Access to Information in a School

1. Access to Information in a School Angela Markel, Portfolio Officer Office of the Saskatchewan Information and Privacy Commissioner

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3. What are the Laws? • Federal Legislation: • Access to Information Act (ATIA) • Privacy Act • Personal Information Protection and Electronic Documents Act (PIPEDA) • Provincial Legislation: • The Privacy Act • The Freedom of Information and Protection of Privacy Act (FOIP) • The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) • The Health Information Protection Act (HIPA)

4. Saskatchewan Information and Privacy Commissioner • Oversees 3 statutes: • The Freedom of Information and Protection of Privacy Act (FOIP) • The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) • The Health Information Protection Act (HIPA) • Appointed by Legislative Assembly • 5 year term • Right of appeal to Q.B.

5. OIPC Mandate • Comment on privacy implications of proposed legislation/programs • Recommend changes in collection, use and disclosure practices • Recommend destruction of improperly collected personal information • Authorize indirect collection • Carry out investigations to ensure compliance • Review decisions of public bodies • Undertake public education on access and privacy matters • Submit Annual Report to Legislative Assembly

6. OIPC Activities • Reports (investigations and reviews) • FOIP FOLIO (e-newsletter) • Resource Materials • Video surveillance guidelines • Faxing Guidelines • Best Practices – Mobile Device Security • Privacy Breach Guidelines • Pamphlets • “Helpful Tips” • Annual Reports

7. Public information must be accessible; Personal information must be protected.

8. The Health Information Protection Act • In force since Sept. 1, 2003 • HIPA applies to trustees: • Government institutions (includes Crown Corporations) • Regional health authorities • Health professionals • Ambulance operators • Pharmacies • Medical laboratories With custody or control of Personal health information • Sets out rules for the collection, use and disclosure of personal health information

9. What is ‘Personal Health Information’? • Personal health information includes: • Physical or mental health of individual • Any health service provided to the individual • Registration information • Information collected in the course of, or incidentally to, the provision of health services

10. HIPA Basics • HIPA does not apply to: • Statistical / De-identified health information • PHI of a person deceased for more than 30 years • Records that are more than 120 years old • Facilitates information sharing within the ‘circle of care’ • Limits sharing outside that ‘circle of care’ • “Need to Know” Principle • Three forms of consent • Express, implied, deemed • Right of complaint to the OIPC

11. The Freedom of Information and Protection of Privacy Act • In force since 1992 • Applies to government institutions: • Government ministries, agencies, boards, commissions, Crown Corporations • Entities under contract to a government institution may have records under the control of a government institution

12. The Local Authority Freedom of Information and Protection of Privacy Act • In force since 1993 • Applies to local authorities: • Universities and Colleges • Regional health authorities • School and library boards • Municipalities, cities and towns • Also, a local authority’s contractors

13. FOIP & LA FOIP • Parts II & III deal with access • Sets out the rules for access to records in the possession or under the control of a public body; exceptions are limited and specific; provides right to request correction / amendment • Part IV deals with privacy • Governs the collection, use and disclosure of personal information in the possession or control of a public body • Provides a right to complain to the Commissioner

14. Other Relevant Laws • The Education Act • The Child and Family Services Act • The Children’s Law Act • The Emergency Protection for Victims of Child Sexual Abuse and Exploitation Act • The Public Health Act • The Mental Health Service Act • Youth Criminal Justice Act (federal) • Divorce Act (federal)

15. Surrogates • Clarifies who may act on your behalf: • Personal representative of deceased estate • Legal guardian • Attorney under power of attorney • Legal custodian - where the individual is under 18 and the exercise of the right under the legislation would not constitute an unreasonable invasion of privacy of that individual • By anyone with written authorization from the individual

16. Custody & Access Issues • The Children’s Law Act provides that: 9(2) Unless otherwise ordered by the court, a parent who is granted access to a child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child. • However, having the right to “make inquiries and be given information” does not necessarily equate to the non-custodial parent being allowed to act on behalf of the child, as a surrogate does under FOIP/LA FOIP. Thus, need to consider what information is being sought and what actions are purported to be taken on the child’s behalf. Surrogacy provisions cannot be used to obtain records to further the parent’s own personal objectives.

