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施政透明度vs隐私保护(五):Municipal Freedom of Information & Protection of Privacy Act (MFIPPA) Overview

来源:贴心姐妹网   更新:2015-02-13 10:47:37   作者:Kimberley Kitteringh
施政透明度vs隐私保护(五):Municipal Freedom of Information & Protection of Privacy Act (MFIPPA) Overview
 
图/贴心姐妹网    万锦市市政府
 
万锦市书记长Kimberley Kitteringh在议会大会上向议会成员和市民介绍《资讯自由和隐私保护法》和万锦市议会《操守规则》对议会获取市政府保密文件权限的规定。
 
Municipal Freedom of Information & Protection of Privacy Act (MFIPPA) Overview
 
Presentation to Council
February 10, 2015
 
MFIPPA Background
Purpose of MFIPPA
Who does what?
Access Exemptions
Access Process
Right of Access (Individual Councillors/Council)
Staff Recommendations
 
 
Local government institutions including the City of Markham have been subject to MFIPPA since January 1, 1991
 
With minor exceptions, MFIPPA applies to all records in the custody or control of the City, even if they were created prior to the enactment of the legislation
 
MFIPPA also applies to information provided to the City by other sources, such as businesses, municipalities, government agencies & individuals
 
 
To provide a right of access to City-held information in accordance with the following principles:
 
Information should be available to the public subject to limited & specific exemptions & exclusions
All persons have a right of access to their personal information & to request its correction
Decisions on information access may be subject to independent review by the Information & Privacy Commission of Ontario (IPC)
 
 
To protect individual privacy by:
 
Requiring the City to handle personal information in accordance with the collection, use, retention, disclosure & disposal rules under MFIPPA
 
Providing everyone with a right to complain to the IPC if they feel the City has mishandled their personal information
 
The “Head” of the institution is responsible for MFIPPA decisions 
Markham Council has appointed the City Clerk as the “Head”
The “Head” is responsible for:
Meeting time limits & notification requirements
Considering representations from third parties
Making decisions about the disclosure of records & responding to requests
Determining the method of disclosing records
Responding to requests for correction of personal information
Defending decisions made under MFIPPA at an appeal
Administering the privacy protections of MFIPPA
 
Access Exemptions
 
The right of access applies to an existing record – there is no obligation to create a record
 
The right of access to information is subject to limitations & exclusions prescribed by MFIPPA
 
2 exemption types: Mandatory & Discretionary
Mandatory Access Exemptions
 
The Head MUST NOT release records containing:
Personal Information about individuals other than the requester (Section 14)
Third Party Information supplied in confidence & its disclosure could prejudice the interests of the third party (Section 10)
Relations with other governments if information is supplied in confidence (Section 9)
 
Discretionary Access Exemptions
 
The Head MAY choose not to release records relating to:
Draft by-laws, minutes of closed meetings
Advice & recommendations of staff
Law enforcement
Economic interest of the City
Solicitor-client privilege
Danger to a person’s health or safety
Information about to be published or made publicly available
Discretionary Access Exemptions (Cont’d)
 
MFIPPA prescribes a 2-stage process for determining whether a discretionary exemption is to be applied:
The Head must determine whether the facts exist or may exist which bring the record requested within the exemption
The Head must decide whether he/she is willing to release the record despite the existence of grounds for the exemption
A decision by the Head to disclose information falling within an exemption is an exercise of discretion
 
Access Process
 
Formal MFIPPA requests submitted to Head in writing & must be accompanied by prescribed fee
Head has 30 days to respond  
Before issuing a response, the Head must undertake the following:
Determine if records exist
Determine if the City has custody & control of the records
Retrieve the records
Determine if third party notifications are required
Determine if exemptions apply
If appropriate, sever exempt material from the records
Determine the final fee for the records
 
Right of Access - Individual Councillors
 
Under MFIPPA, individual Councillors have the same rights of access to City records as a member of the public
A Councillor does not have greater rights of access to confidential information by virtue of office unless it is required to carry out their official duties
Councillors may request City information under MFIPPA – the Head will process this in the same manner as public access requests 
 
Right of Access – Individual Councillors (Cont’d)
 
Section 2.1 of Markham’s Council Code of Conduct states: “In addition to the Council Code of Conduct, Members are required to comply with existing provincial or federal legislation, including but not limited to:
Municipal Act, 2001
Municipal Conflict of Interest Act
Municipal Elections Act, 1996
Municipal Freedom of Information & Protection of Privacy Act
Ontario Human Rights Code
Ontario Occupational Health & Safety Act
Criminal Code of Canada.”
 
Right of Access – Individual Councillors (Cont’d)
 
Section 6 of Markham’s Council Code of Conduct states: “MFIPPA restricts or prohibits disclosure of information received in confidence from third parties of a corporate, financial, commercial, scientific or technical nature, information that is personal, and information that is subject to solicitor client privilege.  
 
Section 6.1 of Markham’s Council Code of Conduct further states: “Members will not disclose or release any Confidential Information, in  either oral or written form, acquired by virtue of their office, except when authorized by Council. Council may not authorize the disclosure of Confidential Information which the City is prohibited from disclosing under MFIPPA.”
Right of Access – City Council
 
Municipal Councils may not circumvent the process set out in MFIPPA by passing a resolution to release documents
 
“One of the purposes of MFIPPA is to ensure access decisions regarding the disclosure of information are reviewed independently of the institution controlling the information.  To permit City Council to avoid the application of MFIPPA by directing access to a record rather than requesting it would thwart one of the purposes of the legislation.”*
 
* Excerpt from a 2010 Superior Court of Justice decision by Madame Justice Corrick involving a request by Toronto City Council for access to personal information held by the City
 
Recommendations
 
That Markham City Council give deference to the appeal process established in the Municipal Freedom of Information & Protection of Privacy Act & await the decision of the IPC; 
That Markham City Council continue to comply with the  Council Code of Conduct with respect to the disclosure of confidential information; 
That the Head write to the IPC to urge them to render an expeditious  decision with respect to the two outstanding appeals; &
That Staff report back when the IPC has rendered a decision.
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