British Columbia (Canada)
Name of law: Freedom of Information and Protection of Privacy Act
First adopted: 1996
First adopted: 1996
Introduction
Despite regressive amendments in 2021 that cost BC several points on the Rating, BC's law remains one of the stronger ones among the Canadian provinces, and is roughly equivalent to the strength of the federal law (keeping in mind that Canada's law is not particularly strong, falling in the middle range of countries on the RTI Rating). In comparison with international standards, several key issues remain, particularly around the imposition of an application fee, problems in the exceptions regime including exceptions which are not harm tested, and poor promotional measures.
Colaborators
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 3 | 6 |
| 2 | Scope | 20 | 30 |
| 3 | Requesting Procedures | 18 | 30 |
| 4 | Exceptions & Refusal | 18 | 30 |
| 5 | Appeals | 25 | 30 |
| 6 | Sanctions & Protections | 6 | 8 |
| 7 | Promotional Measures | 4 | 16 |
| ∑ = 94 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | Partially | 1 | N/A | Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 . However, the right to information is only recognized as a limited and derivative right. |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | 2(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 right 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. | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | NO | 0 | N/A | |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | YES | 2 | 4(1) Subject to subsections (2) and (3), an applicant who makes a request under section 5 has a right of access to a record in the custody or under the control of a public body, including a record containing personal information about the applicant. | |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | Partially | 3 | 3(5)Part 2 does not apply to the following: ... (c)a record of metadata that (i)is generated by an electronic system, and (ii)describes an individual's interaction with the electronic system; (d)an electronic record that has been lawfully deleted by an employee of a public body and can no longer be accessed by the employee. 4(1) Subject to subsections (2) and (3), an applicant who makes a request under section 5 has a right of access to a record in the custody or under the control of a public body, including a record containing personal information about the applicant. | Amendments in 2021 excluded metadata and deleted electronic records from the scope of the Act at 3(5). This loses a point. |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | YES | 2 | 4(1) Subject to subsections (2) and (3), an applicant who makes a request under section 5 has a right of access to a record in the custody or under the control of a public body, including a record containing personal information about the applicant. 6 (2)Moreover, the head of a public body must create for an applicant a record to which section 4 gives a right of access if (a)the record can be created from a machine readable record in the custody or under the control of the public body using its normal computer hardware and software and technical expertise, and (b)creating the record would not unreasonably interfere with the operations of the public body. | |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | Partially | 7 | Schedule 1… "public body" means (a)a ministry of the government of British Columbia, including, for certainty, the Office of the Premier, (b)an agency, board, commission, corporation, office or other body designated in, or added by regulation to, Schedule 2, or (c)a local public body but does not include (d)the office of a person who is a member or officer of the Legislative Assembly, or (e)the Court of Appeal, Supreme Court or Provincial Court. Schedule 2. 3(3)This Act does not apply to the following:... (g)a record that is created by or for, or is in the custody or under the control of, the auditor general under the Auditor General for Local Government Act and that relates to the exercise of functions under that Act;... (j)a record placed in the archives of a public body, or the digital archives or museum archives of government, by or for a person or agency other than a public body | Applies to the ministries to local public bodies, and to agencies designated by schedule 2. "Public body" definition includes the office of the premier, and Schedule 2 provides a fairly exhaustive list of agencies.3(3)(j)) implies that it applies to the archives. Point deducted for exception for Auditor General for Local Government at 3(3)(g). |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | Partially | 1 | 3(3)This Act does not apply to the following:… (f) a record that is created by or for, or is in the custody or under the control of, an officer of the Legislature and that relates to the exercise of functions under an Act… (4)This Act, other than sections 30, 30.3, 30.5 (2), 33 and 65.3 to 65.6, does not apply to (a)an officer of the Legislature, including all employees of the officer of the Legislature and, in the case of an employee that is a service provider, all employees and associates of the service provider. Schedule 1… "public body" means (a)a ministry of the government of British Columbia, including, for certainty, the Office of the Premier, (b)an agency, board, commission, corporation, office or other body designated in, or added by regulation to, Schedule 2, or (c)a local public body but does not include (d)the office of a person who is a member or officer of the Legislative Assembly, or (e)the Court of Appeal, Supreme Court or Provincial Court; | Limited by 3(3)(f), and does not apply to the offices of legislators. |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | Partially | 1 | 3 (1)Subject to subsections (3) to (5), this Act applies to all records in the custody or under the control of a public body, including court administration records. … (3)This Act does not apply to the following: (a)a court record; (b)a record of (i)a judge of the Court of Appeal, Supreme Court or Provincial Court, (ii)a master of the Supreme Court, or (iii)a justice of the peace; (c)a judicial administration record; (d)a record relating to support services provided to a judge of a court referred to in paragraph (b) (i); (e)a personal note, communication or draft decision of a person who is acting in a judicial or quasi-judicial capacity. Schedule 1… "public body" means (a)a ministry of the government of British Columbia, including, for certainty, the Office of the Premier, (b)an agency, board, commission, corporation, office or other body designated in, or added by regulation to, Schedule 2, or (c)a local public body but does not include (d)the office of a person who is a member or officer of the Legislative Assembly, or (e)the Court of Appeal, Supreme Court or Provincial Court; | Applies to court administration records, but applicability to the judiciary is very limited. |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | YES | 2 | 76.1(1) The minister responsible for this Act may, by regulation, amend Schedule 2 to do one or more of the following: (a) add to it any agency, board, commission, corporation, office or other body … (ii) of which a controlling interest in the share capital is owned by the government of British Columbia or any of its agencies. Schedule 2. | 76.1(1)(a)(ii) allows for this, and schedule 2 lists them comprehensively. |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | Schedule 2 | Schedule 2 seems to list these comprehensively. |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | NO | 0 | 76.1(1) The minister responsible for this Act may, by regulation, amend Schedule 2 to do one or more of the following: (a) add to it any agency, board, commission, corporation, office or other body …(iii)that performs functions under an enactment, | 76.1(1)(a)(iii) allows for agencies that perform roles governed by statute - but I couldn't find any private agencies in Schedule 2. |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | N/A | Not on the official form. |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | YES | 2 | N/A | The official form has slots for more information, but you don't have to use it to make requests. |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | YES | 2 | 76 (2)Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:...