The Freedom of Information and Protection of Privacy
Act – Implications for Corporate Secretaries
Lynne Golding
Partner
Fasken Martineau DuMoulin LLP
September 15, 2011
OUTLINE
1. Overview of the Freedom of Information and
Protection of Privacy Act
2. The Role of the Board
3. The Role of the Corporate Secretary
4. Creating an Inventory of Records
5. Types of Requests for Records and Responses
6. Responding to Requests for Records
7. General Advice
8. Questions
2
Freedom of Information and Protection of
Privacy Act (“FIPPA”) – Overview
•
On January 1, 2012, hospitals will become subject to FIPPA
•
FIPPA has two main purposes:
1. Establishes an access to information regime that
permits individuals to seek access to recorded
information under the custody or control of institutions;
and
2. Protects personal information by regulating the
collection, use, disclosure, accuracy, retention and
destruction of personal information by institutions
3
FIPPA – Access to Information Regime
Anyone can make a request for:
• General records (e.g., contracts, reports, etc.)
(a “general records request”)
• One’s own personal information*
(a “personal information request”)
*Generally, only an individual (or his or her personal
representative) can make a personal information request
4
FIPPA – Access to Information Regime
What is meant by “record”?
•
“Any record of information however recorded, whether in printed
form, on film, by electronic means or otherwise” including,
correspondence, a memorandum, a book, a plan, a drawing, a
diagram, a pictorial or graphic work, a photograph, a film, a
microfilm, a sound recording, a videotape, a machine readable
record, any other documentary material, regardless of physical
form or characteristics
•
Includes both “official” and “unofficial” records including:
 draft versions of documents
 working papers
 files on hard drives, servers, portable electronic devices
 e-mails and Blackberry messages
and many more…
5
FIPPA – Access to Information Regime
Right of access to records applies to records that are in the
control or custody of hospitals; however, this right is limited by
a few factors:
• Retroactive only to January 1, 2007
• Certain information excluded from FIPPA – meaning that FIPPA
does not apply to the information
• Certain records exempted from FIPPA – meaning that if an
exemption applies, the head must (in the case of a mandatory
exemption) or may (in the case of a discretionary exemption) refuse
to disclose the record (or the part of the record to which the
exemption applies)
6
Responsibilities under FIPPA – Generally
“Head” = Chair of the Board (public hospital)
Head is responsible for:
1. Administration of FIPPA (e.g., ensuring personal
information is collected, used and disclosed only as
authorized, compiling data for annual FIPPA report to
the Information and Privacy Commissioner)
2. Decision-making under FIPPA (e.g., granting or
refusing access to information (including determining
the grounds on which access will be refused), deciding
how records will be redacted where exemptions apply)
7
Powers and Duties of the Head Delegation
8
•
FIPPA permits the Head to delegate any of his or her
powers or duties in writing to an officer or officers of the
hospital (or another institution)
•
Head may impose limitations, restrictions, conditions or
requirements as part of written delegation
•
Head remains ultimately accountable for any power or
duty that is delegated
Support for the Head
Suggested Implementation and Support Structure
•
Senior Management Lead
•
FOI and Privacy Committee
•
FOI and Privacy Coordinator
•
Departmental Leads (Corporate Secretaries)
•
Board of Directors (the “Board”)
9
The Role of the Board
• FIPPA does not define any role for the Board (other than the
Board Chair, as Head)
• However, members of the Board will have a role to play in
overseeing implementation and ongoing compliance with
FIPPA
10
The Role of the Board
Prior to January 1, 2012
•
Ensuring steps are being taken to implement FIPPA to ensure that
the hospital is able to fulfill access and privacy obligations under
FIPPA on January 1, 2012 (including establishing a framework that
fits with the hospital’s organizational structure)
•
Ensuring the hospital has adequate resources to meet access and
privacy obligations under FIPPA (e.g., training, personnel)
•
Receiving and considering reports regarding FIPPA related activities
and compliance
•
Possibly:
• reviewing specific delegations (e.g., on an annual basis)
• deciding which records are suitable for proactive disclosure
11
The Role of the Board
Beginning on January 1, 2012
•
•
•
•
12
Receiving periodic reports from key FIPPA personnel regarding
FIPPA-related activities
Receiving notice of FIPPA-related activities which are particularly
significant or contentious (e.g. complaints, appeals, those activities
which have the potential to influence hospital policies/procedures)
