Freedom of Information and Protection of Privacy Regulations, RRS c L-27.1 Reg 1.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 9 LA FOIP Applies Section 5: Possession or Control Right of access 5 Subject to this Act and the regulations, every person has a right to and, on an application made in accordance with this Part, shall be permitted access to records that are in the possession or under the control of a local authority. [emphasis added] LA FOIP applies to any records in the “possession or under the control of a local authority”. Section 5 of LA FOIP provides that every person has a right to request access to records that are in the possession or under the control of a local authority. Therefore, LA FOIP only applies to records that are in a local authority’s possession or control. A record is defined at subsection 2(j) of LA FOIP as “a record of information in any form and includes information that is written, photographed, recorded or stored in any manner, but does not include computer programs or other mechanisms that produce records”. There are times when possession or control of records is not easily established. For that reason, the following terms, factors, and two-part test have been established. Possession is physical possession plus a measure of control over the record.14 The mere possession of a record is not enough, there must be some right to deal with the records and some responsibility for their care and protection. For this reason, the definition for “possession” includes a “measure of control”. This originates from the Office of the Ontario Information and Privacy Commissioner Order P-239 at paragraph [4] and is also followed by the Office of the Information and Privacy Commissioner of British Columbia in several Orders including Order 309-1999 in which the following is stated at paragraph [50]: 14 SK OIPC Review Reports F-2014-007 at [10] and LA-2010-002 at [93]. The mere possession is not enough, there must be some right to deal with the records and some responsibility for their care and protection. This definition that includes a “measure of control” originates from the Office of the Ontario Information and Privacy Commissioner (ON IPC) Order P-239 at [4].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 10 Custody [possession] of records requires more than that the records be located on particular premises. In order for a public body to have custody [possession] of records, the public body must have immediate charge and control of these records, including some legal responsibility for their safekeeping, care, protection, or preservation. Control connotes authority. A record is under the control of a local authority when it has the authority to manage the record including restricting, regulating, and administering its use, disclosure, or disposition.15 Possession and control are different things. It is conceivable that a local authority might have possession but not control of a record or that it might have control but not possession.16 Section 5 uses the word, “or” which indicates that only one of “possession” or “control” is required. If a local authority has either possession or control of a record, LA FOIP applies to that record.17 To determine whether a local authority has a measure of control over a record(s), both parts of the following two-part test must be met: 1. Do the contents of the document relate to a local authority matter? The first question acts as a useful screening device. If the answer is no that ends the inquiry. If the answer is yes, the inquiry into control continues.18 Continue to the second part of the test. Unsolicited Information19 An individual may submit personal information on their own initiative without the information being requested by the local authority. Receipt of this information is not 15 SK OIPC Review Report F-2008-002 at [35]. 16 SK OIPC Review Report F-2008-002 at [22]. 17 SK OIPC Review Report LA-2010-002 at [43]. 18 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306 at [55]. 19 From Guide to LA FOIP, Chapter 6: “Protection of Privacy” at Section 24, Unsolicited Information.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 11 considered a collection unless the local authority keeps or uses the information.20 In other words, if the local authority keeps it, it should ensure it has authority to do so under section 24 of LA FOIP. If not, return it or safely destroy it. In addition, keeping it means the local authority has possession and/or control of the personal information. If a local authority does not have specific authority to collect unsolicited personal information and the information is not necessary for an operating program or activity of the local authority, it is not an authorized collection. The local authority should adopt a policy of either returning the unsolicited information or destroying it in accordance with a transitory records schedule.21 Personal emails of employees22 When a local authority employee uses their workplace email address to send and receive personal emails completely unrelated to their work, those emails are not subject to disclosure to members of the public who request them under LA FOIP. The terms “possession” and “control” do not include private communications of employees unrelated to local authority business. It can be confidently predicted that any local authority employee who works in an office setting will have stored, somewhere in that office, documents that have nothing whatsoever to do with their job, but which are purely personal