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Protection of Privacy: The Other Side of the FOI Coin

The Freedom of Information and Protection of Privacy Act came into force in 1992. The purposes of the Act are expressed in section 2 as follows:

(1) The purposes of this Act are to make public bodies more accountable to the public and to protect personal privacy by

(a) giving the public a right of access to records,

(b) giving individuals a right of access to, and a right to request correction of, personal information about themselves,

(c) specifying limited exceptions to the rights of access,

(d) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and

(e) providing for an independent review of decisions made under this Act.

(2) This Act does not replace other procedures for access to information or limit in any way access to information that is not personal information and is available to the public.

“Personal information” is broadly defined in Schedule 1 to the Act, and includes any recorded information about an identifiable individual other than business contact information.

The goals of the Act are clearly twofold: accountability through a public right of access to records, and protection of privacy from the unauthorized collection, use and disclosure of personal information. Since 1992, most of the focus for local governments has been on the freedom of information provisions in Part 2 of the Act, and local governments have become quite familiar with receiving and responding to access to information requests. However, less attention has been given to the other aspect of the Act – the regime of personal privacy protections contained in Part 3. While the access to information aspect of the legislation is often seen to have a greater impact on local governments, the privacy protection rules set out within the Act govern the everyday collection, use, disclosure and destruction of recorded information about individuals by local governments. Local governments should be very familiar with these privacy rules, and should review their practices to ensure they are complying with these requirements at all times.

Part 3 of the Act sets out a comprehensive scheme for the collection, protection, retention, and use of personal information by public bodies, and the purpose of this paper is to highlight the essential elements of this scheme and how they should be applied to local government practices. This paper will also reference a number of decisions of the Office of the Information & Privacy Commissioner (OIPC) as they relate to protection of personal privacy, as well as the recent BC Provincial Court decision R. v. Skakun, [2011] B.C.J. No. 1022, in which a municipal councillor was found guilty of breaching section 30.4 of the Act by releasing personal information to the CBC.

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