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BILL NO. 45





Private Member s Bill




4th Session, 56th General Assembly
Nova Scotia
45 Elizabeth II, 1996




An Act to Amend Chapter 5

of the Acts of 1993,

the Freedom of Information

and Protection of Privacy Act





John F. Hamm, M.D.
Pictou Centre




Halifax
Printed by Queen s Printer for Nova Scotia







Explanatory Notes

Clause 1 expands the application of the Act to include each body that has fifty per cent or more of its members, board of directors or board of managers appointed by the Governor in Council or that is receiving financial assistance from the Government of Nova Scotia.

Clause 2 removes from the Act a provision that deemed an application for information to have been refused when there is no response to the application within thirty days after the application is made.

Clause 3 provides that before the head of a public body may extend for a period longer than thirty days the time for responding to a request, there must be, where the applicant has supplied sufficient detail to identify the record, not only the permission of the review officer to do so, which is now the case, but also

(a) consultation between the review officer and the applicant respecting the extension; and

(b) the agreement of the review officer and the applicant on the length of the extension. Subclause 4(1) removes a provision that enabled the Governor in Council to fix the amount of the application fee by regulation and replaces it with a provision that fixes the application fee at $25.00.

Subclause 4(2) limits the circumstances under which the head of a public body may require an applicant to pay the costs complying with a request to where the costs exceed $150.00.

Subclause 4(3) exempts an applicant from the obligation to pay an application fee and the costs of providing information where the request has been transferred from one public body to another and the transfer is not made within the ten-day deadline set out in the Act.

Subclause 4(4) enables the head of a public body to excuse a member of the House of Assembly from paying the costs of complying with a request for information made by the member.

Clause 5 removes a provision that enabled the head of a public body to disclose to the public, to an affected group or to applicant information that is clearly in the public interest and replaces it with a provision that requires the head of the public body to do so.

Clause 6 removes a provision that enabled the Governor in Council to designate a review officer and replaces it with a provision that requires the Governor in Council to designate as a review officer only a person who has been unanimously recommended by an all-party committee of members of the House of Assembly.

Clause 7 removes from the Act provisions that required a review officer to make recommendations and permitted the head of a public body not to follow them and replaces them with a provision that requires a review officer to make a decision and embody the decision in an order.

Clause 8

(a) requires the head of the public body to comply with the order of the review officer; and

(b) provides a procedure whereby an adjudicator may, on request, review the decision and order of a review officer and

(i) confirm the decision and order,

(ii) set aside the decision and order under,

(iii) vary the decision and order,

(iv) substitute the adjudicator's decision and order for the decision and order under review.

Clause 9 replaces an appeal to the Supreme Court from a decision of the head of a public body with an appeal to the Court from the order of an adjudicator.

Clause 10 sets out the circumstances under which the Court may, on an appeal, award costs to an applicant. Clause 11 removes a provision that enabled the Governor in Council to fix the amount of fees to be paid pursuant to the Act.

Clause 12 provides for an all-party committee of members of the House of Assembly to make recommendations to Government respecting the expansion of the application of the Act to bodies other than the bodies to which it now applies and respecting other amendments the committee thinks appropriate.


An Act to Amend Chapter 5

of the Acts of 1993,

the Freedom of Information

and Protection of Privacy Act





Be it enacted by the Governor and Assembly as follows:

1 Clause 3(j) of Chapter 5 of the Acts of 1993, the Freedom of Information and Protection of Privacy Act, is amended by

(a) renumbering subclauses (i), (ii) and (iii) as (ii), (iii) and (iv) respectively and adding immediately preceding subclause (i) renumbered as (ii) the following subclause:

(i) a board, commission, foundation, agency or tribunal, whether incorporated or unincorporated,

(A) fifty per cent or more of the members of which or the members of the board of managers or board of directors of which are appointed by order of the Governor in Council, or

(B) where the board, commission, foundation, agency or tribunal is receiving financial assistance from Her Majesty in right of the Province,

and

(b) striking out "a board, commission, foundation, agency, tribunal," in the second and third lines of subclause (i) renumbered as (ii) and substituting "an".

2 Subsection 7(3) of Chapter 5 is repealed.

3 (1) Subsection 9(1) of Chapter 5 is amended by adding "and after the review officer consults the applicant and they mutually agree on the length of the extension" immediately after "permission" in the fourth line.

(2) Section 9 of Chapter 5 is further amended by adding immediately after subsection (1) the following subsection:

(1A) Notwithstanding subsection (1), the head of a public body may extend the time for responding to a request for a period longer than thirty days without consulting with the applicant but with the review officer agreeing on the extension where the applicant does not give enough detail to enable the public body to identify a requested record.

4 (1) Subsection 11(1) of Chapter 5 is amended by striking out "prescribed by the regulations" in the third line and substituting "in the amount of twenty-five dollars".

(2) Subsection 11(2) of Chapter 5 is amended by adding "where the cost of the services exceeds one hundred and fifty dollars" immediately after "services" in the third line.

(3) Subsection 11(4) of Chapter 5 is amended by adding "or to a request that has been transferred by the head of a public body to another public body later than ten days after the request was received from the applicant" immediately after "information" in the second line.

(4) Subsection 11(7) of Chapter 5 is amended by adding "if the applicant is a member of the House of Assembly" immediately after "(2)" in the third line.

