1st Session, 58th General Assembly
Nova Scotia
48 Elizabeth II, 1999
The Honourable Michael G. Baker
Minister of Justice
First Reading: November 3, 1999
Second Reading: November 8, 1999
Third Reading: November 19, 1999 (WITH COMMITTEE AMENDMENTS)
Royal Assent: November 23, 1999
Be it enacted by the Governor and Assembly as follows:
1 (1) Section 3 of Chapter 5 of the Acts of 1993, the Freedom of Information and Protection of Privacy Act, is amended by
(a) adding "(1)" immediately after the Section number;
(b) striking out "or" at the end of subclause (c)(iii);
(c) adding immediately after subclause (c)(iii) the following subclause:
(iiia) where the public body is a local public body, the person or group of persons designated pursuant to Section 49A as the head, or
(d) adding immediately after clause (c) the following clause:
(ca) "hospital" means any agency, association, board, commission, corporation, office, society or other body that is designated as a hospital pursuant to the Hospitals Act;
(e) adding immediately after clause (e) the following clause:
(ea) "local public body" means
(i) a hospital,
(ii) a university,
(iii) a school board as defined in the Education Act,
(iv) the Collge de l'Acadie established by the Community Colleges Act, or
(v) the Nova Scotia Community College established by the Community Colleges Act;
(f) adding "and includes, for greater certainty, each body referred to in the Schedule to this Act" immediately before "but" in the second last line of subclause (j)(i);
(g) striking out "or" at the end of subclause (j)(ii);
(h) striking out the semicolon at the end of subclause (j)(iii) and substituting ", or";
(i) adding immediately after subclause (j)(iii) the following subclause:
(iv) a local public body;
(j) repealing clause (l) and substituting the following clause:
(l) "Review Officer" means the Review Officer appointed pursuant to Section 33;
(k) striking out the period at the end of clause (n) and substituting a semicolon; and
(l) adding immediately after clause (n) the following clause:
(o) "university" means a person located in the Province, including a natural person, an association of natural persons, a partnership or a corporation that is authorized by the Degree Granting Act to grant any recognition of academic achievement that is called a degree, including degrees of bachelor, master and doctorate.
(2) Subclauses 3(ea)(ii) and (iii) of Chapter 5, as enacted by subsection (1), come into force one year after this Act receives Royal Assent.
2 Chapter 5 is further amended by adding immediately after Section 3 the following Section:
3A (1) The Governor in Council may, by regulation, amend the Schedule to this Act by
(a) adding the name of a body to the Schedule;
(b) deleting the name of a body from the Schedule;
(c) changing the name of a body, as set out in the Schedule, to any other name that the body is given.
(2) For greater certainty, nothing in subsection (1) means or shall be construed as meaning that a school board as defined in the Education Act or a university is a public body before subclauses (ii) and (iii) of clause (ea) of Section 3 come into force by reason only of being referred to in the Schedule to this Act.
3 Subsection 4(2) of Chapter 5 is amended by
(a) striking out "or" at the end of clause (h);
(b) striking out the period at the end of clause (i) and substituting "; or"; and
(c) adding immediately after clause (i) the following clause:
(j) a record of each representation made on behalf of a public body to the Review Officer in the course of a review pursuant to Section 32 and all material prepared for the purpose of making the representation.
4 Chapter 5 is further amended by adding immediately after Section 4 the following Section:
4A (1) Where there is a conflict between a provision of this Act and a provision of any other enactment and the provision of the other enactment restricts or prohibits access by any person to a record, the provision of this Act prevails over the provision of the other enactment unless subsection (2) or the other enactment states that the provision of the other enactment prevails over the provision of this Act.
(2) The following enactments that restrict or prohibit access by any person to a record prevail over this Act:
(a) subsection 121(2) of the Canada-Nova Scotia Offshore Resources Accord Implementation (Nova Scotia) Act;
(b) Section 19 of the Consumer Reporting Act;
(c) Section 51 of the Corporation Capital Tax Act;
(d) Section 7 of the Emergency 911 Act;
(e) Section 19 of the Forests Act;
(f) Section 126 of the Health Act;
(g) Section 71 of the Hospitals Act;
(h) subsection (7) of Section 9 of the Juries Act;
(i) Section 28 of the Labour Standards Code;
(j) Section 32 of the Maintenance Enforcement Act;
(k) subsection (2) of Section 87 and Sections 150 and 175 of the Mineral Resources Act;
(l) subsection (6) of Section 98 of the Motor Vehicle Act;
(m) Sections 53, 61 and 62 of the Occupational Health and Safety Act;
(n) subsection (3) of Section 11 of the Pension Benefits Act;
(o) Sections 72 and 100 of the Petroleum Resources Regulations made pursuant to the Petroleum Resources Act;
(p) subsection (4) of Section 21 of the Primary Forest Products Marketing Act;
(q) Section 48 of the Public Trustee Act;
(r) Section 9 of the Statistics Act;
(s) subsection (3) of Section 9 of the Procedure Regulations made pursuant to the Trade Union Act;
(t) subsection (8) of Section 37 and Section 45 of the Vital Statistics Act;
(u) Sections 23 and 24 of the Young Persons' Summary Proceedings Act.
