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Freedom of Information and Protection of Privacy Act

[RSBC 1996] CHAPTER 165

Part 6 — General Provisions

Delegation by the head of a public body

66  (1) The head of a public body may delegate to any person any duty, power or function of the head of the public body under this Act, except the power to delegate under this section.

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

(3) [Repealed 2011-17-24.]

Consultative committee

67  The minister responsible for this Act may establish a consultative committee to make recommendations to the minister about the operation of this Act.

Annual report of minister

68  The minister responsible for this Act must prepare an annual report on its administration and lay the report before the Legislative Assembly as soon as possible.

General information respecting use of personal information

69  (1) In this section:

"information-sharing agreement" means an agreement between a public body and one or more of the following:

(a) another public body;

(b) a government institution subject to the Privacy Act (Canada);

(c) an organization subject to the Personal Information Protection Act or the Personal Information Protection and Electronic Documents Act (Canada);

(d) a public body, government institution or institution as defined in applicable provincial legislation having the same effect as this Act;

(e) a person or a group of persons;

(f) a prescribed entity,

that sets conditions on the collection, use or disclosure of personal information by the parties to the agreement;

"personal information bank" means a collection of personal information that is organized or retrievable by the name of an individual or by an identifying number, symbol or other particular assigned to an individual;

"privacy impact assessment" means an assessment that is conducted by a public body to determine if a current or proposed enactment, system, project, program or activity meets or will meet the requirements of Part 3 of this Act.

(2) The minister responsible for this Act must maintain and publish a personal information directory to provide information about records in the custody or under the control of ministries of the government of British Columbia and about the use of those records.

(3) The personal information directory must include a summary that meets the requirements of the minister responsible for this Act of the following information:

(a) the personal information banks that are in the custody or control of each ministry of the government of British Columbia;

(b) the information-sharing agreements into which each ministry of the government of British Columbia has entered;

(c) the privacy impact assessments referred to in subsection (5);

(d) any other information the minister responsible for this Act considers appropriate.

(4) The head of a ministry must correct as soon as possible any errors or omissions in the portion of the personal information directory that relates to the ministry, and provide the corrected information to the minister responsible for this Act.

(5) The head of a ministry must conduct a privacy impact assessment in accordance with the directions of the minister responsible for this Act.

(5.1) The head of a ministry, with respect to a proposed enactment, system, project, program or activity, must submit, during the development of the proposed enactment, system, project, program or activity, the privacy impact assessment to the minister responsible for this Act for the minister's review and comment.

(5.2) If the minister responsible for this Act receives a privacy impact assessment under subsection (5.1) respecting a common or integrated program or activity or a data-linking initiative, the minister must submit, during the development of the proposed enactment, system, project, program or activity, the privacy impact assessment to the commissioner for the commissioner's review and comment.

(5.3) The head of a public body that is not a ministry must conduct a privacy impact assessment in accordance with the directions of the minister responsible for this Act.

(5.4) The head of a public body that is not a ministry, with respect to a proposed system, project, program or activity, must submit, during the development of the proposed system, project, program or activity, the privacy impact assessment, if it addresses a common or integrated program or activity or a data-linking initiative, to the commissioner for the commissioner's review and comment.

(5.5) The head of a public body must notify the commissioner of a data-linking initiative or of a common or integrated program or activity at an early stage of developing the initiative, program or activity.

(5.6) If all the participants in a data-linking initiative are either a health care body, the ministry of the minister responsible for the administration of the Ministry of Health Act or a health-related organization as prescribed, then

(a) subsections (5.3), (5.4) and (5.5) do not apply with respect to a participant that is a health care body or a health-related organization as prescribed, and

(b) subsections (5), (5.1) and (5.5) do not apply with respect to a participant that is the ministry of the minister responsible for the administration of the Ministry of Health Act.

(5.7) The head of a ministry must prepare an information-sharing agreement in accordance with the directions of the minister responsible for this Act.

(6) The head of a public body that is not a ministry must make available for inspection and copying by the public a directory that lists the public body's personal information banks and includes the following information with respect to each personal information bank:

(a) its title and location;

(b) a description of the kind of personal information and the categories of individuals whose personal information is included;

(c) the authority for collecting the personal information;

(d) the purposes for which the personal information was obtained or compiled and the purposes for which it is used or disclosed;

(e) the categories of persons who use the personal information or to whom it is disclosed;

(f) information required under subsection (7).

