Access to Information in a SchoolAngela Markel, Portfolio OfficerOffice of the Saskatchewan Information and Privacy Commissioner

February 18, 2010*This slide left blank intentionally

What are the Laws?Federal Legislation:Access to Information Act (ATIA)Privacy Act Personal Information Protection and Electronic Documents Act (PIPEDA)

Provincial Legislation:The Privacy Act The Freedom of Information and Protection of Privacy Act (FOIP)The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP)The Health Information Protection Act (HIPA)February 18, 2010*

Saskatchewan Information and Privacy CommissionerOversees 3 statutes:The Freedom of Information and Protection of Privacy Act (FOIP)The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP)The Health Information Protection Act (HIPA)Appointed by Legislative Assembly5 year termRight of appeal to Q.B. February 18, 2010*

OIPC MandateComment on privacy implications of proposed legislation/programsRecommend changes in collection, use and disclosure practicesRecommend destruction of improperly collected personal informationAuthorize indirect collectionCarry out investigations to ensure complianceReview decisions of public bodiesUndertake public education on access and privacy mattersSubmit Annual Report to Legislative AssemblyFebruary 18, 2010*

OIPC ActivitiesReports (investigations and reviews) FOIP FOLIO (e-newsletter)Resource MaterialsVideo surveillance guidelinesFaxing GuidelinesBest Practices Mobile Device SecurityPrivacy Breach GuidelinesPamphletsHelpful TipsAnnual ReportsFebruary 18, 2010*

Public information must be accessible;

Personal information must be protected.

The Health Information Protection Act In force since Sept. 1, 2003HIPA applies to trustees:Government institutions (includes Crown Corporations)Regional health authoritiesHealth professionalsAmbulance operatorsPharmaciesMedical laboratoriesWith custody or control of Personal health information

Sets out rules for the collection, use and disclosure of personal health informationFebruary 18, 2010*

What is Personal Health Information?Personal health information includes:Physical or mental health of individualAny health service provided to the individualRegistration informationInformation collected in the course of, or incidentally to, the provision of health servicesFebruary 18, 2010*

HIPA BasicsHIPA does not apply to:Statistical / De-identified health informationPHI of a person deceased for more than 30 yearsRecords that are more than 120 years oldFacilitates information sharing within the circle of careLimits sharing outside that circle of careNeed to Know PrincipleThree forms of consentExpress, implied, deemedRight of complaint to the OIPCFebruary 18, 2010*

The Freedom of Information and Protection of Privacy Act In force since 1992

Applies to government institutions:Government ministries, agencies, boards, commissions, Crown Corporations

Entities under contract to a government institution may have records under the control of a government institutionFebruary 18, 2010*

The Local Authority Freedom of Information and Protection of Privacy Act In force since 1993Applies to local authorities:Universities and CollegesRegional health authoritiesSchool and library boardsMunicipalities, cities and townsAlso, a local authoritys contractorsFebruary 18, 2010*

FOIP & LA FOIPParts II & III deal with accessSets out the rules for access to records in the possession or under the control of a public body; exceptions are limited and specific; provides right to request correction / amendmentPart IV deals with privacyGoverns the collection, use and disclosure of personal information in the possession or control of a public bodyProvides a right to complain to the CommissionerFebruary 18, 2010*

Other Relevant LawsThe Education ActThe Child and Family Services ActThe Childrens Law ActThe Emergency Protection for Victims of Child Sexual Abuse and Exploitation ActThe Public Health ActThe Mental Health Service ActYouth Criminal Justice Act (federal)Divorce Act (federal)February 18, 2010*

Surrogates Clarifies who may act on your behalf:Personal representative of deceased estateLegal guardianAttorney under power of attorneyLegal custodian - where the individual is under 18 and the exercise of the right under the legislation would not constitute an unreasonable invasion of privacy of that individualBy anyone with written authorization from the individualFebruary 18, 2010*

Custody & Access IssuesThe Childrens Law Act provides that:9(2) Unless otherwise ordered by the court, a parent who is granted access to a child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child.

However, having the right to make inquiries and be given information does not necessarily equate to the non-custodial parent being allowed to act on behalf of the child, as a surrogate does under FOIP/LA FOIP. Thus, need to consider what information is being sought and what actions are purported to be taken on the childs behalf. Surrogacy provisions cannot be used to obtain records to further the parents own personal objectives.February 18, 2010*

ACCESS TO INFORMATION

February 18, 2010*

What is FOIPable?FOIP/LA FOIP does NOT apply to:Published materials- Matters of public recordArchival materialsExisting rights preservedDoes not replace existing procedures on access or limit access normally availableDoes not prevent access to registry informationIt does not limit production of documents in court actions or limit information available by lawConfidentiality provisions in other enactments may impact ability to release some information

February 18, 2010*

What is FOIPable?Recorded Information in any form including: documents, letters, handwritten notes, e-mail, photos, drawings, calendars, voice-mail etc.All records in public bodys possession or controlThe responsive record is the package of documents that would be responsive to the applicants access requestCopies of source documentsSummary, condensed, or secondary documents are no satisfactory substitute for source documentsFebruary 18, 2010*

Integrated ServicesIdentify partnersPersonal information or personal health information involved?Who has possession/custody or control of pi or phi?What other statutes may apply?Check for confidentiality & information disclosure provisionsNeed to knowWhat about access?What about consent?What type of consent is required (deemed, implied, express) and in what form (i.e. written)? Determine highest standardWho consents? (youth, guardian, legal representative, etc)What constitutes a proper consent?February 18, 2010*