(b)permitting prescribed categories of applicants to make requests under this Act orally instead of in writing; | 76(2)(b) and the Regulations allow for some oral requests, and government websites allow for email requests: http://www.gov.bc.ca/citz/iao/foi/process/index.html |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | YES | 2 | 6(1) The head of a public body must make every reasonable effort to assist applicants and to respond without delay to each applicant openly, accurately and completely. | |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | YES | 2 | N/A | Non-discrimination is inherent in the Canadian system. |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | Partially | 1 | 11 (1)Within 20 days after a request for access to a record is received by a public body, the head of the public body may transfer the request and, if necessary, the record to another public body if (a)the head of the public body is satisfied that the request meets the requirements of section 5 (1), and (b)one or more of the following applies: (i)the record was produced by or for the other public body; (ii)the other public body was the first to obtain the record; (iii)the record is in the custody or under the control of the other public body. (2)If a request is transferred under subsection (1), the head of the public body who transferred the request must notify the applicant of the transfer. (3)If the head of the public body to which a request is transferred under subsection (1) is satisfied that the request meets the requirements of section 5 (1) (a) and (b), the head of the public body must respond to the applicant (a)in accordance with section 8, and (b)not later than 30 days after the request is received by that public body, unless this time limit is extended under section 10. | S 11 - but allows for transfers on overly broad grounds. |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | Partially | 1 | 5 (2)The applicant may ask for a copy of the record or ask to examine the record. | 5(2) - definitely not worth two points - but I will give them one for allowing requesters to specify whether they get a copy or inspect the original. |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | NO | 0 | 7 (1)Subject to this section and sections 23 and 24 (1), the head of a public body must respond not later than 30 days after receiving a request described in section 5 (1). | 30 days - but this does not include saturdays or holidays, pushing it beyond 20 working days. |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | Partially | 1 | (2)In addition to the authority under subsection (1), with the permission of the commissioner, the head of a public body may extend the time for responding to a request as follows: (a)if one or more of the circumstances described in subsection (1) (a) to (d) apply, for a period of longer than the 30 days permitted under that subsection; (b)if the commissioner otherwise considers that it is fair and reasonable to do so, as the commissioner considers appropriate. (3)If the time for responding to a request is extended under this section, the head of the public body must tell the applicant (a)the reason for the extension, (b)when a response can be expected, and (c)in the case of an extension under subsection (1) (a) to (c), that the applicant may complain about the extension under section 42 (2) (b) or 60 (1) (a). | Some requirements for notification and explanation, but extensions can go beyond 30 days with the commissioner's leave. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | NO | 0 | 75 (1)The head of a public body may require an applicant who makes a request under section 5 to pay to the public body the following: (a)a prescribed application fee; | Application fees may be imposed following a 2021 amendment |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | Partially | 1 | 75 (1)The head of a public body may require an applicant who makes a request under section 5 to pay to the public body the following: (a)a prescribed application fee; (b)prescribed fees for the following services: (i)locating and retrieving the record; (ii)producing the record; (iii)preparing the record for disclosure, except for time spent severing information from the record; (iv)shipping and handling the record; (v)providing a copy of the record. (2)Subsection (1) (b) (i) does not apply to the first 3 hours spent on a request. (3)Subsection (1) does not apply to a request for the applicant's own personal information. (4)If an applicant is required to pay fees for services under subsection (1) (b), the head of the public body (a)must give the applicant a written estimate of the total fees before providing the services, and (b)may require the applicant to pay a deposit in an amount set by the head of the public body...(7)The fees that prescribed categories of applicants are required to pay for services under subsection (1) (b) may differ from the fees other applicants are required to pay for the services but may not be greater than the actual costs of the services. | First 3 hours or searching are free, and 75(6) limits it to the actual costs incurred, but the fee schedule in the regs clearly puts it higher than that. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | YES | 2 | 75(5) If the head of a public body receives an applicant's written request to excuse payment of all or part of the fees required under subsection (1) (b), the head of the public body may excuse payment, if, in the head of the public body's opinion, (a)the applicant cannot afford the payment or for any other reason it is fair to excuse payment, or.. | |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | YES | 2 | N/A | |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | Partially | 2 | 3(7) If a provision of this Act is inconsistent or in conflict with a provision of another Act, this Act prevails unless the other Act expressly provides that it, or a provision of it, applies despite this Act. | Unless the other act specifically overrules the provincial act. |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 6 | 3(3)This Act does not apply to the following: … (h)a record of a question or answer to be used on an examination or test; (i)a record containing teaching or research materials of (i)a faculty member, as defined in the College and Institute Act and the University Act, of a post-secondary educational body, (ii)a teaching assistant or research assistant employed at a post-secondary educational body, or (iii)another person teaching or carrying out research at a post-secondary educational body. Cabinet and local public body confidences 12 (1)The head of a public body must refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council