in nature. Such documents can range from the most intimately personal documents (such as medical records) to the most mundane (such as a list of household chores). It cannot be suggested that employees of a local authority governed by LA FOIP are themselves subject to that legislation in respect of any piece of personal material they happen to have in their offices at any given time. That would clearly not be contemplated as being within the intent and purpose of LA FOIP.23 20 Ministry of Government and Consumer Services, Information, Privacy and Archives, Freedom of Ontario Information and Protection of Privacy Manual at p. 140. Available at https://files.ontario.ca/books/foi_privacy_manual_-_final-v02-2018-03-08-en-accessible.pdf. Accessed December 1, 2022. See also SK OIPC Investigation Reports F-2012-002 at [61] and F-2012-004 at [77]. 21 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 7, p. 239. See also SK OIPC Investigation Report F-2012-002 at [60]. 22 The issue of possession & control can come up when it involves the personal emails or records of employees. In addition to the references noted in this section below, see also Saskatchewan Government and General Employees Union v Unifor Local 481, 2015 CanLII 28482 (SK LA). 23 See City of Ottawa v. Ontario, 2010 ONSC 6835 (CanLII) at [37]. See also SK OIPC Review Report F2014-007.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 12 While the expectation of privacy may be somewhat circumscribed, there is still both a right to and a reasonable expectation of privacy in relation to certain personal information contained on or in local authority owned equipment and accounts.24 2. Can the local authority reasonably expect to obtain a copy of the document upon request?25 All factors must be considered when determining the second question. These factors include: • The substantive content of the record. • The circumstances in which it was created. • The legal relationship between the local authority and the record holder.26 The reasonable expectation test is objective. If a local authority, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is met.27 If both test questions are answered in the affirmative, the document is under the control of the local authority.28 The following factors may also be considered if it is still unclear whether the local authority has “control” over the records at issue: • The record was created by a staff member, an officer, or a member of the local authority in the course of their duties performed for the local authority. • The record was created by an outside consultant for the local authority. • The local authority possesses the record, either because it has been voluntarily provided by the creator or pursuant to a mandatory, statutory or employment requirement. 24 Adapted from Office of the Northwest Territories Information and Privacy Commissioner (NWT IPC) Review Report 20-247 at [37]. 25 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306. 26 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306 at [56]. 27 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306 at [56]. 28 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 13 • An employee of the local authority possesses the record for the purposes of their duties performed for the local authority. • The record is specified in a contract as being under the control of a local authority and there is no understanding or agreement that the records are not to be disclosed. • The content of the record relates to the local authority’s mandate and core, central or basic functions. • The local authority has a right of possession of the record. • The local authority has the authority to regulate the record’s use and disposition. • The local authority paid for the creation of the records. • The local authority has relied upon the record to a substantial extent. • The record is closely integrated with other records held by the local authority. • A contract permits the local authority to inspect, review and/or possess copies of the records the contractor produced, received, or acquired. • The local authority’s customary practice in relation to possession or control of records of this nature in similar circumstances. • The customary practice of other bodies in a similar trade, calling or profession in relation to possession or control of records of this nature in similar circumstances. • The owner of the records.29 More than one agency may have control of the same record at the same time. The control exercised by two different organizations need not be co-extensive and may be uneven between the two organizations. Any analysis of possession and control needs to ensure that the words have different meanings.30 29 The possession/control test has evolved over the years in SK OIPC Review Reports. Earlier SK OIPC Review Reports relied on five factors. The first SK OIPC Review Report to list the five factors was F2008-002 at [27]. This changed to 15 factors in SK OIPC Review Report LA-2010-002 at [60] and [61]. The 15 factors originate from the Office of the British Columbia Information and Privacy Commissioner (BC IPC) Order F10-01. Following the Supreme Court of Canada decision Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306, SK OIPC Review Reports shifted to the two-part test from this decision. The 15 factors are used to supplement the test and assist with determining possession and/or control. They are not intended to replace the two-part test. 30 SK OIPC Review Report LA-2010-002 at [55].