(3) The Governor in Council may, by regulation, amend subsection (2) by
(a) adding to that subsection a reference to an enactment;
(b) deleting a reference to an enactment from that subsection.
(4) Notwithstanding any other provision in this Act, the provisions in the Vital Statistics Act relating to
(a) rights of access to personal information, including the right to request a search of personal information;
(b) remedial rights relating to the rights described in clause (a);
(c) correction of personal information; and
(d) procedures relating to the matters referred to in clauses (a) to (c), including the payment of fees and the searching of and obtaining access to personal information,
apply in place of the provisions in this Act respecting the matters in clauses (a) to (d).
(5) Notwithstanding any other provision in this Act, the provisions of Section 71 of the Hospitals Act, and any regulations made in respect of Section 71, relating to
(a) rights of access to personal information;
(b) remedial rights relating to the rights described in clause (a); and
(c) procedures relating to the matters referred to in clauses (a) and (b), including the payment of fees and the searching of and obtaining access to personal information,
apply in place of the provisions in this Act respecting the matters in clauses (a) to (c).
5 Section 5 of Chapter 5 is amended by adding immediately after subsection (2) the following subsections:
(2A) Subject to subsection (2B), notwithstanding anything contained in this Act, where the record is an executed contract
(a) in which provision is made for
(i) in the case of an agreement executed by the Province, the Province,
(ii) in the case of an agreement executed by a board, commission, foundation, agency, tribunal, association or other body of persons, within the meaning of subclause (i) of clause (j) of Section 3, the board, commission, foundation, agency, tribunal, association or other body of persons, or
(iii) in the case of an agreement executed by a local public body, the local public body,
to make a substantial transfer of risk to a person, including risk related to the operation or financing, or both, of government activities; and
(b) that is, or is in a class of contracts that is designated, before or within ninety days of the execution of the contract
(i) by regulations by the Governor in Council, where the contract is executed by the Province,
(ii) by the legal decision-making authority by which a board, commission, foundation, agency, tribunal, association or other body of persons, within the meaning of subclause (i) of clause (j) of Section 3, acts where the contract is executed by that board, commission, foundation, agency, tribunal, association or other body of persons, or
(iii) the legal decision-making authority by which a local public body acts where the contract is executed by that local public body,
the right of access extends to any information in the contract that, but for this subsection, would be exempted from disclosure pursuant to this Act.
(2B) Subsection (2A) does not apply in respect of any information in the contract, to which that subsection refers,
(a) respecting trade secrets;
(b) respecting the financial and business information of the person to whom that subsection refers; and
(c) the disclosure of which may reasonably be expected to endanger the safety or health of the public, a person or a group of persons.
6 Subsection 7(2) of Chapter 5 is amended by adding "and the applicant has met the requirements of clauses (b) and (c) of subsection (1) of Section 6" immediately after "received" in the third line.
7 Subsection 10(1) of Chapter 5 is amended by adding ", or such longer period as the Review Officer may determine" immediately after "body" in the second line.
8 Clause 12(1)(a) of Chapter 5 is amended by adding "or" at the end of subclause (iv).
9 Chapter 5 is further amended by adding immediately after Section 19 the following Sections:
19A Where an enactment authorizes a meeting of the elected officials or the governing body of a local public body or a committee of the governing body of the local public body to be held in the absence of the public, the head of the local public body may refuse to disclose to an applicant any record that would reveal
(a) the draft of a resolution, by-law or other legal instrument by which the local public body acts or the draft of a local bill that has been considered at a meeting held in the absence of the public unless the draft or legal instrument requested by the applicant has been considered at a meeting open to the public or the record has been in existence for more than fifteen years; or
(b) the substance of deliberations at a meeting held in the absence of the public unless the subject matter of the deliberations has been considered at a meeting that is open to the public or the record has been in existence for more than fifteen years.
19B (1) In this Section, "local public body" includes the Nova Scotia Agricultural College.
