British Columbia’s public sector privacy legislation, the Freedom of Information and Protection of Privacy Act (“FIPPA”) was amended on November 25, 2021. The amendments represent the first substantive changes to FIPPA in a decade, and include updates and new provisions for freedom of information (“FOI”), the data residency, and the mandatory breach notification and privacy management programs.
This Article focuses on changes to the FOI provisions. For details on the changes to the data residency requirements, see Changes to Privacy Law: FIPPA, Data Residency Rules and Privacy Impact Assessments. For details on the changes to the mandatory breach notification and privacy management programs provisions, see Changes to Privacy Law: FIPPA, Breach Notification and Privacy Management Programs.
FIPPA was introduced in 1993 and applies to more than 2,900 public bodies, including:
- provincial government ministries
- provincial agencies, boards and commissions, and provincial Crown corporations, as listed in Schedule 2 of FIPPA; and
- local public bodies, such as municipalities, regional districts, improvement districts, universities, colleges, school boards, municipal police forces, hospitals, and self-governing professional bodies (such as the College of Physicians and Surgeons and the Law Society of BC), as listed in Schedule 3 of FIPPA.
The purpose of FIPPA is to make public bodies more accountable to the public and protect personal privacy by, amongst other things, providing the public a right of access to records.
Under FIPPA, persons are entitled to access records in the custody or under the control of a public body, including records containing personal information about the applicant. To access records, the applicant must make a written request to the public body with enough detail to enable the public body to identify the record sought. The public body has a duty to assist applicants with their request, and respond to the request within 30 days of receiving it, unless the time limit is extended in accordance with FIPPA.
The right of access is exercised through FOI requests over 10,000 times yearly and over 13,000 times in 2019-2020. Around 40% of requests are applicants requesting their own personal information. It is routinely used by news organizations, opposition political parties, and individuals to access, investigate and report on government actions. FOI requests are a way for citizens to interact with their government.
Application of FOI Provisions
Section 3 of FIPPA sets out the application of the Act. In November 2021 s. 3(3)(h) was amended to clarify that FIPPA does not apply to either questions or answers used on an examination or test; prior to the amendment the exception was only carved out for questions. Section 3(5) was also added to FIPPA, which states that the FOI provisions of the Act do not apply to: records that do not relate to the business of the public body, metadata and electronic records that have been lawfully deleted by the employee of a public body and can no longer be accessed.
Fees for FOI Requests
Under s.75 of FIPPA public bodies are entitled to charge a fee for some of the work to respond to requests. Specifically, public bodies may charge a fee for locating, preparing, shipping and providing records where processing the request takes more than 3 hours. Fees to produce records are collected in fewer than 2% of FOI requests. The average cost to the government for processing an FOI request is $3,000.00 and the annual cost to the government is $31 million.
In November 2021, s.75 was amended to introduce a fee for making requests, except where the applicant is requesting their own personal information (the “Request Fee”). The Request Fee is set by regulation and is currently set at $10 per request.
The Request Fee applies for each application made. Where the information is held by different public bodies, applicants are required to pay the fee for every public body included in the request. Currently, the opposition government files 600 requests a year; each month it files a request to each ministry and the Premier’s office for a list of ministerial briefing notes, issue notes and decision notes, which adds up to 50 requests a month. The Request Fee has been described as a toll on the information highway.
The criticism is based on the concern that the Request Fee will have the effect of deterring important FOI requests, and disproportionately affecting students, smaller media outlets, and marginalized groups. However, the Ministry of Citizens’ Services, which introduced the amendments, explained that the Request Fee was introduced as a way to encourage applicant to provide more specificity in their requests.
Each public body has discretion on whether to charge the Request Fee. Some charge it as a matter of process, such as the Provincial Health Services Authority, while others have not integrated it into their processes at this time.
Power to Disregard or Refuse FOI Requests
FIPPA allows the Commissioner to authorize a public body to disregard an FOI request. Section 43, which deals with this power, was reorganized and broadened by the Amendments. It allows requests to be disregarded where the request is frivolous or vexatious. Requests may also be disregarded where the information has already been disclosed to the applicant or is accessible from another source, in these situations the public body has a duty to assist the applicant, which could include pointing them to where they may find the information. As of November 2021, requests may also be disregarded in situations where responding to the request would unreasonably interfere with the operations of the public body because it is excessively broad or repetitious or systematic. For example, requests for “all emails”.
Moreover, s.18(1) was added to FIPPA to require the head of a public body to refuse to disclose information if the disclosure could reasonably be expected to harm the rights of indigenous people in relation to cultural heritage, traditional knowledge, traditional cultural expressions, and manifestations of sciences, technologies or cultures.
As the amendments are implemented and acted on it will be important to see how FIPPA’s goal of accountability is served by these amendments.