or any of its committees, including any advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Executive Council or any of its committees. (2)Subsection (1) does not apply to (a)information in a record that has been in existence for 15 or more years, (b)information in a record of a decision made by the Executive Council or any of its committees on an appeal under an Act, or (c)information in a record the purpose of which is to present background explanations or analysis to the Executive Council or any of its committees for its consideration in making a decision if (i)the decision has been made public, (ii)the decision has been implemented, or (iii)5 or more years have passed since the decision was made or considered. (3)The head of a local public body may refuse to disclose to an applicant information that would reveal (a)a draft of a resolution, bylaw or other legal instrument by which the local public body acts or a draft of a private Bill, or (b)the substance of deliberations of a meeting of its elected officials or of its governing body or a committee of its governing body, if an Act or a regulation under this Act authorizes the holding of that meeting in the absence of the public. (4)Subsection (3) does not apply if (a)the draft of the resolution, bylaw, other legal instrument or private Bill or the subject matter of the deliberations has been considered in a meeting open to the public, or (b)the information referred to in that subsection is in a record that has been in existence for 15 or more years. (5)The Lieutenant Governor in Council by regulation may designate a committee for the purposes of this section. (6)A committee may be designated under subsection (5) only if (a)the Lieutenant Governor in Council considers that (i)the deliberations of the committee relate to the deliberations of the Executive Council, and (ii)the committee exercises functions of the Executive Council, and (b)at least 1/3 of the members of the committee are members of the Executive Council. (7)In subsections (1) and (2), "committee" includes a committee designated under subsection (5). Policy advice or recommendations 13 (1)The head of a public body may refuse to disclose to an applicant information that would reveal advice or recommendations developed by or for a public body or a minister. (2)The head of a public body must not refuse to disclose under subsection (1) (a)any factual material, (b)a public opinion poll, (c)a statistical survey, (d)an appraisal, (e)an economic forecast, (f)an environmental impact statement or similar information, (g)a final report or final audit on the performance or efficiency of a public body or on any of its policies or its programs or activities, (h)a consumer test report or a report of a test carried out on a product to test equipment of the public body, (i)a feasibility or technical study, including a cost estimate, relating to a policy or project of the public body, (j)a report on the results of field research undertaken before a policy proposal is formulated, (k)a report of a task force, committee, council or similar body that has been established to consider any matter and make reports or recommendations to a public body, (l)a plan or proposal to establish a new program or activity or to change a program or activity, if the plan or proposal has been approved or rejected by the head of the public body, (m)information that the head of the public body has cited publicly as the basis for making a decision or formulating a policy, or (n)a decision, including reasons, that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of the applicant. (3)Subsection (1) does not apply to information in a record that has been in existence for 10 or more years. Legal advice 14 The head of a public body may refuse to disclose to an applicant information that is subject to solicitor client privilege. Disclosure harmful to law enforcement 15 (1)The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (a)harm a law enforcement matter, (b)prejudice the defence of Canada or of any foreign state allied to or associated with Canada or harm the detection, prevention or suppression of espionage, sabotage or terrorism, (c)harm the effectiveness of investigative techniques and procedures currently used, or likely to be used, in law enforcement, (d)reveal the identity of a confidential source of law enforcement information, (e)reveal criminal intelligence that has a reasonable connection with the detection, prevention or suppression of organized criminal activities or of serious and repetitive criminal activities, (f)endanger the life or physical safety of a law enforcement officer or any other person, (g)reveal any information relating to or used in the exercise of prosecutorial discretion, (h)deprive a person of the right to a fair trial or impartial adjudication, (i)reveal a record that has been confiscated from a person by a peace officer in accordance with an enactment, (j)facilitate the escape from custody of a person who is under lawful detention, (k)facilitate the commission of an offence under an enactment of British Columbia or Canada, or (l)harm the security of any property or system, including a building, a vehicle, a computer system or a communications system. (2)The head of a public body may refuse to disclose information to an applicant if the information (a)is in a law enforcement record and the disclosure would be an offence under an Act of Parliament, (b)is in a law enforcement record and the disclosure could reasonably be expected to expose to civil liability the author of the record or a person who has been quoted or paraphrased in the record, or (c)is about the history, supervision or release of a person who is in custody or under supervision and the disclosure could reasonably be expected to harm the proper custody or supervision of that person. (3)The head of a public body must not refuse to disclose under this section (a)a report prepared in the course of routine inspections by an agency that is authorized to enforce compliance with an Act, (b)a report, including statistical analysis, on the degree of success achieved in a law enforcement program or activity unless disclosure of the report could reasonably be expected to interfere with or harm any of the matters referred to in subsection (1) or (2), or (c)statistical information on decisions under the Crown Counsel Act to approve or not to approve prosecutions. (4)The head of a public body must not refuse, after a police investigation is completed, to disclose under this section the reasons for a decision not to prosecute (a)to a person who knew of and was significantly interested in the investigation, including a victim or a relative or friend of a victim, or (b)to any other member of the public, if the fact of the investigation was made public. 3(5)Part 2 does not apply to the following:...