Responding to issues regarding compliance and resources
Possibly:
• reviewing specific delegations (e.g., on an annual basis)
• deciding which records are suitable for proactive disclosure
• providing records for disclosure
The Role of the Corporate Secretary
•
Assisting in completing inventory of records (acting in
capacity of departmental lead)
•
Conducting searches for records in response to requests for
records which are held by (or may be held by) the Corporate
Secretary
•
Assisting the Head (or delegate) in decisions regarding
disclosure (including application of exemptions) of records
in corporate secretary’s possession
13
Creating an Inventory of Records
• As part of preparing for the expansion of FIPPA, hospitals must be
aware of what records are in its custody or control
• This knowledge will assist hospitals in effectively and efficiently
responding to FOI requests, maintaining compliance with FIPPA’s
privacy obligations and meeting their reporting obligations to the
Information and Privacy Commissioner of Ontario
• In order to create such awareness, hospitals should complete an
inventory of records that are in their custody or control (a “Records
Inventory”)
• Hospitals should begin compiling this Records Inventory as soon as
possible
14
Records Inventory
• Hospital Lead should consult with different groups within the hospital
that possess records in order to review records, record classification
plans, retention and disposal schedules and other resources that
describe records in the control or custody of hospitals
Marketing /
Public
Relations
Corporate
Secretary
Hospital Lead
Etc.
Etc.
Human Resources
Purchasing/
Procurement
15
Types of Records Likely to be in
Possession of Corporate Secretaries
 Corporate governance
policies and committee
terms of reference
 List of members of the
Board of Directors and its
committees
 Minutes of the meetings of
members
 Minutes of the meetings of
the Board of Directors and
its committees
 Agendas of the meetings
of the members (including
materials circulated with
agendas)
 Agendas of the meetings
of the Board of Directors
and its committees
(including materials
circulated with agendas)
 Correspondence of the
Board of Directors and its
committees
 Minute books, documents
and registers of the
hospital and its Board of
Directors
 Documents related to the
hospital’s corporate status
16
Records Inventory Worksheet*
SAMPLE
Record Inventory Worksheet of:
Subject of the Record
Hospital members
(2010-2011)
Board of Directors (2010-2011)
Committees of the Board of
Directors (2010-2011)
Agendas for meetings of the Board
of Directors (2010-2011)
Terms of reference of committees
of the Board of Directors (20102011)
Date Completed:
Time Period Covered:
Brief
Description
List of members
of the hospital
for the years
2010-2011
List of members
of the Board of
Directors for the
years 20102011
List of members
of committees
of the Board of
Directors for the
years 20102011
Agendas of all
meetings of the
Board of
Directors
during 2010,
and 2011 (to
date), including
materials
circulated with
agendas
Full copies of
terms of
reference for all
committees of
the Board of
Directors for
2010 and 2011
(to date)
Location
Completed By (Name and Position:
Format
Retention/Disposal
Status
Main
Campus, A
Wing
Paper and
Electronic
In accordance with section
4 of Hospital Retention
Policy
Final
Main
Campus, A
Wing
Paper and
Electronic
In accordance with section
4 of Hospital Retention
Policy
Final
Main
Campus, A
Wing
Paper and
Electronic
In accordance with section
4 of Hospital Retention
Policy
Final
Main
Campus, A
Wing
Paper and
Electronic
In accordance with section
4 of Hospital Retention
Policy
Final
Main
Campus, A
Wing
Paper and
Electronic
In accordance with section
4 of Hospital Retention
Policy
Final
[ETC…]
17
*This chart is based on a similar chart in the Ontario Hospital Association’s Hospital
Freedom of Information Toolkit
Records Inventory
• Each department will submit its inventory of records to the hospital
lead for his or her approval
• After reviewing the inventory of records, the hospital may decide to:




identify records that may be suitable for proactive disclosure
update record management resources and policies
consolidate or organize records
review notice and consent forms, scripts and related
documents to include acknowledgement of application of
FIPPA to hospitals and ensure appropriate notice of
collection of personal information
• Once the inventory of records from each group is finalized, the
consolidated Records Inventory will be used by the hospital as a
resource for responding to FOI requests and in the initial
submission of the directory of records by the hospital
18
Responding to Requests for Records
RECAP:
• Certain information excluded from FIPPA
• Right of access applies to records in the control or custody
of hospitals unless an exemption applies
• Two types of exemptions:
1. Mandatory exemptions – means the head must