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 14 IPC Findings In Review Report LA-2010-002, the Commissioner reviewed a denial of access involving the City of Saskatoon (City). An applicant, who was an employee of the Saskatoon Police Service, requested access to the findings of a 2002 harassment investigation. The City denied access to the requested record indicating that LA FOIP did not apply to the Saskatoon Police Service. Upon review, the City advised the Commissioner that the City no longer had the record and had sent it to the Saskatoon Police Service. At the time of this review, LA FOIP did not apply to police services in the province. As a result of having sent the record to the Saskatoon Police Service, the City refused to provide the Commissioner with a copy of the record as requested by the Commissioner. The Commissioner found that the City had “possession with a measure of control” over the record. In Review Report 247-2017, the Commissioner reviewed a denial of access involving the Town of Willow Bunch (Town). An applicant requested access to records from the Town. The Town responded indicating the records requested did not exist. Upon review, the Town informed the Commissioner that the record (Town Administrator’s notes) had been destroyed prior to receiving the access to information request. The Commissioner reviewed whether the Town had possession or control of the records. The Town Administrator said the destroyed record were their personal notes. However, the Commissioner found the notes related to Town business and the Administrator was being paid by the Town at the time the notes were made, therefore, the notes would not be considered “personal” notes. The Commissioner found that the Town had possession and control of the record and as such it was subject to LA FOIP. In Review Report 156-2017, 264-2017, the Commissioner reviewed a denial of access involving the Rural Municipality of Manitou Lake No. 442 (RM). An applicant (a councillor) sought access to committee minutes and correspondence between the RM and the Commissioner’s office. The RM denied access to the responsive records. Late in the review, the RM asserted to the Commissioner that it did not have control over some of the records. It indicated that the records were originally identified as responsive as it wanted to be transparent. The RM asserted that the records were collected by an employee of the RM to make a harassment complaint. The RM indicated that the employee kept them in the RM office because the employee did not have a secure place to keep them at home. The Commissioner found that the RM had possession and control of the records. This finding was mainly the result of the RM not providing what was needed for the Commissioner to find otherwise.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 15 Section 23: Personal Information LA FOIP applies to personal information recorded in any form in the possession or control of a local authority. To qualify as personal information, two elements must exist: 1. An identifiable individual. 2. Information that is personal in nature. Some examples of what could constitute personal information include: • The individual’s race, national or ethnic origin, colour or religious or political beliefs or associations. • The individual’s age, sex, marital status or family status. • Information about the individual’s educational, financial, employment or criminal history, including criminal records, whether or not a pardon has been given. • An identifying number, symbol or other particular assigned to the individual. • Anyone else’s opinions about the individual. • The individual’s name, home or business address or home or business telephone number. • The individual’s personal views or opinions, except if they are about someone else.31 For more information about what constitutes personal information, see the Guide to LA FOIP, Chapter 6, “Protection of Privacy”. 31 The Local Authority Freedom of Information and Protection of Privacy Act, SS 1990-91, c L-27.1, at subsection 23(1).
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 16 LA FOIP Does Not Apply Application 3(1) This Act does not apply to: (a) published material or material that is available for purchase by the public; (b) material that is a matter of public record; or (c) material that is placed in the custody of a local authority by or on behalf of persons or organizations other than the local authority for archival purposes. Subsection 3(1) of LA FOIP provides that certain information and records in the possession or control of a local authority are excluded from the application of LA FOIP. In some cases, another process is available to obtain access to these records. See Section 4: Existing Rights Preserved, later in this Chapter. Subsection 3(1)(a) Application 3(1) This Act does not apply to: (a) published material or material that is available for purchase by the public; LA FOIP does not apply to published material or material that is available for purchase by the public. Published means to make known to people in general…an advising of the public or making known of something to the public for a purpose.32 When considering whether a record or information is published, the local authority should confirm that: • The specific information or record requested is published (what data elements are actually published).33 32 Originated from Black, Henry Campbell, 1979. Black’s Law Dictionary, 5th Edition St. Paul, Minn.: West Group. Adopted by the ON IPC in Order P-204 at p. 4. Adopted by SK OIPC in Review Report 249-2017 at [7]. 