(b)a record that does not relate to the business of the public body. Disclosure harmful to intergovernmental relations or negotiations 16 (1)The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (a)harm the conduct by the government of British Columbia of relations between that government and any of the following or their agencies: (i)the government of Canada or a province of Canada; (ii)the council of a municipality or the board of a regional district; (iii)an Indigenous governing entity; (iv)the government of a foreign state; (v)an international organization of states, (b)reveal information received in confidence from a government, council or organization listed in paragraph (a) or their agencies, or (c)harm the conduct of negotiations relating to Indigenous self-government or treaties. (2)Moreover, the head of a public body must not disclose information referred to in subsection (1) without the consent of (a)the Attorney General, for law enforcement information, or (b)the Executive Council, for any other type of information. (3)Subsection (1) does not apply to information that is in a record that has been in existence for 15 or more years unless the information is (a)law enforcement information, or (b)information referred to in subsection (1) (a) (iii) or (c). Disclosure harmful to the financial or economic interests of a public body 17 (1)The head of a public body may refuse to disclose to an applicant information the disclosure of which could reasonably be expected to harm the financial or economic interests of a public body or the government of British Columbia or the ability of that government to manage the economy, including the following information: (a)trade secrets of a public body or the government of British Columbia; (b)financial, commercial, scientific or technical information that belongs to a public body or to the government of British Columbia and that has, or is reasonably likely to have, monetary value; (c)plans that relate to the management of personnel of or the administration of a public body and that have not yet been implemented or made public; (d)information the disclosure of which could reasonably be expected to result in the premature disclosure of a proposal or project or in undue financial loss or gain to a third party; (e)information about negotiations carried on by or for a public body or the government of British Columbia; (f)information the disclosure of which could reasonably be expected to harm the negotiating position of a public body or the government of British Columbia. (2)The head of a public body may refuse to disclose under subsection (1) research information if the disclosure could reasonably be expected to deprive the researcher of priority of publication. (3)The head of a public body must not refuse to disclose under subsection (1) the results of product or environmental testing carried out by or for that public body, unless the testing was done (a)for a fee as a service to a person, a group of persons or an organization other than the public body, or (b)for the purpose of developing methods of testing. Disclosure harmful to the conservation of heritage sites, etc. 18 The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to result in damage to, or interfere with the conservation of, (a)fossil sites, natural sites or sites that have an anthropological or heritage value, (b)an endangered, threatened or vulnerable species, subspecies or race of plants, vertebrates or invertebrates, or (c)any other rare or endangered living resources. Disclosure harmful to interests of an Indigenous people 18.1 (1)The head of a public body must refuse to disclose information if the disclosure could reasonably be expected to harm the rights of an Indigenous people to maintain, control, protect or develop any of the following with respect to the Indigenous people: (a)cultural heritage; (b)traditional knowledge; (c)traditional cultural expressions; (d)manifestations of sciences, technologies or cultures. (2)Subsection (1) does not apply if the Indigenous people has consented in writing to the disclosure. Disclosure harmful to individual or public safety 19 (1)The head of a public body may refuse to disclose to an applicant information, including personal information about the applicant, if the disclosure could reasonably be expected to (a)threaten anyone else's safety or mental or physical health, or (b)interfere with public safety. (2)The head of a public body may refuse to disclose to an applicant personal information about the applicant if the disclosure could reasonably be expected to result in immediate and grave harm to the applicant's safety or mental or physical health. Information that will be published or released within 60 days 20 (1)The head of a public body may refuse to disclose to an applicant information (a)[Repealed 2011-17-6.] (b)that, within 60 days after the applicant's request is received, is to be published or released to the public, or (c)that must be published or released to the public under an enactment. (2)The head of a public body must notify an applicant of the publication or release of information that the head has refused to disclose under subsection (1). (3)If the information referred to in subsection (1) (b) is not published or released to the public within 60 days after the applicant's request is received, the head of the public body must disclose the information to the applicant on, or within 30 days of, that date unless the head of the public body is authorized or required to refuse to disclose the information under other sections of this Division. Disclosure harmful to business interests of a third party 21 (1)The head of a public body must refuse to disclose to an applicant information (a)that would reveal (i)trade secrets of a third party, or (ii)commercial, financial, labour relations, scientific or technical information of or about a third party, (b)that is supplied, implicitly or explicitly, in confidence, and (c)the disclosure of which could reasonably be expected to (i)harm significantly the competitive position or interfere significantly with the negotiating position of the third party, (ii)result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, (iii)result in undue financial loss or gain to any person or organization, or (iv)reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute. (2)The head of a public body must refuse to disclose to an applicant information that was obtained on a tax return or gathered for the purpose of determining tax liability or collecting a tax. (3)Subsections (1) and (2) do not apply if (a)the third party consents to the disclosure, or (b)the information is in a record that is in the custody or under the control of the digital archives or museum archives of government or the archives of a public body and that has been in existence for 50 or more years. Disclosure harmful to personal privacy 22 (1)The head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party's personal privacy. (2)In determining under subsection (1) or (3) whether a disclosure of personal information constitutes an unreasonable invasion of a third party's personal privacy, the head of a public body must consider all the relevant circumstances, including whether (a)the disclosure is desirable for the purpose of subjecting the activities of the government of British Columbia or a public body to public scrutiny, (b)the disclosure is likely to promote public health and safety or to promote the protection of the environment, (c)the personal information is relevant to a fair determination of the applicant's rights, (d)the disclosure will assist in researching or validating the claims, disputes or grievances of Indigenous peoples, (e)the third party will be exposed unfairly to financial or other harm, (f)the personal information has been supplied in confidence, (g)the personal information is likely to be inaccurate or unreliable, (h)the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant, and (i)the information is about a deceased person and, if so, whether the length of time the person has been deceased indicates the disclosure is not an unreasonable invasion of the deceased person's personal privacy. (3)A disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy if (a)the personal information relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation, (b)the personal information was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation, (c)the personal information relates to eligibility for income assistance or social service benefits or to the determination of benefit levels, (d)the personal information relates to employment, occupational or educational history, (e)the personal information was obtained on a tax return or gathered for the purpose of collecting a tax, (f)the personal information describes the third party's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness, (g)the personal information consists of personal recommendations or evaluations, character references or personnel evaluations about the third party, (h)the disclosure would reveal (i)the identity of a third party who supplied, in confidence, a personal recommendation or evaluation, character reference or personnel evaluation, or (ii)the content of a personal recommendation or evaluation, character reference or personnel evaluation supplied, in confidence, by a third party, if the applicant could reasonably be expected to know the identity of the third party, (i)the personal information indicates the third party's racial or ethnic origin, sexual orientation or religious or political beliefs or associations, or (j)the personal information consists of the third party's name, address, or telephone number and is to be used for mailing lists or solicitations by telephone or other means. (4)A disclosure of personal information is not an unreasonable invasion of a third party's personal privacy if (a)the third party has, in writing, consented to or requested the disclosure, (b)there are compelling circumstances affecting anyone's health or safety and notice of disclosure is mailed to the last known address of the third party, (c)an enactment of British Columbia or Canada authorizes the disclosure, (d)the disclosure is for a research or statistical purpose and is in accordance with section 33 (3) (h), (e)the information is about the third party's position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister's staff, (f)the disclosure reveals financial and other details of a contract to supply goods or services to a public body, (g)public access to the information is provided under the Financial Information Act, (h)the information is about expenses incurred by the third party while travelling at the expense of a public body, (i)the disclosure, in respect of (i)a licence, a permit or any other similar discretionary benefit, or (ii)a degree, a diploma or a certificate, reveals any of the following with respect to the applicable item in subparagraph (i) or (ii): (iii)the name of the third party to whom the item applies; (iv)what the item grants or confers on the third party or authorizes the third party to do; (v)the status of the item; (vi)the date the item was conferred or granted; (vii)the period of time the item is valid; (viii)the date the item expires, or (j)the disclosure, in respect of a discretionary benefit of a financial nature granted to a third party by a public body, not including personal information referred to in subsection (3) (c), reveals any of the following with respect to the benefit: (i)the name of the third party to whom the benefit applies; (ii)what the benefit grants to the third party; (iii)the date the benefit was granted; (iv)the period of time the benefit is valid; (v)the date the benefit ceases. (5)On refusing, under this section, to disclose personal information supplied in confidence about an applicant, the head of the public body must give the applicant a summary of the information unless (a)the summary cannot be prepared without disclosing the identity of a third party who supplied the personal information, or (b)with respect to subsection (3) (h), either paragraph (a) of this subsection applies or the applicant could reasonably be expected to know the identity of the third party who supplied the personal recommendation or evaluation, character reference or personnel evaluation. (6)The head of the public body may allow the third party to prepare the summary of personal information under subsection (5). Disclosure of information relating to abortion service. 22.1 (1)In this section, "abortion services" means lawful medical services for the termination of a pregnancy. (2)The head of a public body must refuse to disclose to an applicant information that relates to the provision of abortion services. (3)Subsection (2) does not apply to the following: (a)information about abortion services that were received by the applicant; (b)statistical information, including financial information, relating to the total number of abortion services provided throughout (i)British Columbia, or (ii)a region that is designated under section 4 (1) (b) of the Health Authorities Act if more than one health care body provides abortion services in that region; (c)information about a public body's policies on the provision of abortion services. (4)Nothing in this section prevents any other provision of this Act from applying if a request is made under section 5 by an applicant for access to a record containing information about abortion services that were received by the applicant. | 3(3)(i) a record containing teaching materials or research information (overly broad and not harm tested); 16 - intergovernmental relations. 2021 Amendments excluded records that do not relate to the business of the public body. This is effectively an additional exception and costs 1 point. They also added an exception for harm to Indigenous peoples under Section 18.1. Although likely well intentioned, this exception does not identify a clear and narrow interest which needs to be protected against harm, in a way that would avoid the risk of future abuse of the provision. |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | NO | 0 | 3(3)(i) a record containing teaching materials or research information (overly broad and not harm tested); 16 - intergovernmental relations. 2021 Amendments excluded records that do not relate to the business of the public body. This is effectively an additional exception and costs 1 point. They also added an exception for harm to Indigenous peoples under Section 18.1. Although likely well intentioned, this exception does not identify a clear and narrow interest which needs to be protected against harm, in a way that would avoid the risk of future abuse of the provision. | 12 and 13 - internal deliberations, 21(2) - tax information, S 15 related to law enforcement is reasonably well-crafted, but the ability to refuse to confirm or deny the existence of information is problematic. 