HomeMy WebLinkAboutCD-33-90 TOWN OF NEWCASTLE
J
REPORT F.
le # , 6
Res. #
By-Law
SING: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
DATE: NOVEMBER 19, 1990
REPORT #: CD-33-90 FILE #:
S(IB,ECT: MUNICIPAL FREEDOM OF INFORMATION AND
PROTECTION OF PRIVACY ACT, 1989
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report CD-33-90 be received;
2 . THAT, in accordance with Section 3 (1) of the Municipal
Freedom of Information and Protection of Privacy Act, 1989,
the Mayor be designated as the "Head" of the Town of
Newcastle for the purpose of the Act;
3 . THAT the Town Clerk be appointed the Freedom of Information
and Privacy Co-ordinator and that, in accordance with
Section 49 ( 1) of Municipal Freedom of Information and
Protection of Privacy Act, 1989, the powers and duties
vested in the "Head" be delegated to the Town Clerk;
4 . THAT, notwithstanding Recommendation 3 above, the
responsibility regarding the release of any personnel and
related personal information, be delegated to the Chief
Administrative Officer; and i
5 . THAT a by-law, being a by-law to designate the Mayor as
"Head" be presented to Council.
Continued . . . . ./2
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Report CD-33-90 - 2 - November 19, 1990
BACKGROUND AND COMMENT:
1. 0 Overview of the Act
The Municipal Freedom of Information and Protection of
Privacy Act (FOI) comes into effect January 1, 1991.
Under the Act, the right to government information is
established as well as the right to protection of
personal privacy. Some exceptions to these rights do
exist, but they are limited and specific . The Act
requires the FOI Co-ordinator to reply to all FOI
requests within 30 calendar days and provides for an
independent review of decisions by institutions . An
individual who disagrees with the decision on his/her
access request can appeal the decision to the
Information and Privacy Commissioner.
2 .0 Definitions
2 . 1 Record
The term "record" is broadly defined in Section 2 of
the Act to include any record of information, however
recorded. This includes any book, correspondence,
manual, paper, photograph, microfilm, map, minutes,
report, sound or video recordings, drawing, chart,
card, machine readable material, magnetic media,
computer tapes and disks, documentary material or any
copy or printout that has been generated or received by
the organization in connection with the transaction of
public business and preserved for any period of time by
the Town as evidence of the organization, functions,
policies, decisions, procedures, or operations .
Therefore, records control will have to be in place so
that the information can be found efficiently when
needed. In responding to requests within the 30
calendar day period required by the Act, it will be
important to know whether the record exists and
retrieve the right information quickly. Only then can
it be determined if the information will be made
available.
2 .2 Personal Information
By definition, personal information includes recorded
information pertaining to an individual relating to
his/her:
Continued . . . . . /3
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Report CD-33-90 - 3 - November 19, 1990
- Race, national or ethnic origin, colour, religion,
age, sex, sexual orientation, or marital or family
status;
- Education, financial transactions or medical,
psychiatric, or psychological history;
- Any identifying number, symbol or other particular
assigned to the individual;
- Personal opinions or views, except if they relate
to another individual;
- Name, if it appears with other personal
information relating to the individual or where
the disclosure of the name would reveal other
personal information about the individual;
- Address, telephone number, fingerprints, or blood
type; and
- Views or opinions of another person about the
individual.
3. 0 The Process
All staff within the Town will have to be made aware of
the Act. All departments, are required to adhere to
the requirements of the legislation.
The Act is not intended to replace the normal process
of providing information. The legislation will take
effect when a person has been denied access and
proceeds to make their formal FOI request through the
Clerk's Department.
All departments routinely respond to oral and written
requests from the public and this informal process of
obtaining information will remain the same. If the
information is provided to the public prior to the Act
coming into effect, it will continue to be available
subject to privacy protection provisions of the Act.
However, if the information was not available prior to
the Act coming into effect, it may then have to be,
subject to the various exemptions provided in the Act.
Continued . . . . ./4
6 (.) 't
Report CD-33-90 - 4 - November 19, 1990
The legislation recognizes that a municipality has
legitimate reasons to maintain the confidentiality of
certain records . Therefore, there are exemptions to
access set out in the legislation.
The legislation provides for the protection of privacy.
All employees will have to be more cautious when
releasing information. For this reason, any request
regarding personnel and related personal information
will be co-ordinated through the Chief Administrative
Officer.
For records containing personal information,
the Town will have to know who uses the information,
for what purpose and to whom the information is
disclosed and why. Identifying forms used by the
Corporation, especially those used to collect personal
information, is also important because we will be
required to give notice that the information is being
collected and the purpose for which it is collected.
The legislation provides for an independent review.
The Commissioner assesses the situation and makes a
decision which is final and binding.
The preparation of a description of the organization's
records and personal information for use by the public
in exercising access and privacy rights will be
required by January 1, 1991. Each department will be
requested to forward the descriptions of their records
to the Clerk's Department who will co-ordinate the
records holdings and publish a directory of the Town
records and personal information holdings which will
then be available to the public.
There are fees which can be applied, however, these
will be addressed in the Regulations which will be
published prior to the legislation coming into effect.
The first two hours of search time will be without
charge. Fees cannot be charged for time used in
decision making, just for time in locating files . Fees
cannot be charged to employees seeking their own
personal information.