refuse access to the record*
2. Discretionary exemptions – means the head may
refuse access to the record*
19
* Or, where the exemption applies only to part of the record, to the part of the
record that the exemption applies to
Requests for Records – Overview
Requester
(1) Request for records made
to hospital (forwarded to FOI
and Privacy Office, as needed)
Hospital
(2) Corporate Secretary is
contacted where records are or
may be in his or her
possession (as determined by
reference to hospital-wide
inventory of records)
20
(3) Corporate Secretary will
then search records
(including, by reference to
inventory of records) to
determine whether
responsive records are
within his or her possession
(FOI and
Privacy Office)
Corporate
Secretary
Inventory of
Records
(5) FOI and Privacy Office
may provide responsive
records (if any) to requester
(with any redactions as
necessary) or may refuse
access altogether on basis
of exclusion or exemption
(4) Corporate Secretary will
provide any responsive records
to FOI and Privacy Office (and
may assist the FOI and Privacy
Office and the responsible
delegate to determine: (i)
whether exemptions apply; and,
if so, (ii) whether information
should be redacted on the basis
of exemptions)
Types of Requests and Responses
Request: List of the members of a Board committee
Response:
•
Names and addresses for service of committee members who are
directors is public information and therefore, subject to disclosure
Names of committee members who are not directors may also be
subject to disclosure
Other information that may form part of the responsive record, such as the
address of the committee members who are not directors, may be exempt
on the basis of:
• Personal Information Exemption (s.21 of FIPPA) – applies to
“personal information about an identifiable individual”
• “Personal Information” is broadly defined; includes such information
as: the address of an individual, information relating to an individual’s
age or sex, information relating to an individual’s education
• where Personal Information Exemption applies, the head must generally
refuse to disclose the information that is subject to the exemption
•
•
21
Types of Requests and Responses
Request: List of the members of a Board committee
Response: (*Note: Shaded text represents text which would be
redacted)
ANYWHERE HOSPITAL – LIST OF MEMBERS OF BOARD COMMITTEE A
Name of Member
Anyname, Joe (Director of
the Board)
Member Since
2007
Anyname, Jill (Director of
the Board)
2008
Noname, Jack (Director of
the Board)
2005
Noname, Jennifer
2011
Someone, Fred
2010
[ETC…]
22
Address for Service
123 Anywhere Street,
Anytown, Ontario
416-555-5555
[email protected]
321 Anywhere Street,
Anytown, Ontario
905-555-5555
[email protected]
111 Anyplace Street,
Anyplace, Ontario
555-555-5555
[email protected]
222 Anyplace Street,
Anyplace, Ontario
555-555-1234
[email protected]
333 Anyplace Street,
Anyplace, Ontario
613-555-5555
[email protected]
Redacted
on basis
of s.
21(1)
Types of Requests and Responses
Request: Board minutes
Response:
•
•
•
Although FIPPA provides a discretionary exemption for information
with respect to “closed meetings” (s.18.1), that exemption only applies
where a statute authorizes the Board or committee of the Board to hold the
meeting in the absence of the public
No statute authorizes the Board or committees of the Board to hold incamera meetings; therefore, it is unlikely that this exemption will apply to
hospitals
Other exemptions may apply to information contained in the minutes:
• excluded information (e.g., certain human resources, labour relations
information) (s. 65 of FIPPA)
• third party information (e.g., other organizations, vendors / suppliers to
hospital) (s. 17 of FIPPA)
• personal information (s. 21 of FIPPA)
• advice or recommendations (e.g., recommendations from officers,
pending policy decisions) (s. 13 of FIPPA)
23
Types of Requests and Responses
Request: Board minutes
Board minutes prior to redaction
Minutes of the Board of Directors, March 1, 2010
…
The Chair called upon Ms Peterson, Chair of the Finance Committee, to report on its
recommendation regarding the purchase of 20 acres of land next to the Hospital, as set out in the
minutes of the last meeting of the Finance Committee. Ms Peterson took the board through a
Powerpoint presentation which showed the exact location of the property, its potential future
uses; the purchase price. She introduced the Board to Mr. Deepak, a valuation expert from
Toronto, who spoke to the likely range of value for the property. Ms Peterson then moved the
following resolution (seconded by Ms Gill):
BE IT RESOLVED that the Hospital purchase the 20 acre parcel to the north of the Hospital;
provided that the purchase price is not more than $20,000,000 and provided that financing can
be obtained on terms no less favourable to the Hospital than those set out in the term sheet
presented to the Board.
