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Freedom of Information and Protection of Privacy Act

[RSBC 1996] CHAPTER 165

Part 4 — Office and Powers of Information and Privacy Commissioner

Appointment of commissioner

37  (1) On the recommendation of the Legislative Assembly, the Lieutenant Governor must appoint as the Information and Privacy Commissioner a person who has been unanimously recommended by a special Committee of the Legislative Assembly for the appointment.

(2) The commissioner is an officer of the Legislature.

(3) Subject to section 38, the commissioner holds office for a term of 6 years.

(4) [Repealed 2005-25-1.]

Resignation, removal or suspension of commissioner

38  (1) The commissioner may resign at any time by notifying the Speaker of the Legislative Assembly or, if there is no speaker or the speaker is absent from British Columbia, by notifying the clerk of the Legislative Assembly.

(2) The Lieutenant Governor in Council must remove the commissioner from office or suspend the commissioner for cause or incapacity on the recommendation of 2/3 of the members present in the Legislative Assembly.

(3) If the Legislative Assembly is not sitting, the Lieutenant Governor in Council may suspend the commissioner for cause or incapacity.

Acting commissioner

39  (1) The Lieutenant Governor in Council may appoint an acting commissioner if

(a) the office of commissioner is or becomes vacant when the Legislative Assembly is not sitting,

(b) the commissioner is suspended when the Legislative Assembly is not sitting,

(c) the commissioner is removed or suspended or the office of the commissioner becomes vacant when the Legislative Assembly is sitting, but no recommendation is made by the Assembly under section 37 (1) before the end of the session, or

(d) the commissioner is temporarily absent because of illness or for another reason.

(2) An acting commissioner holds office until

(a) a person is appointed under section 37 (1),

(b) the suspension of the commissioner ends,

(c) the Legislative Assembly has sat for 20 days after the date of the acting commissioner's appointment, or

(d) the commissioner returns to office after a temporary absence,

whichever is the case and whichever occurs first.

Salary, expenses and benefits of commissioner

40  (1) A commissioner appointed under section 37 (1) or 39 (1) is entitled

(a) to be paid, out of the consolidated revenue fund, a salary equal to the salary paid to the chief judge of the Provincial Court, and

(b) to be reimbursed for reasonable travelling and out of pocket expenses personally incurred in performing the duties of the office.

(2) The Lieutenant Governor in Council may, on terms and conditions the Lieutenant Governor in Council specifies, order that the Public Service Pension Plan, continued under the Public Sector Pension Plans Act, applies to the commissioner.

(3) If an order is made under subsection (2), the Public Service Pension Plan applies subject to subsection (4).

(4) When calculating the amount of a pension under the Public Service Pension Plan, each year of service as commissioner must be counted as 1 1/2 years of pensionable service.

(5) [Repealed 2003-62-2.]

Staff of commissioner

41  (1) The commissioner may appoint, in accordance with the Public Service Act, employees necessary to enable the commissioner to perform the duties of the office.

(2) The commissioner may retain any consultants, mediators or other persons and may establish their remuneration and other terms and conditions of their retainers.

(3) The Public Service Act does not apply in respect of a person retained under subsection (2).

(4) The commissioner may make a special report to the Legislative Assembly if, in the commissioner's opinion,

(a) the amounts and establishment provided for the office of commissioner in the estimates, or

(b) the services provided by the BC Public Service Agency

are inadequate for fulfilling the duties of the office.

General powers of commissioner

42  (1) In addition to the commissioner's powers and duties under Part 5 with respect to reviews, the commissioner is generally responsible for monitoring how this Act is administered to ensure that its purposes are achieved, and may

(a) conduct investigations and audits to ensure compliance with any provision of this Act or the regulations,

(b) make an order described in section 58 (3), whether the order results from an investigation or audit under paragraph (a) or an inquiry under section 56,

(c) inform the public about this Act,

(d) receive comments from the public about the administration of this Act,

(e) engage in or commission research into anything affecting the achievement of the purposes of this Act,

(f) comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs or activities of public bodies,

(g) comment on the implications for access to information or for protection of privacy of automated systems for collection, storage, analysis or transfer of information,

(h) comment on the implications for protection of privacy of using or disclosing personal information for data linking,

(i) authorize the collection of personal information from sources other than the individual the information is about, and

(j) bring to the attention of the head of a public body any failure to meet the prescribed standards for fulfilling the duty to assist applicants.