Integrated ServicesTerms of reference should include the following elements:PurposeAuthorityIntegrated Service ProvidersStatement of use/notificationConsentRecordsAccessFebruary 18, 2010*

The HeadThe final decision about access to information is made by the head of the public body

A head may delegate to one or more officers of the public bodyMay be the Director of Education or a designated senior administrative official

February 18, 2010*

Processing an Access RequestDuty to AssistImplied duty to take reasonable steps to assist an applicantRespond openly, accurately and completelyConduct an adequate searchShould contact appropriate persons who are likely to have knowledgeShould record details of the search for responsive recordsConsult with Applicant for clarificationShould only ask the Applicant why they want the information if it would assist in locating records / determining the scope of their requestFebruary 18, 2010*

File Management is 80% of the Battle

February 18, 2010*

Preservation of documentsThe Education Act, 1995

Preservation of documents369(1) A board of education shall preserve all public documents of a school division or school community council until their disposal is:(a) authorized by a resolution of the board of education; and(b) approved by the minister.

(2) The conseil scolaire shall preserve all public documents of the conseil scolaire and the conseils dcoles that pertain to activities pursuant to this Act until their disposal is:(a) authorized by a resolution of the conseil scolaire; and(b) approved by the minister.

(3) With the consent of The Saskatchewan Archives Board, a board of education or a conseil scolaire may deposit any of its non-current or other documents with The Saskatchewan Archives Board for preservation in the archives.

February 18, 2010*

Processing an Access RequestDetermine if exemptions applyConsider feesProvide interim notice with fee estimateSever records, if necessaryRespond within the time limit (30 calendar days)Section 7 response to the ApplicantFebruary 18, 2010*

Exemptions to AccessRecords MUST be released unless a statutory exemption applies

Two types:Mandatory Exemptions

Discretionary Exemptions

The burden of establishing that access to a record may or must be refused is on the head of the public body February 18, 2010*

Mandatory ExemptionsMust not be releasedIncludes:Third Party informationRecords from other governmentsPersonal information of othersno disclosure without consent unlessno disclosure of deceased until or unlessFebruary 18, 2010*

Discretionary Exemptions May be released discretion must be consideredIncludes:Law enforcement mattersLocal authority draft bylaws or resolutions, agendas and deliberations of in camera meetingsAdvice from officialsEconomic interestsTesting proceduresWhere there is a health or safety threatSolicitor client privilegeInfo. obtained from another local authority or a similar body in confidence (implicitly or explicitly) February 18, 2010*

February 18, 2010*

Review by the OIPCInitiated by receipt of Applicants Request for ReviewInitial discussion with OIPC investigatorSubmissions from both parties on the issues under dispute:applicability of any claimed exemptions, question of control of records, fees etc.Analysis of issues by OIPCMediation / Informal ResolutionReport Issued if no Resolution30 days for public body to respond to recommendationsRight of appeal to the Queens benchFebruary 18, 2010*

Case StudyFogal v. Regina School Division No. 4Appeal from decision of Information and Privacy Commissioner to Court of Queens Bench

Background:Teacher with 20+ years experience was told, you will be placed on extensive performance evaluation process commencing February 5, 2001 due to parental concerns. On behalf of Fogal the STF applied for access to records (parents comments) from the Board of Education The Board denied the request as it contained, personal information that is of an evaluative or opinion material compiled solely for the purpose of determining the individuals suitability, eligibility or qualifications for employment section 30 (2) of LA FOIP

Was the board right to deny the request?February 18, 2010*

Case StudyFogal v. Regina School Division No. 4At issue Was it her personal information?Yes - the views or opinions of another person about a teachersection 23(1)(h) of LA FOIP

Is the Board of Education entitled to rely on the exemption contained in section 30(2) of LA FOIP?Yes. This section does not just apply to information compiled at the time of hiring. The court ruled that the board was entitled to withhold the documents.February 18, 2010*

Questions ??February 18, 2010*

Contact InformationOffice of the Saskatchewan Information and Privacy Commissioner503-1801 Hamilton StreetREGINA, SK S4P 4B4Phone: (306) 787-8350Fax: (306) 798-1603Email: amarkel@oipc.sk.caWebsite: www.oipc.sk.caFebruary 18, 2010*

***Section 49

Access requests can come from anyone. For many reasons, an individual may not be able to exercise his/her own rights. These rights or powers may be conferred on an individual by this Act to one of the following individuals: (refer to bulleted items on slide).

If you receive an access request by a surrogate, do you have a process in place to determine if these sources are credible and if it really is appropriate to release the information?*********So, lets take some of the information from the last few slides and see if we can apply what youve learned.

Marcia Fogal had worked for 20 + years as a teacher for the Board of Education for the Regina Public School Division. In February 2001, she was advised by the board that because of parental concerns, she would be subjected to an extensive performance evaluation. She was not given any specifics as to the nature of the parental concerns. On February 16, 2001, the STF applied under the LA FOIP Act for all correspondence in the possession of the board and the school principal containing views or opinions about Fogal. The board refused on the grounds that the documents requested were protected under the Act because they contained personal information related to an employment evaluation.

Was the board right to deny the request? Did they have legal grounds? *This is the finding of the information and Privacy Commissioner and the Court : Under 30.2 an employer may refuse to disclose personal information that is evaluative or opinion material compiled solely for the purpose of determining the individuals suitability, eligibility, or qualifications for employment, where the information is provided implicitly or explicitly in confidence.*