5 Subsection 31(1) of Chapter 5 is repealed and the following subsection substituted:

(1) Whether or not a request for access is made, the head of a public body

(a) shall disclose to the public, to an affected group of people or to an applicant information about a risk of significant harm to the environment or to the health or safety of the public or a group of people; and

(b) may disclose to the public, to an affected group of people or to an applicant information the disclosure of which is, for any other reason, clearly in the public interest.

6 Subsection 33(1) of Chapter 5 is repealed and the following subsections substituted:

(1) The Minister shall constitute a committee consisting of one member of the Government Caucus, one member from the caucus of the party of the Leader of the Opposition and one member from the caucus of the party of each leader of a recognized party as defined in the House of Assembly Act, each such member to be chosen by each such caucus.

(1A) The purpose of the committee constituted pursuant to subsection (1) is to recommend a tribunal, member of a tribunal or other person to the Governor in Council as a review officer for the purpose of conducting a review pursuant to Section 32.

(1B) Where the committee unanimously recommends a tribunal, member of a tribunal or other person as a review officer, the Governor in Council shall designate the tribunal, member of a tribunal or other person as a review officer for the purpose of conducting a review pursuant to Section 32.

7 Subsection 39(1) of Chapter 5 is amended by

(a) striking out "recommendations" in the second line of clause (a) and substituting "decision";

(b) striking out "those recommendations" in the third and fourth lines of clause (a) and substituting "the decision and an order disposing of the matter in accordance with the decision"; and

(c) adding "and the order" immediately after "report" in the first line of clause (b).

8 Section 40 of Chapter 5 is repealed and the following Sections substituted:

40 (1) Not later than thirty days after the head of a public body receives a copy of an order of a review officer, the head of the public body shall comply with the order.

(2) Notwithstanding subsection (1), that subsection does not apply while the order is stayed by subsection (3).

(3) Where a request for a review of the decision and order of a review officer is made pursuant to Section 40B, the order is stayed until the matter is finally disposed of by the adjudicator pursuant to Section 40C.

40A (1) The Governor in Council may designate a judge of the Supreme Court as an adjudicator to review decisions and orders made by the review officer.

(2) An adjudicator may retain the services of any persons necessary to assist the adjudicator in performing the adjudicator's functions pursuant to this Act.

40B (1) The head of a public body to which a decision and order of a review officer relates, a person who has a made the request for the review by the review officer or a third party notified pursuant to Section 22 of the request for access may ask for a review, by the adjudicator, of the decision and order of the review officer.

(2) To ask for a review by an adjudicator of a decision and order of a review officer, a written request shall be delivered to the Minister within thirty days after the person asking for the review is notified of the decision and order or such longer period as may be allowed by the adjudicator.

(3) On receiving a request for a review, the Minister shall immediately forward the request to an adjudicator and shall give a copy of the request to

(a) the review officer who made the decision and the order;

(b) the head of the public body to which the decision and order relates, where the request for the review is made by a person other than that public body; and (c) any other affected person.

40C (1) For the purpose of conducting a review, an adjudicator has the same powers and duties conferred or imposed on a review officer by this Act.

(2) On completing a review of a decision and order, an adjudicator may

(a) confirm the decision and order;

(b) set aside the decision and order;

(c) vary the decision and order;

(d) substitute the adjudicator's decision and order for the decision and order under review.

40D (1) Not later than thirty days after the head of a public body receives a copy of an order of an adjudicator, the head of the public body shall comply with the order.

(2) Notwithstanding subsection (1), that subsection does not apply while the order is stayed by subsection (3).

(3) Where an order of an adjudicator is appealed to the Supreme Court pursuant to Section 41, the order is stayed until the appeal is finally disposed of by the Court.

9 (1) Subsection 41(1) of Chapter 5 is amended by

(a) striking out "the head of a public body pursuant to Section 40" in the second line and substituting "and order of an adjudicator, the head of the public body to which the decision and order relates"; and

(b) adding "and order" immediately after "decision" in the third line.

(2) Subsection 41(5) of Chapter 5 is repealed and the following subsection substituted:

(5) Neither the review officer nor the adjudicator shall be a party to an appeal.

10 Section 42 of Chapter 5 is amended by adding immediately after subsection (6) the following subsection:

(7) On an appeal, the Supreme Court may award costs to the applicant, where the applicant is successful or where the Court considers it to be in the public interest to award costs to the applicant.

11 Clause 49(1)(b) of Chapter 5 is repealed.

12 Chapter 5 is further amended by adding immediately after Section 49 the following Section:

49A (1) Not later than six months after the first general election of members of the House of Assembly that is held after the coming into force of this Section, the Minister shall constitute a committee consisting of one member of the Government Caucus, one member of the caucus of the party of the Leader of the Opposition and one member from the caucus of the party of each leader of a recognized party as defined in the House of Assembly Act, each such member to be chosen by each such caucus.

(2) The purpose of a committee constituted pursuant to subsection (1) is to make recommendations to the Governor in Council respecting the expansion of the application of this Act to bodies other than to bodies to which the Act now applies or would apply by reason of the exercise by the Governor in Council of the authority conferred by clause 49(1)(f) and such other recommendations for amendment of this Act as the committee thinks appropriate.

(3) The committee shall not make a recommendation unless

(a) the recommendation is unanimous; and

(b) the recommendation is made within six months after the committee is constituted.

(4) Before making recommendations pursuant to subsection (3), the committee shall hold hearings throughout the Province for the purpose of hearing representations from the public as to what recommendations the committee should make to the Governor in Council.



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