33 SK OIPC Investigation Report 249-2017 at [22].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 17 • There is a way for the public to access the published record or information. Where LA FOIP does not apply to a public record, it would still apply to all actions related to collection or use of data. Local authorities are best served by determining what data elements are published or made part of a public record. Best practice when publishing information or putting it in a public record, would be to include the least amount of personal information. This is particularly relevant when posting to the internet where the public record is in fact online and searchable. Publishing online means the information is potentially available to six to nine billion people at any given time.34 Material that is available to purchase means that a pricing structure is in place for all who wish to obtain the information or record.35 When considering whether a record or information is available to purchase, the local authority should confirm that: • The specific information or record requested is available for purchase. • There is a way for the public to purchase the record or information (i.e., website, office to attend). • A pricing structure exists for all who wish to obtain the information or record. In some circumstances, information or records are available through a public registry. A registry means a registry established or continued pursuant to a public registry statute and includes information provided to, and the data created or maintained in the operation of, a public registry statute.36 It can also be an electronic registry. Examples include the Information Services Corporation (ISC) land titles registry and the corporate registry. These registries provide information or records. Purchases can be made by attending ISC or through its website. There is also a fee structure in place for anyone wishing to purchase certain registry information. Some information is available free of charge. 34 SK OIPC Investigation Report 249-2017 at [22]. 35 Adapted from ON IPC Order MO-1693 at p.16. 36 Subsection 2(1)(i) of The Operation of Public Registry Statutes Act, SS 2013, c O-4.2. Subsection 2(1)(h) of this Act also defines “public registry statute” as an Act designated by subsection (2) with respect to a service agreement that has been entered into and includes regulations or an Act for which a contractor is authorized to exercise powers or fulfill duties in accordance with subsection 10(1) and includes regulations.
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 18 When relying on this provision, the local authority should ensure the publicly available record is the record or information being requested by an applicant. Further, applicants should not be required to compile small pieces of information from a variety of sources to obtain a complete version of a record that could be disclosed.37 Information Services Corporation (ISC) Information Services Corporation (ISC) oversees several public registries for the Government of Saskatchewan. Subsection 2(1)(a) of The Operation of Public Registry Statutes Act establishes the relationship between the Government of Saskatchewan and a “contractor”: 2(1) In this Act: (a) “contractor” means, with respect to a public registry statute, a person with whom the minister has entered into a service agreement; ISC is a “contractor” as defined above. However, ownership of the information in the registries remains with the Government of Saskatchewan as per subsection 11(1) of The Operation of Public Registry Statutes Act which provides: 11(1) All information and records in the registries are the property of the Government of Saskatchewan. The Ministry of Justice is the administrator of The Operation of Public Registry Statutes Act and has established the Office of Public Registry Administration within the ministry. A summary of The Operation of Public Registry Statutes Act is as follows: The Operation of Public Registry Statutes Act: • Created the Office of Public Registry Administration. • Allowed the Government of Saskatchewan to enter into a service agreement with a business corporation, Information Services Corporation (ISC), to operate and manage the public registries on behalf of the Government. • Maintained Government ownership of all registry data. • Continued Government guarantee of title and assurance coverage for certain 37 ON IPC Order MO-3191-F at [86], [87] and [88].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 19 errors on title. • Maintained the quasi-judicial decision-making within Government by requiring the registry officers (Registrar of Titles, Controller of Surveys, Director of Corporations, Registrar of Cooperatives, and Registrar of Personal Property Security) to be employed by the Government. … The service agreement with ISC covers the Land Registry, the Land Surveys Directory, the Personal Property Registry, the Corporate Registry, and the Common Business Identifiers Program (CBI). The Public can access these registries through ISC, but Government retains ultimate responsibility for the registries. The procedures for registering or searching documents in the public registries and the legal rights of people using public registries remain unchanged.38 In Review Report 297-2021, the Commissioner found that a portion of an applicant’s access to information request sent to the Ministry of Justice involved information maintained by ISC in the public registry. The Commissioner found the