3(3)(k) is also not harm tested. |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | YES | 4 | 25(1) Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information (a)about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or (b)the disclosure of which is, for any other reason, clearly in the public interest. | |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | Partially | 1 | N/A | Sunset clauses apply to some, but not all exceptions |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | Partially | 1 | 23 (1)If the head of a public body intends to give access to a record that the head has reason to believe contains information that might be excepted from disclosure under section 18.1, 21 or 22, the head must give the third party a written notice under subsection (3). (2)If the head of a public body does not intend to give access to a record that contains information excepted from disclosure under section 18.1, 21 or 22, the head may give the third party a written notice under subsection (3). (3)The notice must (a)state that a request has been made by an applicant for access to a record containing information the disclosure of which may affect the interests or invade the personal privacy of the third party, (b)describe the contents of the record, and (c)state that, within 20 days after the notice is given, the third party may, in writing, consent to the disclosure or may make written representations to the public body explaining why the information should not be disclosed. (4)When notice is given under subsection (1), the head of the public body must also give the applicant a notice stating that (a)the record requested by the applicant contains information the disclosure of which may affect the interests or invade the personal privacy of a third party, (b)the third party is being given an opportunity to make representations concerning disclosure, and (c)a decision will be made within 30 days about whether or not to give the applicant access to the record. | 23 has a consultation mechanism, but it doesn’t follow the original timeframes. |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | 4(2) The right of access to a record does not extend to information that is excepted from disclosure under Division 2 of this Part, but if that information can reasonably be severed from a record, an applicant has a right of access to the remainder of the record. | |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | 8 (1)In a response under section 7, the head of the public body must tell the applicant (a)whether or not the applicant is entitled to access to the record or to part of the record, (b)if the applicant is entitled to access, where, when and how access will be given, and (c)if access to the record or to part of the record is refused, (i)the reasons for the refusal and the provision of this Act on which the refusal is based, (ii)the contact information of an officer or employee of the public body who can answer the applicant's questions about the refusal, and (iii)that the applicant may ask for a review under section 53 or 63. | |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | Partially | 1 | N/A | The law contains mediation proceedings - worth a point here. |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | YES | 2 | N/A | Information Commissioner. |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | YES | 2 | 37 (1)On the recommendation of the Legislative Assembly, the Lieutenant Governor must appoint as the Information and Privacy Commissioner a person who has been unanimously recommended by a special Committee of the Legislative Assembly for the appointment. (2)The commissioner is an officer of the Legislature. (3)Subject to section 38, the commissioner holds office for a term of 6 years. | 37 Appointed on recommendation of a special committee of the legislature, and can only be suspended by vote of 2/3 of the assembly. |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | YES | 2 | 37 (2)The commissioner is an officer of the Legislature. 40 (1)A commissioner appointed under section 37 (1) or 39 (1) is entitled (a)to be paid, out of the consolidated revenue fund, a salary equal to the salary paid to the chief judge of the Provincial Court, and (b)to be reimbursed for reasonable travelling and out of pocket expenses personally incurred in performing the duties of the office. (2)The Lieutenant Governor in Council may, on terms and conditions the Lieutenant Governor in Council specifies, order that the Public Service Pension Plan, continued under the Public Sector Pension Plans Act, applies to the commissioner. (3)If an order is made under subsection (2), the Public Service Pension Plan applies subject to subsection (4). (4)When calculating the amount of a pension under the Public Service Pension Plan, each year of service as commissioner must be counted as 1 1/2 years of pensionable service. 41 (1)The commissioner may appoint, in accordance with the Public Service Act, employees necessary to enable the commissioner to perform the duties of the office. (2)The commissioner may retain any consultants, mediators or other persons and may establish their remuneration and other terms and conditions of their retainers. (3)The Public Service Act does not apply in respect of a person retained under subsection (2). (4)The commissioner may make a special report to the Legislative Assembly if, in the commissioner's opinion, (a)the amounts and establishment provided for the office of commissioner in the estimates, or (b)the services provided by the BC Public Service Agency are inadequate for fulfilling the duties of the office. | 37(2) commissioner is an officer of the legislature. 40 and 41 grant financial independence. |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | NO | 0 | N/A | Not listed. |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | Partially | 1 | 44 (1)For the purposes of conducting an investigation or an audit under section 42 or an inquiry under section 56, the commissioner may make an order requiring a person to do either or both of the following: (a)attend, in person or by electronic means, before the commissioner to answer questions on oath or affirmation, or in any other manner; (b)produce for the commissioner a record in the custody or under the control of the person, including a record containing personal information. (2)The commissioner may apply to the Supreme Court for an order (a)directing a person to comply with an order made under subsection (1), or (b)directing any directors and officers of a person to cause the person to comply with an order made under subsection (1). (2.1)If a person discloses a record that is subject to solicitor client privilege to the commissioner at the request of the commissioner, or under subsection (1), the solicitor client privilege of the record is not affected by the disclosure. (3)Despite any other enactment or any privilege of the law of evidence, a public body must produce to the commissioner within 10 days any record or a copy of any record required under subsection (1). (3.1)The commissioner may require a person to attempt to resolve the person's request for review or complaint against a public body in the way directed by the commissioner before the commissioner begins or continues an investigation under section 42 or an inquiry under section 56. (3.2)Subsection (3.1) applies whether or not a mediator has been authorized under section 55. (4)If a public body is required to produce a record under subsection (1) and it is not practicable to make a copy of the record, the head of that public body may require the commissioner to examine the original at its site. (5)After completing a review or investigating a complaint, the commissioner must return any record or any copy of any record produced under subsection (3) by the public body. | Reviewing any record is allowed by 44, but no inspection powers are listed. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | YES | 2 | 58 (1)On completing an inquiry under section 56, the commissioner must dispose of the issues by making an order under this section. (2)If the inquiry is into a decision of the head of a public body to give or to refuse to give access to all or part of a record, the commissioner must, by order, do one of the following: (a)require the head to give the applicant access to all or part of the record, if the commissioner determines that the head is not authorized or required to refuse access; (b)either confirm the decision of the head or require the head to reconsider it, if the commissioner determines that the head is authorized to refuse access; (c)require the head to refuse access to all or part of the record, if the commissioner determines that the head is required to refuse access. (3)If the inquiry is into any other matter, the commissioner may, by order, do one or more of the following: (a)confirm that a duty imposed under this Act has been performed or require that a duty imposed under this Act be performed; (b)confirm or reduce the extension of a time limit under section 10 (1); (c)confirm, excuse or reduce a fee, or order a refund, in the appropriate circumstances, including if a time limit is not met; (d)confirm a decision not to correct personal information or specify how personal information is to be corrected; (e)require a public body or service provider to stop collecting, using or disclosing personal information in contravention of this Act, or confirm a decision of a public body or service provider to collect, use or disclose personal information; (f)require the head of a public body to destroy personal information collected in contravention of this Act. (4)The commissioner may specify any terms or conditions in an order made under this section. (5)The commissioner must give a copy of an order made under this section to all of the following: (a)the person who asked for the review; (b)the head of the public body concerned; (b.1)any service provider to whom the order is directed; (c)any person given notice under section 54; (d)the minister responsible for this Act. 59 (1)Subject to subsection (1.1), not later than 30 days after being given a copy of an order of the commissioner, the head of the public body concerned or the service provider to whom the order is directed, as applicable, must comply with the order unless an application for judicial review of the order is brought before that period ends. (1.1)If the commissioner gives the head of a public body a copy of an order made under section 54.1, the head of the public body must comply with the order within the period set out in the order, unless an application for judicial review of the order is brought before that period ends. (2)Subject to subsection (3), if an application for judicial review is brought before the end of the period referred to in subsection (1) or set out in an order given under section 54.1, the order of the commissioner is stayed for 120 days, beginning on the date the application is brought, unless a court makes an order shortening or extending the stay. (3)If a date for hearing the application for judicial review is set before the expiration of the stay of the commissioner's order referred to in subsection (2), the stay of the commissioner's order is extended until the judicial review is completed or the court makes an order shortening the stay. | |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | YES | 2 | 58 (1)On completing an inquiry under section 56, the commissioner must dispose of the issues by making an order under this section. (2)If the inquiry is into a decision of the head of a public body to give or to refuse to give access to all or part of a record, the commissioner must, by order, do one of the following: (a)require the head to give the applicant access to all or part of the record, if the commissioner determines that the head is not authorized or required to refuse access; (b)either confirm the decision of the head or require the head to reconsider it, if the commissioner determines that the head is authorized to refuse access; (c)require the head to refuse access to all or part of the record, if the commissioner determines that the head is required to refuse access. (3)If the inquiry is into any other matter, the commissioner may, by order, do one or more of the following: (a)confirm that a duty imposed under this Act has been performed or require that a duty imposed under this Act be performed; (b)confirm or reduce the extension of a time limit under section 10 (1); (c)confirm, excuse or reduce a fee, or order a refund, in the appropriate circumstances, including if a time limit is not met; (d)confirm a decision not to correct personal information or specify how personal information is to be corrected; (e)require a public body or service provider to stop collecting, using or disclosing personal information in contravention of this Act, or confirm a decision of a public body or service provider to collect, use or disclose personal information; (f)require the head of a public body to destroy personal information collected in contravention of this Act. (4)The commissioner may specify any terms or conditions in an order made under this section. (5)The commissioner must give a copy of an order made under this section to all of the following: (a)the person who asked for the review; (b)the head of the public body concerned; (b.1)any service provider to whom the order is directed; (c)any person given notice under section 54; (d)the minister responsible for this Act. | 58 has broad powers. |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | N/A | This is part of Canada's administrative law system. |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | YES | 2 | N/A | This is inherent in the system. |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | 42 (2)Without limiting subsection (1), the commissioner may investigate and attempt to resolve complaints that (a)a duty imposed under this Act has not been performed, (b)an extension of time for responding to a request is not in accordance with section 10 (1), (c)a fee required under this Act is inappropriate, (d)a correction of personal information requested under section 29 (1) has been refused without justification, and (e)personal information has been collected, used or disclosed in contravention of Part 3 by (i)a public body or an employee, officer or director of a public body, or (ii)an employee or associate of a service provider. | 42(2) grants very broad powers of investigation and appeal. |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | YES | 2 | 56 (1)If the matter is not referred to a mediator or is not settled under section 55, the commissioner may conduct an inquiry and decide all questions of fact and law arising in the course of the inquiry. (2)An inquiry under subsection (1) may be conducted in private. (3)The person who asked for the review, the head of the public body concerned and any person given a copy of the request for a review must be given an opportunity to make representations to the commissioner during the inquiry. (4)The commissioner may decide (a)whether representations are to be made orally or in writing, and (b)whether a person is entitled to be present during or to have access to or to comment on representations made to the commissioner by another person. (5)The person who asked for the review, the head of the public body concerned and any person given a copy of the request for a review may be represented at the inquiry by counsel or an agent. (6)Subject to subsection (8), an inquiry into a matter under review must be completed within 90 days after receiving the request for the review. (7)If the commissioner has required a person to attempt to resolve a matter under section 44 (3.1), the commissioner may defer beginning or may adjourn an investigation under section 42 or an inquiry under this section to enable the resolution of the matter in the way required