(7) The minister responsible for this Act may require one or more public bodies, or classes of public bodies, that are not ministries of the government of British Columbia

(a) to provide additional information for the purposes of subsection (6), and

(b) to comply with one or more of the subsections in this section as if the public body were a ministry of the government of British Columbia.

(8) Not later than 60 days after making an order under section 33.1 (3) (orders allowing disclosure outside Canada), the minister responsible for this Act must publish a summary of the order.

(9) The minister responsible for this Act, in consultation with the commissioner, must establish an information-sharing code of practice that makes recommendations respecting how personal information is to be collected, used and disclosed under this Act.

Public information regarding health information banks

69.1  (1) In this section:

"health care body" has the same meaning as in section 1 of the E-Health (Personal Health Information Access and Protection of Privacy) Act;

"health information bank" means a health information bank and a ministry database within the meaning of the E-Health (Personal Health Information Access and Protection of Privacy) Act;

"health information-sharing agreement" means an agreement under section 14 or 19 of the E-Health (Personal Health Information Access and Protection of Privacy) Act;

"official responsible" in relation to a health care body means

(a) the minister, for a health care body that is a ministry,

(b) the head of the regional health board, for a health care body that

(i)   is a regional health board designated under section 4 (1) of the Health Authorities Act, or

(ii)   reports to or is funded by the regional health board, and

(c) the chief executive officer of the Provincial Health Services Authority, for a health care body that is

(i)   the Provincial Health Services Authority, or

(ii)   a society that reports to the Provincial Health Services Authority.

(2) The personal information directory under section 69 must include information about health information banks of health care bodies and about the use of the information in those health information banks.

(3) For the purposes of subsection (2), the personal information directory must include the following information in accordance with the requirements of the minister responsible for this Act:

(a) the provisions of the order under section 3 (establishment or designation of health information banks) of the E-Health (Personal Health Information Access and Protection of Privacy) Act in relation to each health information bank that is in the custody or control of each health care body;

(b) a summary of the health information-sharing agreements into which each health care body has entered;

(c) any other information the minister responsible for this Act considers appropriate.

(4) The official responsible must

(a) provide to the minister responsible for this Act the information required for the purposes of subsection (2), and

(b) correct as soon as possible any errors or omissions in the portion of the personal information directory that relates to the health care body, and provide the corrected information to the minister responsible for this Act.

(5) A ministry that is a health care body must conduct a privacy impact assessment that is in relation to

(a) a health information bank in its custody or control, or

(b) a health information-sharing agreement to which it is a party

in accordance with the directions of the minister responsible for this Act.

Provincial identity information services provider

69.2  (1) The minister responsible for this Act may designate a public body as a provincial identity information services provider.

(2) A provincial identity information services provider, by exercising its powers respecting the collection, use and disclosure of information, may provide the following services:

(a) identifying an individual;

(b) verifying the identity of an individual;

(c) updating personal identity information about an individual;

(d) issuing a physical or an electronic credential to an individual;

(e) managing the information associated with a physical or an electronic credential;

(f) any other service related to personal identity information that the minister responsible for this Act considers appropriate.

(3) The minister responsible for this Act may give directions to a provincial identity information services provider or a public body respecting

(a) the type and quantity of personal identity information required to identify, or verify the identity of, individuals seeking access to government services,

(b) the provision to individuals of physical and electronic credentials for use in accessing government services,

(c) the privacy and security of personal identity information that is collected, used or disclosed under this Act,

(d) the format in which personal identity information is collected, used or disclosed under this Act, and

(e) the circumstances in which particular types of personal identity information may or may not be collected, used or disclosed in relation to services provided under subsection (2).

(4) The minister, under subsection (3), may give different directions for different categories of personal identity information, personal identity information services and government services.

Policy manuals available without request

70  (1) The head of a public body must make available to the public, without a request for access under this Act,

(a) manuals, instructions or guidelines issued to the officers or employees of the public body, or

(b) substantive rules or policy statements adopted by the public body,

for the purpose of interpreting an enactment or of administering a program or activity that affects the public or a specific group of the public.

(2) The head of a public body may delete from a record made available under this section any information he or she would be entitled to refuse to disclose to an applicant.

(3) If information is deleted, the record must include a statement of

(a) the fact that information has been deleted,

(b) the nature of the information, and

(c) the reason for the deletion.