(2) The head of a local public body may refuse to disclose details of the academic research being conducted by an employee of the local public body in the course of the employee's employment.
(3) Notwithstanding subsection (2), where possible, the head of a local public body shall disclose the title and amount of funding being received with respect to the academic research referred to in subsection (2).
19C The head of a university may refuse to disclose to an applicant personal information that is evaluative or opinion material compiled solely for the purpose of
(a) determining the applicant's suitability for
(i) appointment, promotion or tenure as a member of the faculty of a university,
(ii) admission to an academic program, or
(iii) receipt of an honour or award;
or
(b) evaluating the applicant's research projects and materials,
if the information is provided explicitly or implicitly in confidence.
19D (1) The head of a local public body that is a hospital may refuse to disclose to an applicant a record of any report, statement, memorandum, recommendation, document or information that is used in the course of, or arising out of, any study, research or program carried on by or for the local public body or any committee of the local public body for the purpose of education or improvement in medical care or practice.
(2) Subsection (1) does not apply to medical and hospital records pertaining to a patient.
19E The head of a public body may refuse to disclose
(a) any information of any kind obtained by a conciliation board, conciliation officer or mediator appointed pursuant to the Civil Service Collective Bargaining Act, the Corrections Act, the Highway Workers Collective Bargaining Act, the Teachers' Collective Bargaining Act or the Trade Union Act or by an employee of the Department of Labour or an employee, appointee or member of the Civil Service Employee Relations Board, the Correctional Facilities Employee Relations Board, the Highway Workers Employee Relations Board or the Labour Relations Board for the purpose of any of those Acts or in the course of carrying out duties under any of those Acts;
(b) any report of a conciliation board or conciliation officer appointed pursuant to any of those Acts;
(c) any testimony or proceedings before a conciliation board appointed pursuant to any of those Acts.
10 Chapter 5 is further amended by striking out the heading "PROTECTION OF PRIVACY" immediately before Section 20 and substituting the heading "DISCLOSURE HARMFUL TO PERSONAL PRIVACY".
11 (1) Section 22 of Chapter 5 is amended by adding immediately after subsection (1) the following subsection:
(1A) Notwithstanding subsection (1), that subsection does not apply if
(a) the head of the public body decides, after examining the request, any relevant records and the views or interests of the third party respecting the disclosure requested, to refuse to disclose the record; or
(b) where the regulations so provide, it is not practical to give notice pursuant to that subsection.
(2) Subsection 22(2) of Chapter 5 is amended by
(a) adding "and" at the end of clause (a);
(b) striking out "; and" at the end of clause (b) and substituting a period; and
(c) striking out clause (c).
(3) Section 22 of Chapter 5 is further amended by adding immediately after subsection (2) the following subsections:
(3) For greater certainty, the time limited by subsection (2) of Section 7 for responding to a request for access to a record is not extended by reason only that a notice is given to an applicant pursuant to subsection (2) of this Section, but that time may be extended pursuant to Section 9.
(4) In complying with subsections (1) and (2), the public body shall not
(a) disclose the name of the applicant to the third party without the consent of the applicant; or
(b) disclose the name of the third party to the applicant without the consent of the third party.
12 Section 23 of Chapter 5 is amended by adding immediately after subsection (3) the following subsection:
(4) Notwithstanding anything contained in this Section, the head of a public body who has, pursuant to Section 22, given notice to a third party of a request for access to a record may, with the consent of the third party, give access to the record to the person who has made the request before the expiration of the time limited by subsection (3) for the third party to ask for a review.
13 Chapter 5 is further amended by striking out the heading "COLLECTION, PROTECTION AND RETENTION OF PERSONAL INFORMATION" immediately before Section 24 and substituting the heading "PROTECTION OF PERSONAL PRIVACY: COLLECTION, PROTECTION, RETENTION, USE AND DISCLOSURE OF PERSONAL INFORMATION".
14 Section 33 of Chapter 5 is repealed and the following Section substituted:
33 (1) The Governor in Council shall appoint a person to serve full-time as Review Officer.
(2) A person appointed as Review Officer holds that office during good behaviour for a term of not less than five years or more than seven years but shall be removed by the Governor in Council on the passing by the House of Assembly of a resolution carried by a vote of a majority of the members of the House of Assembly voting thereon requiring the Governor in Council to do so.
(3) A person may be re-appointed as Review Officer.
(4) The Review Officer shall be paid out of the Consolidated Fund of the Province such salary as the Governor in Council determines.
