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HomeMy WebLinkAboutCLD-016-07 CJN.-4Jgron REPORT CLERK'S DEPARTMENT Meeting: General Purpose and Administration Committee KCJ-; k;\cc) II ::/-tG t')-':) -523--0-~ Date: April 23, 2007 Report #: CLD-016-07 File#: By-law #: Subject: FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY POLICY RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report CLD-016-07 be received; and 2. THAT the Freedom of Information and Protection of Privacy Policy be approved. Reviewed b.o ~~ G..Ju. Franklin Wu, Chief Administrative Officer PLB CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 F 905-623-6506 REPORT NO.: CLD-016-07 PAGE 2 BACKGROUND AND COMMENT The Municipal Freedom of Information and Protection of Privacy Act has been in effect since 1991. The purposes of the Act are to: 1) provide a right of access to information under the control of institutions in accordance with the principles that, a) information should be made available to the public, b) necessary exemptions from the right of access should be limited and specific, c) decisions on the disclosure of information should be reviewed independently of the institution controlling the information; and 2) protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information. Since the legislation was introduced, the Municipality has been complying with the requirements of the Act, however, a formal policy has not been adopted by Council. The attached policy has been prepared to outline the requirements of the Act and to specifically identify the responsibilities of members of Council, the Chief Administrative Officer and Department Heads. It is respectfully recommended that the policy be endorsed by Council. ATTACHMENT: Freedom of Information and Protection of Privacy Policy CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1 C 3A6 T 905-623-3379 F 905-623-6506 CfNilJgtoo Administrative and Corporate Policies H-25 - FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY Section: Category: Subsection: Application: H Operations H25 All Employees Date Approved: Last Revised: Approved by: April 30, 2007 Council 1. Purpose: To provide a corporate program for access to information and protection of privacy, particularly on how the Municipal Freedom of Information and Protection of Privacy Act applies to information in the possession of the Municipality of Clarington. 2. Objective: The objective of this policy is to: I. Ensure that information is made available to the public and necessary exemptions from the right of access are limited and specific. 2. Identify roles and assign responsibility regarding the use and disclosure of corporate information. 3. Commit to protecting the privacy of individuals with respect to personal information about themselves held by the Municipality and to provide individuals with the right of access to their information. 4. Establish guidelines for processing requests for information within the timeline restrictions imposed by the Act. 5. Communicate offences and liabilities as stated in the Act. Page I of 5 - Non-Affiliated and Others - H25 3. Definitions: 1. For Co-ordinator - F or the purposes ofthis policy and related procedures, the Municipal Clerk is designated as the For Co-ordinator. 2. Head - For the purposes ofthe Act, the Head is the Mayor. The powers and duties of the Head have been delegated to the For Co-ordinator, however, the Head still remains accountable for actions taken and decisions made under the Act. 3. Information and Privacy Commissioner - The Information and Privacy Commissioner is appointed by the Lieutenant Governor in Council. The Commissioner is an officer of the Legislature and is independent of the government. The Commissioner hears appeals of decisions made by Heads of institutions, issues binding orders, conducts privacy investigations, and has certain powers relating to the protection of personal privacy. 4. Record - Any information, however recorded, whether in printed form, on film, by electronic means or otherwise, and includes correspondence, memoranda, books, plans, maps, drawings, diagrams, pictorial or graphic works, photographs, films, microfilms, sound recordings, videotapes, machine-readable records. 5. Request, Formal - A request for access to or copies of a record which is submitted in writing detailing the requested records, is dated and signed by the requester. This type of request should be received only after the informal request has been denied. 6. Request, Informal- A verbal request for access to or copies of a record. May also be referred to as an over-the-counter or routine request. All requests should begin informally and requesters should only formally submit a request as a last resort. 7. Routine Disclosure - The routine or automatic release of certain types of administrative and operational records in response to informal rather than formal requests. 4. Responsibilities: Councillors - General Information Councillors may have a right of access to certain types of information that would not be available to the general public ifthey require the information in their capacities as members of council in order to carry out duties related to that function. Council members seeking access to information that is not ordinarily available to the public should direct their request to the appropriate department head. The department head, together with the Municipal Clerk, will review the information to ensure that disclosure of information to the councillor is in accordance with legislative requirements. Depending on the nature and type of information requested, the information provided to Councillors may be stamped "CONFIDENTIAL". In these circumstances, the information in question is considered to be confidential and the council member is prohibited from releasing the information in any format, without the express authorization of council. The same is true Page 2 of 5 - Non-Affiliated and Others - H25 for information provided to councillors in preparation of closed