BILL NO. 157
(as introduced)
2nd Session, 58th General Assembly
Nova Scotia
51 Elizabeth II, 2002
Freedom of Information and Protection of Privacy Act
(amended)
Kevin Deveaux
Cole Harbour-Eastern Passage
First Reading: November 19, 2002
Second Reading:
Third Reading:
Explanatory Notes
Subclause 1(1) provides that an applicant who requests information pursuant to the Freedom of Information and Protection of Privacy Act shall pay a fee in the amount of five dollars.
Subclause 1(2)(a) sets out the maximum fees that may be charged for the services referred to in subsection 11(2) of the Freedom of Information and Protection of Privacy Act; and
(b) provides that an applicant is not required to pay a fee for the first two hours spent locating and retrieving a record.
Subclause 1(3) adds additional provisions to the Freedom of Information and Protection of Privacy Act dealing with estimated fees and the waiving of fees.
Subclause 2(1) enables a person who believes their right of protection of personal privacy has been violated to request a review.
Subclause 2(2) removes the provisions in the Freedom on Information and Protection of Privacy Act that require a person to pay a fee for a review of a decision under the Act.
Subclauses 3(1) and (2) provide that the appointment of the Review Officer must be by unanimous consent of all parties in the House of Assembly.
Subclause 3(3) provides that the Review Officer cannot be removed from office unless at least two thirds of the members of the House of Assembly vote in favour of the removal.
Subclause 3(4) adds new provisions dealing with the powers and duties of the Review Officer.
Clause 4 broadens the role of the Review Officer.
(a) amends the powers of the Review Officer by requiring the Review Officer to issue orders rather than make recommendations respecting the disposition of matters under review;
(b) requires the head of a public body to comply with an order of the Review Officer or appeal the order to the Supreme Court; and
(c) makes certain necessary changes arising from the issuance of orders by the Review Officer.
Clause 6 makes certain necessary changes arising from the issuance of orders by the Review Officer.
Clause 7 changes the standard for an offence under the Freedom of Information and Protection of Privacy Act, adds new offences to the Act and increases the fine from a maximum of $2,000 to a maximum of $5,000.
Clause 8 removes the authority of the Governor in Council to make regulations prescribing or limiting the fees to be paid pursuant to the Freedom of Information and Protection of Privacy Act.
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 (1) Subsection 11(1) of Chapter 5 of the Acts of 1993, the Freedom of Information and Protection of Privacy Act, is amended by striking out "the application fee prescribed by the regulations" in the second and third lines and substituting "an application fee in the amount of five dollars".
(2) Section 11 of Chapter 5, as amended by Chapter 5 of the Acts of 2002, is further amended by adding immediately after subsection (2) the following subsections:
(a) for locating and retrieving a record, ten dollars for each half hour of person time, rounded down to the nearest half hour;
(b) for producing a record manually, ten dollars for each half hour of person time, rounded down to the nearest half hour;
(c) for producing a record from a machine-readable record, the actual cost incurred for computer usage and for developing a computer program to produce the record;
(d) for preparing a record for disclosure and handling a record, ten dollars for each half hour of person time, rounded down to the nearest half hour;
(e) for shipping a record, the actual costs of the shipping method chosen by the applicant;
(f) where the record is stored or recorded in printed form and can be copied on conventional photocopying equipment, twenty cents a page for providing a copy of the record;
(g) where the record is stored or recorded in a manner other than that referred to in clause (f) or cannot be reproduced on conventional photocopying equipment, the actual cost of reproduction for providing a copy of the record.
(3A) Notwithstanding subsection (2), an applicant is not required to pay a fee for the first two hours spent locating and retrieving a record.
(3) Section 11 of Chapter 5, as amended by Chapter 5 of the Acts of 2002, is further amended by adding immediately after subsection (8) the following subsections:
(9) Where an applicant is not required to pay and has not paid an estimated fee in advance pursuant to subsection (6) and the head of the public body has not waived the payment of the fee, the applicant shall pay the fee for services when access to a record is given or refused.
(10) A head of a public body shall refund to an applicant any fee paid for services pursuant to subsection (2) that is subsequently waived.
(11) Where the actual cost of responding to an application is less than the estimated fee paid by an applicant pursuant to subsection (6), the head of the public body that responds to the application shall refund the difference to the applicant.
(12) The following are additional circumstances in which a head of a public body may waive the payment of all or part of a prescribed fee:
(a) where the applicant is given access to the record;
(b) if the amount of the payment would be five dollars or less or where the amount of the payment is too small to justify requiring a payment.
2 (1) Subsection 32(1) of Chapter 5 is amended by adding "or who believes that their right to protection of personal privacy as provided in Sections 24 to 31 has been violated" immediately after "information" in the third line.
(2) Subsections 32(4) to (6) of Chapter 5 are repealed.
