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HomeMy WebLinkAboutADM 050 Freedom of Information and Protection of Privacy Policy644 DICKERING Policy Procedure Title: Freedom of Information and Protection of Privacy Policy Policy Number ADM 050 Reference Municipal Freedom of Information and Protection of Privacy Act, 1990, as amended Resolution # 211/16 Approval: Chief Adrt�i ative Date Originated (m/d/y) November 26, 2007 er Date Revised (m/d/y) June 2009 October 2016 Point of Contact: City Clerk Pages 11 Policy Objective The City of Pickering is committed to providing a right of access to information under the control of the City in accordance with the principles of the Municipal Freedom of Information and Protection of Privacy Act, 1990 (the Act), as amended. The Act establishes rules for municipalities to follow to ensure access to information and the protection of individual privacy. The objectives of this policy are to: 1. Ensure fair and equitable access to corporate records and that necessary exemptions from the right of access are limited and specific. 2. Identify staff roles and assign responsibility regarding the use and disclosure of corporate information. 3. Commit to protecting the privacy of individuals with respect to personal information held by the City and to provide individuals with the right of access to their information. 4. Establish guidelines for processing requests for information within the timeline restrictions imposed by the Act. 5. Communicate offenses and liabilities as stated in the Act. Index 01 Definitions 02 Responsibilities 03 General 04 Access Process 05 Forms 06 Offenses and Liability Appendix 1 Appendix 2 Application for Access/Correction to Records Form Fee Schedule 01 Definitions 01.01 Control — the power or authority to make a decision about the use or disclosure of a record. 01.02 Custody — the keeping, care, watch, preservation, or security of a record for a legitimate business purpose. While physical possession of a record may not always constitute custody, it is the best evidence of custody. 01.03 FOI Coordinator — for the purposes of this policy and related procedures, the City Clerk (or designate), is designated as the FOI Coordinator. 01.04 Head — for the purposes of the Act, the Head is Council, which has delegated its powers and duties to the City Clerk by By-law. However, the Head still remains accountable for actions taken and decisions made under the Act. 01.05 Information and Privacy Commissioner (IPC) — the Information and Privacy Commissioner of Ontario is appointed by the Lieutenant Governor in Council. The Commissioner is an officer of the Legislature and is independent of the government. The Commissioner hears appeals of decisions made by Heads of institutions, issues binding orders, conducts privacy investigations, and has certain powers relating to the protection of personal privacy. 01.06 Personal Information — recorded information about an identifiable individual (not a corporation, partnership or sole proprietorship), including information relating to: a) Race, national or ethnic origin, color, religion, age, sex, sexual orientation or marital or family status of the individual; b) Education, medical, psychiatric, psychological, criminal or employment history, financial transactions; c) Any identifying number, symbol, address, telephone number, fingerprints or blood type; d) Personal opinions or views of the individual except if they relate to another individual, and views or opinions of another individual about the individual; e) Correspondence sent to the City which is implicitly or explicitly of a private or confidential nature and includes replies to the correspondence; and Policy Title: Freedom of Information and Protection of Privacy Policy Policy Number: ADM 050 Page 2 of 11 f) The individual's name if it appears with any other personal information. A Personal Information Bank (PIB) is a collection of personal information that is organized and capable of being retrieved using an individual's name or an identifying number or particular assigned to the individual. 01.07 Record — any information however recorded, whether in printed form, on film, by electronic means or otherwise, and includes: correspondence, memoranda, books, plans, maps, drawings, diagrams, pictorial or graphic works, photographs, films, microfilms, sound recordings, videotapes, machine-readable records, and social media documentation. 01.08 Request, Complete — a request for records which sufficiently describes the record sought to enable an experienced employee of the City, exercising reasonable effort, to identify the record. The application fee must accompany the request. 01.09 Request, Formal — a request for access to or copies of a record which is submitted in writing detailing the requested records, and is dated and signed by the requester. This type of request should be received only after the informal request has been denied. 01.10 Request, Informal — a verbal request for access to or copies of a record. May also be referred to as an over-the-counter or routine request. All requests should begin informally and requesters should only formally submit a request as a last resort. 01.11 Routine Disclosure — the routine or automatic release of certain types of administrative and operational records in response to information, rather than formal requests. 01.12 Third Party — any person, group of persons or organization whose interest might be affected by disclosure, other than the person, group of persons, or organization making a request for access. Where the third party is an individual, another person may in some cases, exercise his/her right. 