councilor committee meetings. There may be circumstances in which a councillor, who is not acting within his or her official capacity as member of council, requests access to information. The councillor may submit a formal request under the Act. In this case, the councillor has the same status as any member of the public when requesting this information, and staff will apply the Act in the normal manner to determine whether access may be granted. Councillors - Personal Information Where a councillor, acting in the capacity of member of council seeks access to personal information of a third party (e.g., an employee or a constituent), he or she may only obtain the personal information if disclosure is specifically authorized under section 32 of the Act. Examples of authorized disclosure are: I. With consent of the individual; 2. In compelling circumstance affecting the health or safety of an individual; 3. In compassionate circumstances, to facilitate contact with the next of kin or a friend of an individual who is injured, ill or deceased; or 4. Where disclosure to council as a whole (i.e., in councilor committee meetings) or to the individual councillor is required to fulfil a duty as an officer under the Municipal Act or other legislation. Councillors who have received access to personal information or other confidential information in the performance of their duties have a responsibility to protect this information while it is in their possession. Councillors must, therefore, ensure that the privacy ofthe individual to whom the information relates is protected at all times, and must keep the information physically secure so as to avoid unauthorized disclosure or destruction. A Councillor's Own Records The provisions of the Act cover records that are in the custody or under the control of the Municipality of Clarington. This includes information created by a third party that has been provided to, or obtained by, the Municipality. Councillors' records are considered personal records that are not subject to the Act where they are not related to the discharge of the councillor's responsibilities as a member of councilor to some aspect to council's mandate and they are not in the custody or control of the municipality. There are factors used to determine issues of custody or control. Even records relating to constituency matters may be accessible if a consideration of the factors leads to the conclusion that they are in the custody or control of the institution. Chief Administrative Officer and Department Heads I. Actively support the For policy. 2. Understand the policy and the principles ofthe Municipal Freedom of Information and Protection of Personal Privacy Act. Page 3 of 5 - Non-Affiliated and Others - H25 3. Forward formal requests for information which are not common to their usual course of business to the For Co-ordinator. 4. Work closely with the For Co-ordinator in the processing ofthe formal requests to ensure compliance within legislated time requirements. For Co-ordinator I. Maintain a thorough knowledge of the For Policy and information request procedures. 2. Receive requests and co-ordinate these requests with Department Heads to comply with legislated time requirements. 3. Communicate with requesters to clarify requests, issue notices and respond to enqmnes. 4. Communicate with Commissioner's Office to respond to enquiries and seek clarification and direction regarding appeals. 5. Seek legal advice from the Solicitor respecting disclosure decisions, as required. 6. Make decisions relative to record disclosure. 7. Determine or waive fees in accordance with Regulations. 8. Conduct For training and orientation. 9. Develop and maintain inter-departmental procedures relative to the FOl Policy. 5. Procedures General Every person (including Corporations) has the right to request records under the custody and control of the Municipality. The Municipality is not obligated to create a record in response to a request and the Municipality has no right to question the purpose of the request. The Act provides that information available to the public before the Act came into force must continue to be available, except personal information. Routine disclosure or usual "over-the- counter" responses to inquires should continue outside the procedures set out. Access Procedure Informal Request - Where possible, requests should be handled through the informal request process. Regardless of where or how a request is submitted, staff shall direct the request to the area of responsibility respecting the requested information. The employee is to dialogue with the requester to discuss the nature of the request and the type of record at issue with a view to determine whether the matter should be handled informally or by means of a formal request under the Act. Typically, ifthe request is simply for information or for an answer to Page 4 of 5 - Non-Affiliated and Others - H25 a question, no specific record is desired. rf a specific record sis requested, the employee shall verify that the record qualifies for routine disclosure. Otherwise, the requestor is directed to the complete a formal Application for Access/Correction of Records. Formal Request ~ Once it has been determined that a formal request is needed, an Application for Access/Correction of Records is to be completed. The application is available through the Municipal Clerk's Department and on the Municipality's website (www.clarington.net). All formal requests are forwarded to the For Co-ordinator who will contact the necessary Department Head to arrange for collection of records pursuant to the scope of the request. The For Co-ordinator is responsible for determining disclosure. Where it is anticipated or understood that the records may be considered solicitor-client privilege, the FOr co-ordinator shall contact the solicitor for legal advice. The FOr Co-ordinator shall issue a Notice of Decision and any other required Notice to the requestor. Page 5 of 5 - Non-Affiliated and Others - H25