Continued . . . . . /5
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Report CD-33-90 - 5 - November 19, 1990
Section 48 ( 1) outlines the following offences under
the Act: no person shall wilfully disclose personal
information or wilfully maintain a personal information
bank in contravention of the Act, make a request under
the Act for access to or correction of personal
information under false pretences; wilfully obstruct
the Commissioner in the performance of his or her
functions under the Act, or wilfully fail to comply
with an order of the Commissioner. Section 48 (2)
states that every person who contravenes Section 48 ( 1)
is guilty of an offence and on conviction is liable to
a fine not exceeding $5,000 .
4 . 0 Responsibilities/Duties
4. 1 The Head
The "Head" is responsible for making decisions on
access to records . Section 3 of the legislation states
that the members of the Council may, by by-law,
designate from amongst themselves an individual or
committee to act as Head of the Corporation for the
purposes of the Act. If no person is designated, the
Head shall be the entire Council. For ease of
administering the legislation, it is recommended that a
by-law be passed designating the Mayor as the Head.
4 .2 The Freedom of Information and Privacy Co-Ordinator
Section 49 ( 1) of the Act allows for the Head to
delegate a power or duty vested in him/herself to an
officer or employee of the institution. Since the Act
involves administrative and reporting requirements
which can only be satisfied through some form of
centralized reporting, it is recommended that the Town
Clerk be appointed as Information and Privacy
Co-Ordinator.
This centralized co-ordination will be beneficial where
records are in more than one department, with no one
department clearly responsible for the records . By
implementing central co-ordination, it provides for:
Continued . . . . . /6
Report CD-33-90 - 6 - November 19, 1990
- Administrative accountability for all actions made
under the legislation; and
Development of expertise and consistency in the
application of the Act across all departments .
The powers and duties of the FOI Co-ordinator under the
Act are as follows:
To provide for the co-ordination of administrative
activities and reporting requirements relating to
the legislation;
Making record descriptions available;
Clarifying the request with the requester, where
required, i.e. , what records are being requested
(the request will have to be specific, such that
only records pertinent to the request are
reviewed) ;
- Issuing notices;
- Preparing the records for disclosure;
- Copying the records where required;
- Severing the records;
- Responding to the requester;
- Adhering to time limits and notification
requirements;
- Notifying the requester in writing of the
decision;
- Administering fees;
- Responding to requests for correction of personal
information;
- Administering the privacy protection provisions of
the legislation;
Continued . . . . . /7
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Report CD-33-90 - 7 - November 19, 1990
Forwarding and transferring requests for
information relating to a responsibility other
than the Town's to the appropriate body; and
Reporting statistics annually to the Information
and Privacy Commissioner.
4 . 3 Department Head
Each Department Head will assist with processing an FOI
request by locating requested records, ensuring
accuracy of information and adhering to time limits and
notification requirements .
It is recommended that each department head act as the
"contact" for the department for FOI purposes . These
individuals require a thorough knowledge and
understanding of their records management program, both
paper-based and computer-based systems, and
administrative operations of their respective
departments .
The contacts would be able to perform the following:
- Inform all employees who have direct daily contact
with the public about the Act, as they must be
able to recognize and channel FOI requests;
- Review their present practices for releasing
information;
- Provide clear communication to staff regarding old
procedures which no longer apply;
- Inform the appropriate employees involved in order
to comply with the personal privacy provisions
governing the collection, use, disclosure, and
disposal of personal information; and
- Forward the general descriptions of records
holdings to the Clerk's Department.
Continued . . . . . /8
6U
Report CD-33-90 - 8 - November 19, 1990
The Department Heads will forward all documentation
pertaining to the FOI request to the Co-ordinator. The
FOI Co-ordinator will review the material and make a
decision in consultation with the appropriate
management staff, department head, and/or solicitor.
Should disputes arise, the FOI Co-ordinator will act
upon the opinion of the solicitor.
If a request can be responded to within a shorter
period than 30 calendar days, we are obliged to do so.
The Commissioner may come in and look at any records
management practices and FOI procedures in place should
he find it necessary.
Respectfully submitted Recommended for Presentation
} to Committee
1
1 1
Patti,-t. Bar le, A.M.C.T.'
Lawrence M.C. I.P.
A ,
`owf Clerk Chief i
strative Officer
PLB/ms
Attachment
THE CORPORATION OF THE TOWN OF NEWCASTLE
BY-LAW 90-
being a by-law to designate a head of
the Municipal Corporation for the purposes
of the Municipal Freedom of Information and
Protection of Privacy Act, 1989
WHEREAS under Section 3, Subsection 1-of the Municipal Freedom of
Information and Protection of Privacy Act, 1989, S.O. 1989,
Chapter 63, the Council of a municipal corporation may by by-law
designate from among its members an individual or a committee of
the Council to act as head of the municipal corporation for the
purposes of the Act;
AND WHEREAS the Council deems it necessary and expedient to
designate a head for the purposes of the Act;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF
NEWCASTLE ENACTS AS FOLLOWS:
1. THAT the Mayor be designated as head for the purposes of the
Municipal Freedom of Information and Protection of Privacy
Act, 1989.
2. THAT this by-law shall come into force and effect on
January 1, 1991
By-law read a first and second time this 26th day of
November 1990
By-law read a third time and finally passed this 26th day of
November 1990
MAYOR
CLERK
I,