under section 44 (3.1). (8)The period of an adjournment or deferral under subsection (7) must not be included for the purpose of calculating a deadline under subsection (6). | timeline of 90 days, and procedures are listed in the law and the regs. |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | Partially | 1 | 57 (1)At an inquiry into a decision to refuse an applicant access to all or part of a record, it is up to the head of the public body to prove that the applicant has no right of access to the record or part. (2)However, if the record or part that the applicant is refused access to contains personal information about a third party, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy. (3)At an inquiry into a decision to give an applicant access to all or part of a record containing information that relates to a third party, (a)in the case of personal information, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy, and (b)in any other case, it is up to the third party to prove that the applicant has no right of access to the record or part. | |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | YES | 2 | 58 (1)On completing an inquiry under section 56, the commissioner must dispose of the issues by making an order under this section. (2)If the inquiry is into a decision of the head of a public body to give or to refuse to give access to all or part of a record, the commissioner must, by order, do one of the following: (a)require the head to give the applicant access to all or part of the record, if the commissioner determines that the head is not authorized or required to refuse access; (b)either confirm the decision of the head or require the head to reconsider it, if the commissioner determines that the head is authorized to refuse access; (c)require the head to refuse access to all or part of the record, if the commissioner determines that the head is required to refuse access. (3)If the inquiry is into any other matter, the commissioner may, by order, do one or more of the following: (a)confirm that a duty imposed under this Act has been performed or require that a duty imposed under this Act be performed; (b)confirm or reduce the extension of a time limit under section 10 (1); (c)confirm, excuse or reduce a fee, or order a refund, in the appropriate circumstances, including if a time limit is not met; (d)confirm a decision not to correct personal information or specify how personal information is to be corrected; (e)require a public body or service provider to stop collecting, using or disclosing personal information in contravention of this Act, or confirm a decision of a public body or service provider to collect, use or disclose personal information; (f)require the head of a public body to destroy personal information collected in contravention of this Act. (4)The commissioner may specify any terms or conditions in an order made under this section. (5)The commissioner must give a copy of an order made under this section to all of the following: (a)the person who asked for the review; (b)the head of the public body concerned; (b.1)any service provider to whom the order is directed; (c)any person given notice under section 54; (d)the minister responsible for this Act. | Broad powers under s 58. |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | YES | 2 | 65.3 A person who wilfully conceals, destroys or alters any record to avoid complying with a request for access to the record commits an offence. 65.2 A person who wilfully does any of the following commits an offence: (a)makes a false statement to, or misleads or attempts to mislead, (i)the commissioner or anyone acting for or under the direction of the commissioner in the performance of duties or exercise of powers and functions under this Act, or (ii)an adjudicator or anyone acting for or under the direction of an adjudicator in the performance of duties or exercise of powers and functions under this Act; (b)obstructs (i)the commissioner or anyone acting for or under the direction of the commissioner in the performance of duties or exercise of powers and functions under this Act, or (ii)an adjudicator or anyone acting for or under the direction of the adjudicator in the performance of duties or exercise of powers and functions under this Act; (c)fails to comply with an order made by (i)the commissioner under section 54.1 or 58, or (ii)an adjudicator under section 65 (2). | |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | NO | 0 | N/A | This could be considered under the commissioner's general powers in 58 and 59 - but that's a stretch. |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | YES | 2 | 48 No proceedings lie against the commissioner, or against a person acting on behalf of or under the direction of the commissioner, for anything done, reported or said in good faith in the exercise or performance or the intended exercise or performance of a duty, power or function under this Part or Part 5. 73 No action lies and no proceeding may be brought against the government, a public body, the head of a public body, an elected official of a public body or any person acting on behalf of or under the direction of the head of a public body for damages resulting from (a)the disclosure, or failure to disclose, in good faith of all or part of a record under this Act or any consequences of that disclosure or failure to disclose, or (b)the failure to give any notice required under this Act if reasonable care is taken to give the required notice. | 48 for the oversight body, 73 for others. |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | YES | 2 | Public Interest Disclosure Act | BC passed a Public Interest Disclosure Act in 2018: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/18022 |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not listed in the law. |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | YES | 2 | 42(1) In addition to the commissioner's powers and duties under Part 5 with respect to reviews, the commissioner is generally responsible for monitoring how this Act is administered to ensure that its purposes are achieved, and may … (c) inform the public about this Act, | 42(1)(c) - informing the public is among the commissioner's mandates. |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not listed in the law. |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not listed in the law. |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not listed in the law. |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not listed in the law. |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not in the law. 76(2)(i) allowed for regulations mandating this, but I couldn't find any such regs that have been enacted. |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | YES | 2 | 51 (1)The commissioner must report annually to the Speaker of the Legislative Assembly on (a)the work of the commissioner's office, and (b)any complaints or reviews resulting from a decision, act or failure to act of the commissioner as head of a public body. (2)The Speaker must lay each annual report before the Legislative Assembly as soon as possible. 68 The minister responsible for this Act must prepare an annual report on its administration and lay the report before the Legislative Assembly as soon as possible. | There is a reporting requirement under 51, but only on the Commissioner's work, not on the state of access more generally. The minister's duty to report under s 68 is more broad however - and between the two they meet this requirement. |