Ministry of Justice still maintained control of the information.39 IPC Findings In Review Report LA-2007-002, the Commissioner found that a tax certificate enabled by section 395 of The Rural Municipalities Act (RMA) qualified as “material available for purchase by the public”. If the applicant wanted the data elements included in the tax certificate, it would be excluded by virtue of subsection 3(1)(a) of LA FOIP. The applicant’s remedy would be to pay the appropriate fee and purchase the relevant tax certificates. The Commissioner also determined that subsection 3(1)(a) of LA FOIP had no requirement that information already available to anyone as “published material” within the meaning of subsection 3(1)(a) of LA FOIP need all be contained in a single document or format. All of the records the applicant requested could be purchased through a combination of tax certificates and title searches from Information Services Corporation or ISC. 38 Government of Saskatchewan, Publications, Summary – the Operation of Public Registry Statutes Act, available at https://publications.saskatchewan.ca/#/products/114854. Accessed February 27, 2023. 39 SK OIPC Review Report 297-2021 at [24].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 20 Subsection 3(1)(b) Application 3(1) This Act does not apply to: … (b) material that is a matter of public record; or LA FOIP does not apply to material that is a matter of public record. No definition of the term “matter of public record” appears in LA FOIP and there has not been a great deal of judicial comment on that term, especially in the context of similar “access to information” statutes.40 A matter of public record is defined as documents that one would typically find in a public register that the members of the public have ready access to.41 A “matter of public record” would be information collected and maintained specifically for the purpose of creating a record available to the general public. A good example would be the land titles registry operated by ISC.42 The only other province with freedom of information legislation that appears to contain the same “matter of public record” exemption provision as set out in subsection 3(1)(b) of LA FOIP is Nova Scotia. Subsection 4(2)(b) of The Freedom of Information and Protection of Privacy Act, SNS 1993, c 5, reads identically to subsection 3(1)(b) of LA FOIP. Courts in that province have endorsed the same definitions of “matter of public record” as were endorsed in Germain v. Automobile Injury Appeal Commission, 2009 SKKB 106 (CanLII).43 To be a “matter of public record” two characteristics must be present: i. The record is held by a local authority that is under a duty to keep or collect it. ii. The record is information that members of the public have a right to access.44 Registry means a registry established or continued pursuant to a public registry statute and includes information provided to, and the data created or maintained in the operation of, a 40 605499 Saskatchewan Ltd. v Rifle Shot Oil Corp., 2019 SKCA 133 at [67]. 41 SK OIPC Review Reports LA-2007-002 at [28] and 249-2017 at [8]. 42 SK OIPC Review Reports LA-2007-002 at [28]. Also cited in 605499 Saskatchewan Ltd. v Rifle Shot Oil Corp., 2019 SKCA 133 (CanLII) at [65]. 43 605499 Saskatchewan Ltd. v Rifle Shot Oil Corp., 2019 SKCA 133 (CanLII) at [66]. 44 Adapted from 605499 Saskatchewan Ltd. v Rifle Shot Oil Corp., 2019 SKCA 133 (CanLII) at [67].
Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 1, Purposes and Scope of LA FOIP. Updated 7 March 2023. 21 public registry statute.45 It can also be an electronic registry. Examples include the Information Services Corporation land titles registry and the corporate registry. Public record is defined as a record that a local authority is required by law to keep, such as minutes of Council meetings. Public records are generally open to view by the public.46 IPC Findings In Review Report LA-2007-002, the Commissioner considered an applicant’s request for access to the complete tax roll for the R.M. of Edenwold. The Commissioner determined that subsection 3(1)(a) of LA FOIP did not apply to the R.M.’s tax rolls and assessment rolls because the R.M. did not publish this information and did not sell it. The Commissioner also found that subsection 3(1)(b) of LA FOIP would not apply because the tax roll was not a “matter of public record”. Further, the Commissioner found that the assessment roll was only available to the public for a prescribed period of approximately one month and that this was inconsistent with the concept of a “matter of public record”. In 605499 Saskatchewan Ltd. v Rifle Shot Oil Corp., 2019 SKCA 133 (CanLII) the Saskatchewan Court of Appeal determined that agreements regarding compensation for surface rights were not excluded from access under the equivalent subsection 3(1)(b) of The Freedom of Information and Protection of Privacy Act. 45 Subsection 2(1)(i) of The Operation of Public Registry Statutes Act, SS 2013, c O-4.2. Subsection 2(1)(h) of this Act also defines “public registry statute” as an Act designated by subsection (2) with respect to a service agreement that has been entered into and includes regulations or an Act for which a contractor is authorized to exercise powers or fulfill duties in accordance with subsection 10(1) and includes regulations. 46 Germain v. Automobile Injury Appeal Commission, 2009 SKKB 106 (CanLII) at [69] and [72]. Also cited in SK OIPC Review Report LA-2010-002 at [52].
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