(5) Such officers and employees as are necessary to enable the Review Officer to perform the duties of that office shall be appointed in accordance with the Civil Service Act.
(6) The Review Officer shall prepare annually an estimate of the sums required to be provided by the Legislature for the carrying out of this Act during the fiscal year, which estimate shall be transmitted to the Priorities and Planning Committee for its approval and shall be laid before the Legislature with the other estimates for the year.
(7) The Review Officer shall issue an annual report on the exercise of the functions of the Review Officer under this Act and shall lay the report before the House of Assembly.
15 (1) Subsection 37(2) of Chapter 5 is amended by
(a) striking out "and" at the end of clause (b);
(b) striking out the period at the end of clause (c) and substituting "; and"; and
(c) adding immediately after clause (c) the following clause:
(d) any other person the Review Officer considers appropriate.
(2) Section 37 of Chapter 5 is further amended by adding immediately after subsection (2) the following subsection:
(2A) Where, pursuant to clause (d) of subsection (2), the Review Officer considers that a person is an appropriate person to make representations in the course of a review of a decision of the head of a public body, then, notwithstanding any other provision of this Act, that person
(a) is entitled to
(i) a copy of the report of the Review Officer pursuant to Section 39,
(ii) appeal the decision of the head pursuant to Section 41, and
(iii) written notice of an appeal under subsection (2) of Section 41; and
(b) is a party to the appeal to which the notice of appeal referred to in subclause (iii) of clause (a) relates.
16 Section 38 of Chapter 5 is amended by adding "(1)" immediately after the Section number and by adding the following subsections:
(3) Where a public body does not comply with a requirement imposed by the Review Officer pursuant to clause (a) of subsection (1) within the time limited for so doing by subsection (2), a judge of the Supreme Court of Nova Scotia may, on the application of the Review Officer, order the public body to do so.
(4) In an application made pursuant to subsection (3), a judge may give such directions as the judge thinks fit, including ordering which persons shall be parties to the application, which persons shall be given notice of the application and the manner in which such notice shall be given.
(5) An order made pursuant to subsection (3) may contain such provisions and such terms and conditions as the judge thinks fit.
17 (1) Section 41 of Chapter 5 is amended by adding immediately after subsection (1) the following subsections:
(1A) An appeal is deemed not to have been taken pursuant to this Section unless a notice of appeal is given to the Minister by the person taking the appeal.
(1B) Where a notice of appeal is given pursuant to subsection (1A), 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.
(2) Section 41 is further amended by adding immediately after subsection (5) the following subsection:
(6) Where the head of a public body decides to give access to a record or a part of a record after the Review Officer files a report setting out the Review Officer's recommendations respecting the matter, 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 until either the decision of the head is upheld by an order of the Supreme Court and the order becomes final by lapse of time or the decision of the head is upheld by the highest authority to which any further appeal or appeals are taken.
18 Section 47 of Chapter 5 is amended by adding immediately after subsection (1) the following subsection:
(1A) Every person who knowingly alters a record that is subject to a request in order to mislead the person who made the request is guilty of an offence and liable on summary conviction to a fine of not more than two thousand dollars or to imprisonment for six months, or both.
19 Subsection 49(1) of Chapter 5 is amended by
(a) repealing subclauses (f)(ii), (iii) and (iv); and
(b) adding immediately after clause (k) the following clauses:
(ka) amending the Schedule to this Act to the extent permitted by subsection (1) of Section 3A;
(kb) amending subsection (2) of Section 4A to the extent permitted by subsection (3) of that Section;
(kc) designating an executed contract as a public-private partnership or a class of executed contracts as a class of public-private partnerships for the purpose of subsection (2A) of Section 5;
(kd) providing that clause (b) of subsection (1A) of Section 22 applies;
(ke) prescribing time limits for the purpose of subsection (2) of Section 38;
20 Chapter 5 is further amended by adding immediately after Section 49 the following Section:
49A A local public body shall, by by-law or other legal instrument by which the local public body acts, designate a person or group of persons as the head of the local public body for the purpose of this Act.