The Chair called for discussion of the motion. Mr. Nichols questioned the valuation of the
property, which is currently a vacant field. He pointed out his personal knowledge of other farm
properties that have sold around the Town. For example, the old Laidlaw property sold last year
for $750,000 an acre and widow Houston’s farm sold for only $500,000 an acre six months later.
He acknowledged that old Hal Houston, before he died, tinkered with factory equipment in his
barn and there was likely to be soil contamination, but whether that was known to the City
purchaser who acquired it wasn’t sure.
…
24
24
Types of Requests and Responses
Request: Board minutes
Suggested redactions
The Chair called upon Ms Peterson, Chair of the Finance Committee, to report on its
recommendation regarding the purchase of 20 acres of land next to the Hospital, as set out in the
minutes of the last meeting of the Finance Committee. Ms Peterson took the board through a
Powerpoint presentation which showed the exact location of the property, its potential future
uses; the purchase price. She introduced the Board to Mr. Deepak, a valuation expert from
Toronto, who spoke to the likely range of value for the property. Ms Peterson then moved the
following resolution (seconded by Ms Gill):
BE IT RESOLVED that the Hospital purchase the 20 acre parcel to the north of the Hospital;
provided that the purchase price is not more than $20,000,000 and provided that financing can
be obtained on terms no less favourable to the Hospital than those set out in the term sheet
presented to the Board.
The Chair called for discussion of the motion. Mr. Nichols questioned the valuation of the
property, which is currently a vacant field. He pointed out his personal knowledge of other farm
properties that have sold around the Town. For example, the old Laidlaw property sold last year
for $750,000 an acre and widow Houston’s farm sold for only $500,000 an acre six months later.
He acknowledged that old Hal Houston, before he died, tinkered with factory equipment in his
barn and there was likely to be soil contamination, but whether that was known to the City
purchaser who acquired it wasn’t sure.
25
25
Types of Requests and Responses
Request: Board minutes
Full redactions with applicable exemptions
The Chair called upon Ms Peterson, Chair of the Finance Committee, to report on its
recommendation regarding the purchase of 20 acres of land next to the Hospital, as set out in the
minutes of the last meeting of the Finance Committee. Ms Peterson took the board through a
Powerpoint presentation which showed the exact location of the property, its potential future uses;
the purchase price. She introduced the Board to Mr. Deepak, a valuation expert from Toronto,
who spoke to the likely range of value for the property. Ms Peterson then moved the following
resolution (seconded by Ms Gill):
26
BE IT RESOLVED that the Hospital purchase the 20 acre parcel to the north of the Hospital;
provided that the purchase price is not more than $20,000,000 and provided that financing can be
obtained on terms no less favourable to the Hospital than those set out in the term sheet presented
to the Board.
s.18 (a), (c),
(e), (g)
(economic
interests)
The Chair called for discussion of the motion. Mr. Nichols questioned the valuation of the
property, which is currently a vacant field. He pointed out his personal knowledge of other farm
properties that have sold around the Town. For example, the old Laidlaw property sold last year
for $750,000 an acre and widow Houston’s farm sold for only $500,000 an acre six months later.
He acknowledged that old Hal Houston, before he died, tinkered with factory equipment in his
barn and there was likely to be soil contamination, but whether that was known to the City
purchaser who acquired it wasn’t sure.
s.21(1)
(personal
privacy)
26
General Advice
Therefore…
• Prepare minutes and all correspondence with access in
mind
• Keep the minutes and other correspondence objective and
professional
• Consider whether long or short form minutes will be
prepared
Recordings of Board meetings are also “records” and are
therefore also subject to FIPPA
27
General Advice – Continued
• Keep records inventory accurate and up-to-date so that hospital can
respond to access requests effectively (i.e. all responsive records
are provided) and efficiently (i.e. drawing on the least amount of
resources as possible and within the time limits set by FIPPA)
• Consider which documents could be subject to pro-active disclosure
including (but not limited to):
• documents relating to corporate status of the hospital
• minutes of Board meetings subject to pro-active disclosure*
• lists of directors and members of Board committees*
• corporate governance policies and terms of reference of
committees*
* After severing portions subject to exclusions/exemptions, as necessary
28
Questions
29
30