3 (1) Subsection 33(1) of Chapter 5, as enacted by Chapter 11 of the Acts of 1999 (2nd Session), is amended by adding ", on the recommendation of the House of Assembly," immediately after "Council" in the first line.
(2) Section 33 of Chapter 5, as enacted by Chapter 11 of the Acts of 1999 (2nd Session) is further amended by adding immediately after subsection (1) the following subsection:
(1A) The House of Assembly shall not recommend a person pursuant to subsection (1) until a special committee of the House has unanimously recommended to the House that the person be appointed.
(3) Subsection 33(2) of Chapter 5, as enacted by Chapter 11 of the Acts of 1999 (2nd Session), is amended by striking out "a majority" in the sixth line and substituting "at least two thirds".
(4) Section 33 of Chapter 5, as enacted by Chapter 11 of the Acts of 1999 (2nd Session), is further amended by adding immediately after subsection (7) the following subsections:
(8) No proceedings lie against the Review Officer, or against a person acting on behalf of or under the direction of the Review Officer, for anything done, reported or said in good faith in the exercise or performance or the intended exercise or performance of a duty, power or function under this Act.
(9) The Review Officer may delegate to any person any duty, power or function of the Review Officer under this Act, except the power to delegate under this Section.
(10) A delegation under subsection (9) shall be in writing and may contain any conditions or restrictions the Review Officer considers appropriate.
(11) The Review Officer and anyone acting for or under the direction of the Review Officer shall not disclose any information obtained in performing their duties, powers and functions under this Act, except as provided in subsections (12) to (14).
(12) The Review Officer may disclose, or may authorize anyone acting on behalf of or under the direction of the Review Officer to disclose, information that is necessary to
(a) conduct an investigation, audit or inquiry under this Act; or
(b) establish the grounds for findings and recommendations contained in a report under this Act.
(13) In conducting an investigation, audit or inquiry under this Act and in a report under this Act, the Review Officer and anyone acting for or under the direction of the Review Officer shall take every reasonable precaution to avoid disclosing and shall not disclose
(a) any information the head of a public body would be required or authorized to refuse to disclose if it were contained in a record requested under Section 6; or
(b) whether information exists, if the head of a public body in refusing to provide access does not indicate whether the information exists.
(14) The Review Officer may disclose to the Attorney General information relating to the commission of an offence against an enactment of the Province or the Parliament of Canada if the Review Officer considers there is evidence of an offence.
(15) Except where expressly provided for in this Act, the Review Officer or anyone acting under the direction of the Review Officer shall keep confidential and take all reasonable steps to secure personal information and records that come into the possession of the Review Officer.
(16) Before assuming their duties under this Act, the Review Officer and such other officers and employees appointed pursuant to this Section shall swear an oath or affirm that they will faithfully perform their duties and responsibilities under this Act and maintain the confidentiality of information made known or coming into their possession.
4 Chapter 5 is further amended by adding immediately after Section 33 the following Section:
33A In addition to the Review Officer's powers and duties under Sections 38 and 39, the Review Officer is generally responsible for monitoring how this Act is administered to ensure that its purposes are achieved, and may
(a) conduct investigations and audits to ensure compliance with this Act;
(b) make an order described in subsection 39(2) whether or not a review is requested;
(c) inform the public about this Act;
(d) receive comments from the public about the administration of this Act;
(e) engage in or commission research into anything affecting the achievement of the purposes of this Act;
(f) comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies;
(g) comment on the implications for access to information or for protection of privacy of automated systems for the collection, storage, analysis or transfer of information;
(h) comment on the implications for protection of privacy of using or disclosing personal information for record linkage;
(i) authorize the collection of personal information from sources other than the individual the information is about; and
(j) bring to the attention of the head of a public body any failure to meet the prescribed standards for fulfilling the duty to assist applicants.
5 Sections 39 to 41 of Chapter 5 are repealed and the following Sections substituted:
39 (1) On completing a review, the Review Officer shall dispose of the issues by making an order under this Section.
(2) Where the review is of a decision of the head of a public body to give or to refuse to give access to all or part of a record, the Review Officer shall, by order, do one of the following:
(a) require the head to give the applicant access to all or part of the record, if the Review Officer determines that the head is not authorized or required to refuse access;
(b) either confirm the decision of the head or require the head to reconsider it, if the Review Officer determines that the head is authorized to refuse access; or
(c) require the head to refuse access to all or part of the record, if the Review Officer determines that the head is required to refuse access.