(4) If a person asks for a copy of a record under this section, section 71 (2) applies.

Records available without request

71  (1) Subject to subsection (1.1), the head of a public body must establish categories of records that are in the custody or under the control of the public body and are available to the public without a request for access under this Act.

(1.1) The head of a public body must not establish a category of records that contain personal information unless the information

(a) may be disclosed under section 33.1 or 33.2, or

(b) would not constitute, if disclosed, an unreasonable invasion of the personal privacy of the individual the information is about.

(1.2) Section 22 (2) to (4) applies to the determination of unreasonable invasion of personal privacy under subsection (1.1) (b) of this section.

(2) The head of a public body may require a person who asks for a copy of an available record to pay a fee to the public body.

(3) Subsection (1) does not limit the discretion of the government of British Columbia or a public body to disclose records that do not contain personal information.

Records that ministries must disclose

71.1  (1) Subject to subsection (2), the minister responsible for this Act may establish categories of records that are in the custody or under the control of one or more ministries and are available to the public without a request for access under this Act.

(2) The minister responsible for this Act must not establish a category of records that contain personal information unless the information

(a) may be disclosed under section 33.1 or 33.2, or

(b) would not constitute, if disclosed, an unreasonable invasion of the personal privacy of the individual the information is about.

(3) Section 22 (2) to (4) applies to the determination of unreasonable invasion of personal privacy under subsection (2) (b) of this section.

(4) The minister responsible for this Act may require one or more ministries to disclose a record that is within a category of records established under subsection (1) of this section or section 71 (1).

(5) If required to disclose a record under subsection (4), a ministry must do so in accordance with any directions issued relating to the disclosure by the minister responsible for this Act.

Repealed

72  [Repealed 2002-13-14.]

Protection of public body from legal suit

73  No action lies and no proceeding may be brought against the government, a public body, the head of a public body, an elected official of a public body or any person acting on behalf of or under the direction of the head of a public body for damages resulting from

(a) the disclosure, or failure to disclose, in good faith of all or part of a record under this Act or any consequences of that disclosure or failure to disclose, or

(b) the failure to give any notice required under this Act if reasonable care is taken to give the required notice.

Recovery of personal information

73.1  (1) If the head of a public body has reasonable grounds to believe that personal information in the custody or under the control of the public body is in the possession of a person or an entity not authorized by law to possess the information, the head of the public body may issue a written notice demanding that person or entity to do either of the following within 20 calendar days of receiving the notice:

(a) return the information to the public body or, in the case of electronic records, securely destroy the information and confirm in writing the date and the means by which the information was securely destroyed;

(b) respond in writing and declare why the person or entity considers that

(i)   the information was not in the custody or under the control of the public body when the person or entity acquired possession of the information, or

(ii)   the person or entity is authorized by law to possess the information.

(2) The written notice referred to in subsection (1) must

(a) identify, with reasonable specificity, the personal information claimed to be in the custody or under the control of the public body and in the possession of the person or entity not authorized by law to possess the information, and

(b) state that the public body may undertake legal action to recover the personal information if the person or entity fails to respond in writing within the required time or does not adequately demonstrate that

(i)   the information was not in the custody or under the control of the public body when the person or entity acquired possession of the information, or

(ii)   the person or entity is authorized by law to possess the information.

Court order for return of personal information

73.2  (1) If a person or an entity that receives a written notice and demand from the public body under section 73.1 (1) fails to

(a) return the described personal information or, in the case of electronic records, to securely destroy the information and confirm in writing the date and the means by which the information was securely destroyed,

(b) respond to the notice and demand within the required time, or

(c) adequately demonstrate that

(i)   the personal information was not in the custody or under the control of the public body when the person or entity acquired possession of the information, or

(ii)   the person or entity is authorized by law to possess the personal information,

the head of the public body may ask the Attorney General to petition the superior court in the jurisdiction in which the personal information is located for an order requiring the return of the personal information.

(2) If, after a hearing, the court determines that the personal information is in the possession of a person or an entity not authorized by law to possess the personal information and the public body is entitled to custody or control of the personal information, the court must order the personal information to be delivered to the head of the public body.

(3) The court may issue any order necessary to protect the personal information from destruction, alteration or transfer by the person or entity in possession of the personal information and may order that the personal information be surrendered into the custody of the head of the public body until the court reaches a decision on the petition.