17. ACCESS TO INFORMATION

19. What is ‘FOIPable’? • FOIP/LA FOIP does NOTapply to: • Published materials - Matters of public record • Archival materials • Existing rights preserved • Does not replace existing procedures on access or limit access normally available • Does not prevent access to registry information • It does not limit production of documents in court actions or limit information available by law • Confidentiality provisions in other enactments may impact ability to release some information

20. What is ‘FOIPable’? • Recorded Information in anyform including: documents, letters, handwritten notes, e-mail, photos, drawings, calendars, voice-mail etc. • All records in public body’s possession or control • The ‘responsive record’ is the package of documents that would be responsive to the applicant’s access request • Copies of source documents • Summary, condensed, or secondary documents are no satisfactory substitute for source documents

21. Integrated Services • Identify partners • Personal information or personal health information involved? • Who has possession/custody or control of ‘pi’ or ‘phi’? • What other statutes may apply? • Check for confidentiality & information disclosure provisions • Need to know • What about access? • What about consent? • What type of consent is required (deemed, implied, express) and in what form (i.e. written)? Determine highest standard • Who consents? (youth, guardian, legal representative, etc) • What constitutes a proper consent?

22. Integrated Services • Terms of reference should include the following elements: • Purpose • Authority • Integrated Service Providers • Statement of use/notification • Consent • Records • Access

23. The Head • The final decision about access to information is made by the “head” of the public body • A head may delegate to one or more officers of the public body • May be the Director of Education or a designated senior administrative official

24. Processing an Access Request • Duty to Assist • Implied duty to take reasonable steps to assist an applicant • Respond openly, accurately and completely • Conduct an adequate search • Should contact appropriate persons who are likely to have knowledge • Should record details of the search for responsive records • Consult with Applicant for clarification • Should only ask the Applicant why they want the information if it would assist in locating records / determining the scope of their request

25. “File Management is 80% of the Battle”

26. Preservation of documents The Education Act, 1995 Preservation of documents 369(1) A board of education shall preserve all public documents of a school division or school community council until their disposal is: (a) authorized by a resolution of the board of education; and (b) approved by the minister. (2) The conseil scolaire shall preserve all public documents of the conseil scolaire and the conseils d’écoles that pertain to activities pursuant to this Act until their disposal is: (a) authorized by a resolution of the conseil scolaire; and (b) approved by the minister. (3) With the consent of The Saskatchewan Archives Board, a board of education or a conseil scolaire may deposit any of its non-current or other documents with The Saskatchewan Archives Board for preservation in the archives.

27. Processing an Access Request • Determine ifexemptions apply • Consider fees • Provide interim notice with fee estimate • Sever records, if necessary • Respond within the time limit (30 calendar days) • Section 7 response to the Applicant

28. Exemptions to Access • Records MUST be released unless a statutory exemption applies • Two types: • Mandatory Exemptions • Discretionary Exemptions • The burden of establishing that access to a record may or must be refused is on the head of the public body

29. Mandatory Exemptions • Must not be released • Includes: • Third Party information • Records from other governments • Personal information of others • no disclosure without consent unless… • no disclosure of deceased until or unless…

30. Discretionary Exemptions • May be released – discretion must be considered • Includes: • Law enforcement matters • Local authority draft bylaws or resolutions, agendas and deliberations of in camera meetings • Advice from officials • Economic interests • Testing procedures • Where there is a health or safety threat • Solicitor client privilege • Info. obtained from another local authority or a similar body in confidence (implicitly or explicitly)

32. Review by the OIPC • Initiated by receipt of Applicant’s Request for Review • Initial discussion with OIPC investigator • Submissions from both parties on the issues under dispute: • applicability of any claimed exemptions, question of control of records, fees etc. • Analysis of issues by OIPC • Mediation / Informal Resolution • Report Issued if no Resolution • 30 days for public body to respond to recommendations • Right of appeal to the Queen’s bench

33. Case StudyFogal v. Regina School Division No. 4 • Appeal from decision of Information and Privacy Commissioner to Court of Queen’s Bench • Background: • Teacher with 20+ years experience was told, “you will be placed on extensive performance evaluation process commencing February 5, 2001 due to parental concerns”. • On behalf of Fogal the STF applied for access to records (parent’s comments) from the Board of Education • The Board denied the request as it contained, “personal information that is of an evaluative or opinion material compiled solely for the purpose of determining the individual’s suitability, eligibility or qualifications for employment” – section 30 (2) of LA FOIP • Was the board right to deny the request?

34. Case StudyFogal v. Regina School Division No. 4 • At issue – Was it her personal information? • Yes - the views or opinions of another person about a teacher • section 23(1)(h) of LA FOIP • Is the Board of Education entitled to rely on the exemption contained in section 30(2) of LA FOIP? • Yes. This section does not just apply to information compiled at the time of hiring. The court ruled that the board was entitled to withhold the documents.

35. Questions ??

36. Contact Information Office of the Saskatchewan Information and Privacy Commissioner 503-1801 Hamilton Street REGINA, SK S4P 4B4 Phone: (306) 787-8350 Fax: (306) 798-1603 Email: amarkel@oipc.sk.ca Website: www.oipc.sk.ca