(2) Without limiting subsection (1), the commissioner may investigate and attempt to resolve complaints that

(a) a duty imposed under this Act has not been performed,

(b) an extension of time for responding to a request is not in accordance with section 10 (1),

(c) a fee required under this Act is inappropriate,

(d) a correction of personal information requested under section 29 (1) has been refused without justification, and

(e) personal information has been collected, used or disclosed in contravention of Part 3 by

(i)   a public body or an employee, officer or director of a public body, or

(ii)   an employee or associate of a service provider.

Power to authorize a public body to disregard requests

43  If the head of a public body asks, the commissioner may authorize the public body to disregard requests under section 5 or 29 that

(a) would unreasonably interfere with the operations of the public body because of the repetitious or systematic nature of the requests, or

(b) are frivolous or vexatious.

Powers of commissioner in conducting investigations, audits or inquiries

44  (1) For the purposes of conducting an investigation or an audit under section 42 or an inquiry under section 56, the commissioner may make an order requiring a person to do either or both of the following:

(a) attend, in person or by electronic means, before the commissioner to answer questions on oath or affirmation, or in any other manner;

(b) produce for the commissioner a record in the custody or under the control of the person, including a record containing personal information.

(2) The commissioner may apply to the Supreme Court for an order

(a) directing a person to comply with an order made under subsection (1), or

(b) directing any directors and officers of a person to cause the person to comply with an order made under subsection (1).

(2.1) If a person discloses a record that is subject to solicitor client privilege to the commissioner at the request of the commissioner, or under subsection (1), the solicitor client privilege of the record is not affected by the disclosure.

(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the commissioner within 10 days any record or a copy of any record required under subsection (1).

(3.1) The commissioner may require a person to attempt to resolve the person's request for review or complaint against a public body in the way directed by the commissioner before the commissioner begins or continues an investigation under section 42 or an inquiry under section 56.

(3.2) Subsection (3.1) applies whether or not a mediator has been authorized under section 55.

(4) If a public body is required to produce a record under subsection (1) and it is not practicable to make a copy of the record, the head of that public body may require the commissioner to examine the original at its site.

(5) After completing a review or investigating a complaint, the commissioner must return any record or any copy of any record produced by the public body concerned.

Maintenance of order at hearings

44.1  (1) At an oral hearing, the commissioner may make orders or give directions that he or she considers necessary for the maintenance of order at the hearing, and, if any person disobeys or fails to comply with any order or direction, the commissioner may call on the assistance of any peace officer to enforce the order or direction.

(2) A peace officer called on under subsection (1) may take any action that is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose.

(3) Without limiting subsection (1), the commissioner, by order, may

(a) impose restrictions on a person's continued participation in or attendance at a hearing, and

(b) exclude a person from further participation in or attendance at a hearing until the commissioner orders otherwise.

Contempt proceeding for uncooperative person

44.2  (1) The failure or refusal of a person subject to an order under section 44 to do any of the following makes the person, on application to the Supreme Court by the commissioner, liable to be committed for contempt as if in breach of an order or judgment of the Supreme Court:

(a) attend before the commissioner;

(b) take an oath or make an affirmation;

(c) answer questions;

(d) produce records in the person's custody or under the person's control.

(2) The failure or refusal of a person subject to an order or direction under section 44.1 to comply with the order or direction makes the person, on application to the Supreme Court by the commissioner, liable to be committed for contempt as if in breach of an order or judgment of the Supreme Court.

(3) Subsections (1) and (2) do not limit the conduct for which a finding of contempt may be made by the Supreme Court.

Statements made to the commissioner not admissible in evidence

45  (1) A statement made or an answer given by a person during an investigation or inquiry by the commissioner is inadmissible in evidence in court or in any other proceeding, except

(a) in a prosecution for perjury in respect of sworn testimony,

(b) in a prosecution for an offence under this Act, or

(c) in an application for judicial review or an appeal from a decision with respect to that application.

