FOIP and the Trustee

1. FOIP and the Trustee Jeremy D. Schick Solicitor, Legal Services Alberta School Boards Association Diving In: New Trustees and Board Chairs Workshop

2. “FOIP” • Freedom of Information and Protection of Privacy Act

3. About the FOIP Act • public bodies  framework within which they must conduct the collection, use and disclosure of personal information • individuals  right to request access to information in the custody or control of public bodies

4. Who is covered? Public Bodies • a department, branch or office of the government of Alberta • an agency, board, commission, corporation , office or other body designated as a public body in the regulations of the Act • educational bodies (universities, technical institutes, colleges, school boards and charter schools) • health care bodies (Regional Health Authorities, provincial health boards, nursing home operators, hospital boards and subsidiary health corporations) • local government bodies (municipalities, Metis settlements, police services and commissions, libraries, etc)

5. 5 Key Principles • Rights of access to records • Protect individual privacy • Access to own personal information • Correction of personal information • Independent review by Information and Privacy Commissioner

6. School Board Obligations • Designate a “head”, which can be an individual or a group of individuals, for the purposes of administration of the FOIP Act • School Board may adopt a fee schedule, which must not exceed the fees provided for in the regulations • Protect privacy of personal information • Protect confidential business information

7. FOIP Implication #1 • FOIP impacts what information you can receive as a trustee, and how the board and trustees can use or disclose information

8. “Personal Information” • Defined in FOIP (section 1(n)), and includes: • the individual’s name, home or business address or home or business telephone number; • 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 health and health care history, including information about a physical or mental disability; • information about the individual’s educational, financial, employment or criminal history, including criminal records where a pardon has been given; • anyone’s opinion about the individual; • the individual’s personal views or opinions

9. “Use” of information • Public body may only use personal information: • for the purpose for which it was obtained or a consistent purpose; • for another purpose with the consent of the individual; • for purposes allowed under the “disclosure” provisions of the Act • A “consistent purpose” has a reasonable and direct connection to the original purpose, and is necessary for program or duty

10. “Disclosure” of information • Public body may only disclose personal information if authorized by the Act – which includes: • For the purpose for which the info was collected • For a purpose to which the individual consented • For the purpose of managing or administering personnel

11. Limits on use and disclosure • But, in both cases, the public body may only use or disclose to the extent necessaryto enable the public body to carry out its purpose in a reasonable manner • Put simply, this means info must typically be used and disclosed on a “need to know” basis

12. Privacy Pitfalls • Personal information in board documents • In-camera meeting procedures • Dealing with the media • Casual disclosures • Misuse of personal information

13. FOIP Implication #2 • Public Access to Records … including your records

14. Release of Records under FOIP • Release unless an “exception” in the Act allows information to be withheld • Act of Last Resort • Routine disclosure and active dissemination of records

15. Exception:Personal and Constituency Records • Section 4(1)(m) excludes “a personal record or constituency record of an elected member of a local public body”. • Must meet 2 tests: • Board has custody and control of record • Personal or constituency records

16. Test #1: Custody and Control • Custody • Physical possession • Off site storage • Board controlled agency • contract • Control • authority to manage the record, including restricting, regulating and administering its use, disclosure or disposition

17. Test #2: Personal or Constituency • Personal Records • Not done in capacity as elected official • E.g. • private correspondence • private business holdings • personal notes made by a trustee at a board meeting as a memory aid (if board does not have a right of access to them and has not otherwise regulated the use and disclosure) • Record of private appointments • Records related to a professional or similar organization to which the individual belongs or holds office. • Etc.

18. Not Personal • notes made by trustee on a report discussed at board meeting that becomes substance of policy or amendments passed • board correspondence trustee takes home  • record of in-camera meeting prepared by trustee because staff excluded from meeting • notes taken by trustee during a meeting in official capacity, with a citizen • correspondence sent to or received by trustee in official capacity • notes of committee meetings if no secretary

19. Constituency Records • a record that deals with the political activities of an elected official of a local public body, including election contributions, campaigning and campaign issues

20. 4(1)(b) –Quasi-Judicial Capacity • personal note, communication or draft decision of a person who is acting in a judicial or quasi-judicial capacity … is exempted from application of the Act

21. Exceptions to Disclosure • S. 23 – Local Public Body Confidences • discretionary • may be relied upon by a board to refuse to disclose information to an applicant, if the disclosure would reveal • drafts of a resolution or by-law of the board, or • the substance of deliberations of a meeting of the board or a committee of the board, provided that the meeting was properly held in-camera

22. Exceptions to Disclosure (con’t) • Section 24: Policy Advice from Officials • Section 25: Disclosure harmful to economic or other interests of the public body • Section 27: Privileged information (legal advice) • Section 29: Information that will be published or released within sixty (60)days • Section 16: Disclosure harmful to the business interests of a third party

23. Records Management - Keeping it “Personal” • Maintain personal records separately from the records of the board • if personal records kept on board premises, storage location must be secured and clearly labelled as personal with respect to the individual trustee • Computer records • Password protected • Personal folders or directories

24. Records Management - Retention • keep personal information about an individual for at least one year if used by the board to make a decision about the individual or if collected in the course and scope of fulfilling duties as trustee (s. 35) • destruction of records - board’s records retention policy (adopted by resolution, pursuant to Section 3(e)(ii) of FOIP) • Transitory records - discarded when no longer required, in accordance with your board’s records management rules

25. Creating Records • Write notes as if they could be published in tomorrow’s newspaper • Manage records • E-mails are records • Plan for routine disclosure • Expense claims

26. Implication #3 • Together, FOIP and the School Act limit the times where the board can deliberate, make decisions or “advance the business of the board” behind closed doors and refuse access to records of those deliberations

27. When can a Board go in camera ? • Remember, s. 23 of FOIP only allows the board to refuse access to confidential deliberations if the board was properly in camera • Section 70 of the School Act says the meetings of a board shall be held in public, and no person shall be excluded from them, except for improper conduct at that meeting

28. When can a Board go in camera ? (cont.) • May go in camera to discuss: • Security of the board’s property • Personal information of an individual • A proposed or pending acquisition • Labour relations or employee negotiations • A law enforcement matter, litigation or potential litigation, including matters before administrative tribunals • Consideration of a FOIP request

29. Legal decisions re: “open meetings” • City of Yellowknife Property Owners Assoc. v. City of Yellowknife • private “briefing” were improper – “materially advanced” issues in power of city council • FOIP decision: Board of Trustees of Medicine Hat • Because of lack of certainty re: rules of committee, and whether properly in camera, no FOIP protection of minutes

30. The Legal Consequences of FOIP Breaches

31. FOIP Offences (s.92) • It is an offence to willfully: • collect, use or disclose personal information * • attempt to gain or gain access to personal information in contravention of this Act • make a false statement to, or mislead or attempt to mislead, the Commissioner • obstruct the Commissioner • alter, falsify or conceal any record, or direct another person to do so, with the intent to evade a request for access to the record • fail to comply with an order made by the Commissioner • destroy any records subject to this Act with the intent to evade a request for access to the records

32. Offences • Fine of up to $10,000

33. s.90 – Protection from Legal Suit • protection for a public body and its elected officials who act in good faith