21 Section 50 of Chapter 5 is repealed and the following Section substituted:
22 Chapter 5 is further amended by adding immediately after Section 52 the following Schedule:
SCHEDULE
Agriculture and Marketing
Apple Maggot Control Board
Artificial Insemination Advisory Board
Crop and Livestock Arbitration Board
Crop Development Institute
Dairy Industry Advisory Committee
Deer Farming Advisory Committee
Farm Machinery Advisory Committee
Farm Management Institute
Farm Registration Advisory Committee
Farm Registration Appeal Committee
Farm Skills Advisory Committee
Fur Institute
a livestock health services board established pursuant to the Livestock Health
Services Act
Marshland Reclamation Commission
Meat Inspection Board
Natural Products Marketing Council
Nova Scotia Beef Commission
Nova Scotia Crop and Livestock Insurance Commission
Nova Scotia Dairy Commission
Nova Scotia Farm Loan Board
Nova Scotia Grain and Forage Commission
Soil Institute
Weed Control Advisory Committee
Wild Blueberry Institute
Business and Consumer Services
Board of Embalmers and Funeral Directors
Medical Advisory Committee on Driver Licensing
Nova Scotia Credit Union Deposit Insurance Corporation
Public Accountants Board of the Province of Nova Scotia
Community Services
an agency within the meaning of the Children and Family Services Act
Economic Development
Bedford Waterfront Development Corporation Limited
Business Development Corporation
InNOVACorp.
Nova Scotia Film Development Corporation
Nova Scotia Voluntary Planning Board
Trade Centre Limited
Trade Council of Nova Scotia
Waterfront Development Corporation Limited
Education
Johnstone (Dr. P. Anthony) Memorial Fund Entrance Scholarship
a university foundation established by the University Foundations Act
Youth Advisory Council
Environment
Nova Scotia Youth Secretariat
On-site Services Advisory Board
Radiation Health Advisory Board
Finance
Halifax-Dartmouth Bridge Commission
Nova Scotia Gaming Corporation
Nova Scotia Power Finance Corporation
Teachers Pension Board
Fisheries and Aquaculture
Nova Scotia Fisheries and Aquaculture Loan Board
Health
Advisory Commission on AIDS
Board of Dispensing Opticians
Board of Examiners in Psychology
Cape Breton Health Care Complex
Denturist Licensing Board
Facilities Review Board under the Hospitals Act
Health Services and Insurance Commission
Ministers Substance Abuse Advisory Board
Nova Scotia Health Council
Seniors' Pharmacare Program Board of Directors
Housing and Municipal Affairs
a housing authority created under the Housing Act
Housing Development Corporation
Municipal Finance Corporation
Human Resources
Civil Service Employee Relations Board
Long-Term Disability Trust Fund Board
Public Sector Compensation Restraint Board
Justice
Nova Scotia Legal Aid Commission
Labour
Board of Examiners appointed pursuant to the Stationary Engineers Act
Board of Examiners for the Certification of Blasters
Board of Examiners of Mining Examinations
Construction Industry Panel of the Labour Relations Board (Nova Scotia)
Fire Prevention Advisory Council
LP Gas Board of Examiners
Labour Relations Board
Labour Standards Tribunal (Nova Scotia)
an appeal panel designated pursuant to the Occupational Health and Safety Act
Occupational Health and Safety Advisory Council
Pay Equity Commission
Natural Resources
Board of Examiners appointed pursuant to the Scalers Act
Natural Resources Advisory Council
Primary Forest Products Marketing Board
Species-at-Risk Working Group
Premiers Office
Election Commission
Tourism and Culture
Gaelic College Foundation
N.S. International Tattoo Society
Nova Scotia Arts Council
Peggys Cove Commission
Schooner Bluenose Corporation
Shubenacadie Canal Commission
Upper Clements Theme Park Board
Transportation and Public Works
Halifax-Dartmouth Port Development Commission
Sydney Environmental Resources Limited
Sydney Harbour Port Regional Development Commission
23 Chapter 5 is further amended by
(a) striking out "a review officer" wherever it appears in Chapter 5 and substituting in each case "the Review Officer";
(b) striking out "the review officer" wherever it appears in Chapter 5 and substituting in each case "the Review Officer";
(c) striking out "A review officer" wherever it appears in Chapter 5 and substituting in each case "The Review Officer";
(d) striking out "The review officer" wherever it appears in Chapter 5 and substituting in each case "The Review Officer";
(e) striking out "a review officer's" wherever it appears in Chapter 5 and substituting in each case "the Review Officer's"; and
(f) striking out "the review officer's" wherever it appears in Chapter 5 and substituting in each case "the Review Officer's".
24 For greater certainty,
(a) the amendments to Chapter 5 made by this Act apply mutatis mutandis to Part XX of the Municipal Government Act to the extent that they may be made to apply to Part XX;
(b) subsections 41(1A) and (1B), as enacted by subsection 17(1), apply to Part XX of the Municipal Government Act; and
(c) subsection 5(2A), as enacted by Section 5, applies to a municipality as defined by Part XX of the Municipal Government Act as if the municipality were a local public body.