General offences and penalties

74  (1) A person must not willfully do any of the following:

(a) make a false statement to, or mislead or attempt to mislead, the commissioner or another person in the performance of the duties, powers or functions of the commissioner or other person under this Act;

(b) obstruct the commissioner or another person in the performance of the duties, powers or functions of the commissioner or other person under this Act;

(c) fail to comply with an order made by the commissioner under section 54.1 or 58 or by an adjudicator under section 65 (2).

(2) A person who contravenes subsection (1) commits an offence and is liable to a fine of up to $5 000.

(3) Section 5 of the Offence Act does not apply to this Act.

Privacy protection offences

74.1  (1) A person who contravenes section 30.4 (unauthorized disclosure) or 30.5 (notification of unauthorized disclosure) commits an offence.

(2) A person who is a service provider or an employee or associate of a service provider commits an offence if the person does any of the following:

(a) stores or allows access to personal information to which section 30.1 (location and access in Canada) applies contrary to that section;

(b) contravenes section 30.2 (obligation to report foreign demand for disclosure);

(c) contravenes section 30.3 (whistle-blower protection).

(3) If an employee or associate of a service provider

(a) stores or allows access to personal information to which section 30.1 (location and access in Canada) applies contrary to that section,

(b) contravenes section 30.2 (obligation to report foreign demand for disclosure),

(c) contravenes section 30.3 (whistle-blower protection),

(d) contravenes section 30.4 (unauthorized disclosure), or

(e) contravenes section 30.5 (notification of unauthorized disclosure),

in relation to personal information that is held because of the service provider's status as a service provider, the service provider commits an offence.

(4) If a corporation commits an offence under this section, an officer, director or agent of the corporation who authorizes, permits or acquiesces in the commission of the offence also commits an offence, whether or not the corporation is prosecuted for the offence.

(5) A person who commits an offence under this section is liable

(a) in the case of an individual, other than an individual who is a service provider, to a fine of up to $2 000,

(b) in the case of a partnership that is or individual who is a service provider, to a fine of up to $25 000, and

(c) in the case of a corporation, to a fine of up to $500 000.

(6) The time limit for laying an information to commence a prosecution for an offence under this section is

(a) one year after the date on which the act or omission that is alleged to constitute the offence occurred, or

(b) if the minister responsible for this Act issues a certificate described in subsection (7), one year after the date on which the minister learned of the act or omission referred to in paragraph (a).

(7) A certificate purporting to have been issued by the minister responsible for this Act certifying the date referred to in subsection (6) (b) is proof of that date.

(8) In a prosecution for an offence under this section, it is a defence for the person charged to prove that the person exercised due diligence to avoid the commission of the offence.

Fees

75  (1) The head of a public body may require an applicant who makes a request under section 5 to pay to the public body fees for the following services:

(a) locating, retrieving and producing the record;

(b) preparing the record for disclosure;

(c) shipping and handling the record;

(d) providing a copy of the record.

(2) An applicant must not be required under subsection (1) to pay a fee for

(a) the first 3 hours spent locating and retrieving a record, or

(b) time spent severing information from a record.

(3) Subsection (1) does not apply to a request for the applicant's own personal information.

(4) If an applicant is required to pay a fee for services under subsection (1), the head of the public body

(a) must give the applicant a written estimate of the total fee before providing the service, and

(b) may require the applicant to pay a deposit in the amount set by the head of the public body.

(5) If the head of a public body receives an applicant's written request to be excused from paying all or part of the fees for services, the head may excuse the applicant if, in the head's opinion,

(a) the applicant cannot afford the payment or for any other reason it is fair to excuse payment, or

(b) the record relates to a matter of public interest, including the environment or public health or safety.

(5.1) The head of a public body must respond under subsection (5) in writing and within 20 days after receiving the request.

(6) The fees that prescribed categories of applicants are required to pay for services under subsection (1) may differ from the fees other applicants are required to pay for them, but may not be greater than the actual costs of the services.