(3) Where the inquiry deals with any other matter, the Review Officer may, by order, do one or more of the following:
(a) confirm that a duty imposed by this Act or the regulations has been performed or require that a duty imposed by this Act or the regulations be performed;
(b) confirm or reduce the extension of a time limit under Section 9;
(c) confirm, excuse or reduce a fee, or order a refund, in the appropriate circumstances, including if a time limit is not met;
(d) confirm a decision not to correct personal information or specify how personal information is to be corrected;
(e) require a public body to stop collecting, using or disclosing personal information in contravention of this Act or confirm a decision of a public body to collect, use or disclose personal information;
(f) require the head of a public body to destroy personal information collected in contravention of this Act.
(4) The Review Officer may specify any terms or conditions in an order made under this Section.
(5) The Review Officer shall give a copy of an order made under this Section to all of the following:
(a) the person who asked for the review;
(b) the head of the public body concerned;
(c) any person given notice under subsection 34(3); and
(d) the Minister.
40 (1) Not later than thirty days after being given a copy of an order of the Review Officer, the head of the public body concerned shall comply with the order unless an application for appeal to the Supreme Court of Nova Scotia of the order is brought before that period ends.
(2) Where an application for appeal to the Supreme Court of Nova Scotia is brought before the end of the period referred to in subsection (1), the order of the Review Officer is stayed from the date the application is brought until the Supreme Court orders otherwise.
41 (1) Within thirty days after receiving an order from the Review Officer pursuant to Section 40, an applicant, a third party or the head of a public body may appeal that order to the Supreme Court of Nova Scotia in such form and manner as may be prescribed by the Civil Procedure Rules or by the regulations.
(2) An appeal is deemed not to have been taken pursuant to this Section unless a notice of appeal is given to the Minister and the Review Officer by the person taking the appeal.
(3) Where a notice of appeal is given pursuant to this Section, the Minister may become a party to the appeal by filing with the prothonotary of the Supreme Court of Nova Scotia a notice stating that the Minister is a party to the appeal.
(4) The head of a public body who has taken an appeal shall immediately give written notice of the appeal to the applicant and any third party that the head of the public body
(a) has notified pursuant to this Act; or
(b) would have notified pursuant to this Act if the head of the public body had intended to give access to the record or part of the record.
(5) An applicant or a third party who has been given notice of an appeal pursuant to subsection (4) may appear as a party to the appeal.
(6) Where the head of a public body intends to comply with the order of the Review Officer to give access to a record or a part of a record, the head shall not give access until the time limited for a third party taking an appeal from the decision to the Supreme Court of Nova Scotia expires and
(a) no appeal has been taken by a third party from the decision within the time limited for so doing; or
(b) where an appeal has been taken within that time by a third party, it has subsequently been abandoned or withdrawn,
but, where an appeal is taken by a third party, the head shall not give access as ordered by the Review Officer until either the order of the Review Officer is upheld by an order of the Supreme Court and the order becomes final by lapse of time or the order of the Review Officer is upheld by the highest authority to which any further appeal or appeals are taken.
6 (1) Subsection 42(3) of Chapter 5 is amended by
(a) striking out "give access to a record or part of a record" in the fourth line of clause (a) and substituting "comply with an order of the Review Officer"; and
(b) striking out "give access" in the third line of clause (b) and substituting "comply with an order of the Review Officer".
(2) Subsection 42(5) of Chapter 5 is repealed and the following subsection substituted:
(5) Where the head of the public body has refused to comply with an order of the Review Officer, the Supreme Court of Nova Scotia, if it determines that the head of the public body is not authorized to refuse to comply with an order of the Review Officer, shall
(a) order the head of the public body to comply with the order of the Review Officer, subject to any conditions that the Supreme Court considers appropriate; or
(b) make any other order that the Supreme Court considers appropriate.
(3) Subsection 42(6) of Chapter 5 is amended by striking out "give the applicant access to the record" in the third and fourth lines and substituting "comply with the order of the Review Officer".
7 Subsections 47(1) and (1A) of Chapter 5 are repealed and the following subsection substituted:
(1) Every person who knowingly
(a) collects or discloses personal information in contravention of this Act or the regulations;
(b) alters a record that is subject to a request in order to mislead the person who made the request;
(c) makes a false statement to, or misleads or attempts to mislead, the Review Officer or another person in the performance of the duties, powers or functions of the Review Officer or other person under this Act;
(d) obstructs the Review Officer or another person in the performance of the duties, powers or functions of the Review Officer or other person under this Act;
(e) informs any other person of the identity of a person who requests access to information, the correction of personal information or a review pursuant to Section 32 unless there is reason to believe that there exists a risk to the personal safety of any person; or
(f) fails to comply with an order made by the Review Officer under Section 39,
is guilty of an offence and liable on summary conviction to a fine of not more than five thousand dollars or to imprisonment for six months, or both.
8 Clause 49(1)(b) of Chapter 5 is repealed.
This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2002 Crown in right of Nova Scotia. Updated November 19, 2002. Send comments to legc.office@novascotia.ca.