(2) Subsection (1) applies also in respect of evidence of the existence of proceedings conducted before the commissioner.

Protection against libel or slander actions

46  Anything said, any information supplied or any record produced by a person during an investigation or inquiry by the commissioner is privileged in the same manner as if the investigation or inquiry were a proceeding in a court.

Restrictions on disclosure of information by the commissioner and staff

47  (1) The commissioner and anyone acting for or under the direction of the commissioner must not disclose any information obtained in performing their duties, powers and functions under this Act, except as provided in subsections (2) to (5).

(2) The commissioner may disclose, or may authorize anyone acting on behalf of or under the direction of the commissioner to disclose, information that is necessary to

(a) conduct an investigation, audit or inquiry under this Act, or

(b) establish the grounds for findings and recommendations contained in a report under this Act.

(2.1) The commissioner and anyone acting for or under the direction of the commissioner must not give or be compelled to give evidence in court or in any other proceedings in respect of any records or information obtained in performing their duties or exercising their powers and functions under this Act.

(2.2) Despite subsection (2.1), the commissioner and anyone acting for or under the direction of the commissioner may give or be compelled to give evidence

(a) in a prosecution for perjury in respect of sworn testimony,

(b) in a prosecution for an offence under this Act,

(c) in an investigation, a determination or a review referred to in section 60 (1), or

(d) in an application for judicial review of a decision made under this Act.

(2.3) Subsections (2.1) and (2.2) apply also in respect of evidence of the existence of proceedings conducted before the commissioner.

(3) In conducting an investigation, audit or inquiry under this Act and in a report under this Act, the commissioner and anyone acting for or under the direction of the commissioner must take every reasonable precaution to avoid disclosing and must not disclose

(a) any information the head of a public body would be required or authorized to refuse to disclose if it were contained in a record requested under section 5, or

(b) whether information exists, if the head of a public body in refusing to provide access does not indicate whether the information exists.

(4) The commissioner may disclose to the Attorney General information relating to the commission of an offence against an enactment of British Columbia or Canada if the commissioner considers there is evidence of an offence.

(5) The commissioner may disclose, or may authorize anyone acting for or under the direction of the commissioner to disclose, information in the course of a prosecution, application or appeal referred to in section 45.

Protection of commissioner and staff

48  No proceedings lie against the commissioner, or against a person acting on behalf of or under the direction of the commissioner, for anything done, reported or said in good faith in the exercise or performance or the intended exercise or performance of a duty, power or function under this Part or Part 5.

Delegation by commissioner

49  (1) Subject to this section, the commissioner may delegate to any person any duty, power or function of the commissioner under this Act, other than the power to delegate under this section.

(1.1) The commissioner may not delegate the power to examine information referred to in section 15 if the head of a police force or the Attorney General

(a) has refused to disclose that information under section 15, and

(b) has requested the commissioner not to delegate the power to examine that information.

(1.2) Despite section 66, the head of a police force may not delegate the power to make a request under subsection (1.1) (b).

(1.3) Despite section 66, the Attorney General may only delegate the power to make a request under subsection (1.1) (b) to the Assistant Deputy Attorney General, Criminal Justice Branch.

(2) A delegation under subsection (1) must be in writing and may contain any conditions or restrictions the commissioner considers appropriate.

Role of Ombudsperson

50  The Ombudsperson may not investigate any matter that the commissioner has the power to investigate or review under this Act unless the commissioner agrees.

Annual report of commissioner

51  (1) The commissioner must report annually to the Speaker of the Legislative Assembly on

(a) the work of the commissioner's office, and

(b) any complaints or reviews resulting from a decision, act or failure to act of the commissioner as head of a public body.

(2) The Speaker must lay each annual report before the Legislative Assembly as soon as possible.

Contents  |  Part 1  |  Part 2  |  Part 3  |  Part 4  |  Part 5  |  Part 6  |  Schedule 1  |  Schedule 2  |  Schedule 3