Power to make regulations

76  (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) prescribing procedures to be followed in making, transferring and responding to requests under this Act;

(b) permitting prescribed categories of applicants to make requests under this Act orally instead of in writing;

(c) setting standards, including time limits, to be observed by officers or employees of a public body in fulfilling the duty to assist applicants;

(d) prescribing for the purposes of section 18 the categories of sites that are considered to have heritage or anthropological value;

(e) authorizing the disclosure of information relating to the mental or physical health of individuals to medical or other experts to determine, for the purposes of section 19, if disclosure of that information could reasonably be expected to result in grave and immediate harm to the safety of or the mental or physical health of those individuals;

(f) prescribing procedures to be followed or restrictions considered necessary with respect to the disclosure and examination of information referred to in paragraph (e);

(g) prescribing special procedures for giving individuals access to personal information about their mental or physical health;

(h) prescribing the classes of individuals who may act for minors, incompetents, deceased persons or any other individuals under this Act and regulating the manner in which, and the extent to which, any rights or powers of individuals under this Act may be exercised on their behalf;

(h.1) respecting the written documentation that confirms that a program or activity is a common or integrated program or activity;

(i) requiring public bodies to provide to the minister responsible for this Act information that relates to its administration or is required for preparing the minister's annual report;

(j) limiting the fees that different categories of persons are required to pay under this Act;

(k) exempting any class of public body from a regulation made under this subsection;

(l) authorizing, for the purposes of section 12 (3) and (4), a local public body to hold meetings of its elected officials, or of its governing body or a committee of the governing body, to consider specified matters in the absence of the public unless another Act

(i)   expressly authorizes the local public body to hold meetings in the absence of the public, and

(ii)   specifies the matters that may be discussed at those meetings;

(m) providing for the retention and disposal of records by a public body if the Document Disposal Act does not apply to the public body;

(m.1) defining any word or expression used but not defined in this Act;

(n) for any purpose contemplated by this Act.

(2.1) The Lieutenant Governor in Council, after consultation with the commissioner, may make regulations as follows:

(a) for the purposes of section 26 (d);

(b) for the purposes of section 36.1 (1), respecting how data-linking initiatives must be carried out.

(3) and (4) [Repealed 2002-13-16.]

(5) A regulation made under subsection (1), (2) or (2.1) may provide differently for different classes of public bodies.

Ministerial regulation making power

76.1  (1) The minister responsible for this Act may, by regulation, amend Schedule 2 to do one or more of the following:

(a) add to it any agency, board, commission, corporation, office or other body

(i)   of which any member is appointed by the Lieutenant Governor in Council or a minister,

(ii)   of which a controlling interest in the share capital is owned by the government of British Columbia or any of its agencies, or

(iii)   that performs functions under an enactment;

(b) designate or change the designation of the head of a public body;

(c) delete from it an agency, board, commission, corporation, office or other body that

(i)   no longer exists, or

(ii)   no longer meets the criteria established by paragraph (a).

(2) The minister responsible for this Act may, by regulation, amend Schedule 3 to do one or more of the following:

(a) add to it the name of the governing body of a profession or occupation if

(i)   any member of that body is appointed by the Lieutenant Governor in Council, a minister or an Act, or

(ii)   the profession or occupation is governed under an Act;

(b) delete from it a governing body that

(i)   no longer exists, or

(ii)   no longer meets the criteria established by paragraph (a).

Power to make bylaws

77  A local public body, by bylaw or other legal instrument by which the local public body acts,

(a) must designate a person or group of persons as the head of the local public body for the purposes of this Act, and

(b) [Repealed 2011-17-30.]

(c) may set any fees the local public body requires to be paid under section 75.

Appropriation

78  In the absence of an appropriation for the purpose under another Act, expenditures incurred in connection with the administration of this Act may be paid out of the consolidated revenue fund.

Relationship of Act to other Acts

79  If a provision of this Act is inconsistent or in conflict with a provision of another Act, the provision of this Act prevails unless the other Act expressly provides that it, or a provision of it, applies despite this Act.

Review of Act

80  (1) At least once every 6 years, a special committee of the Legislative Assembly must begin a comprehensive review of this Act and must submit a report respecting this Act to the Legislative Assembly within one year after the date of the appointment of the special committee.

(2) A report submitted under subsection (1) may include any recommended amendments to this Act or any other Act.

(3) For the purposes of subsection (1), the first 6 year period begins on October 4, 1997.

Right to disclose preserved

81  A public body that, before October 4, 1993, disclosed names, addresses and drivers' licence numbers to the Tuberculous and Chest Disabled Veterans' Association may continue, despite section 33, to disclose that information to the association if it undertakes not to use the information except for the purposes for which it used that information before that date.

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