02 Responsibilities 02.01 Head to: a) Maintain a thorough knowledge of this Policy and the principles of the Act. b) Ensure the FOI Coordinator and all FOI Representatives are appropriately abiding by the principles of the Act. c) Ensure that reasonable measures respecting the records in the custody or under the control of the institution are developed, documented, and put into place to preserve the records in accordance with any Policy Title: Freedom of Information and Protection of Privacy Policy Policy Number: ADM 050 Page 3 of 11 recordkeeping or records retention requirements, rules or policies that apply to the City. 02.02 Department/Division Head to: a) Understand this policy and the principles of the Act. b) Appoint a minimum of one Departmental FOI Representative to perform roles and responsibilities as defined by Section 02.05. Ensure proper notice is given to the public prior to the collection of any personal information. Ensure that all personal information is managed in accordance with this policy and applicable privacy legislation. 02.03 Employee to: a) Become familiar with this Policy. b) Have a sound knowledge of records within their scope of responsibility, which qualify for routine disclosure. c) Make recommendations to their FOI Department Representative regarding routine disclosure. d) Forward formal requests for information which are not common to their usual course of business to the FOI Coordinator. e) Protect personal information to which they have access to or custody of. f) Minimize the collection of personal information to only that which is necessary. 02.04 FOI Coordinator (Head) to: a) Maintain a thorough knowledge of the FOI Policy and information request procedures. b) Receive formal requests and coordinate those requests with Department FOI Representatives to comply with legislated time requirements. c) Communicate with requesters to clarify requests, issue notices, and respond to enquiries. d) Communicate with the Commissioner's Office to respond to enquiries and seek clarification and direction regarding appeals. Seek legal advice from the City Solicitor respecting disclosure decisions and appeals, as required. Policy Title: Freedom of Information and Protection of Privacy Policy Page 4 of 11 Policy Number: ADM 050 f) Make decisions relative to record disclosure. g) Determine or waive fees in accordance with Regulations. h) Conduct FOI Training and orientation. i) Develop and maintain procedures relative to the FOI Policy. 02.05 FOI Department Representative to: a) Maintain a thorough knowledge of the FOI Policy and information request procedures. b) Compile all records within their area of responsibility relative to the scope of the request, review these records, and submit preliminary disclosure recommendations to the FOI Coordinator. c) Coordinate requests with FOI Coordinator to comply with legislated time requirements. d) Participate in FOI training. e) Meet as required with FOI Coordinator and other FOI Department Representatives to discuss related issues. f) Provide guidance to staff within their area of responsibility to ensure use and disclosure of information is in compliance with guidelines and procedures outlined in this policy and related procedures. g) Review all FOI request files with Director prior to returning file to FOI Coordinator. 02.06 City Solicitor to: a) Maintain a thorough knowledge of the FOI Policy and information request procedures. b) Represent the City in defending the City's decision on an appeal. c) Provide legal advice to FOI Coordinator respecting disclosure decisions, as required. 03 General 03.01 Every person (including Corporations), has the right to request records under the custody and control of the City. The City is not obligated to create a record in response to a request," and the City has no right to question the purpose for the request. 03.02 The Act provides that information available to the public before the Act came into force must continue to be available, except personal information. Routine Policy Title: Freedom of Information and Protection of Privacy Policy Policy Number: ADM 050 Page 5 of 11 disclosure or usual "over the counter" responses to enquiries should continue outside the procedures set out. 03.03 Electronic records — instant messages and emails are forms of electronic correspondence and are considered records under the Act, regardless of the tool or service used to create them. 04 Access Process 04.01 Informal Request — where possible, requests should be handled through the informal request/routine disclosure process. Regardless of where or how a request is submitted, staff should direct the requester to the area of responsibility respecting the requested information. The employee is to open dialogue with the requester to discuss the nature of the request and the type of records at issue with a view to determine whether the matter should be handled informally or by means of a formal request under the Act. Typically, if the request is simply for information or for an answer to a question, no specific record is desired. Therefore, the request is considered to be "informal". If a specific record is requested, the employee shall verify that the record is classed as a public record and qualifies for routine disclosure. Otherwise, the requester is directed to complete a "formal" Application for Access/Correction of Records (see Appendix 1). 04.02 Formal Request — once it has been determined that a formal request is needed, an Application for Access/Correction of Records form is to be completed. The Application is available in the Clerk's Office and on the City's website www.pickering.ca. All formal requests for information are immediately forwarded to the FOI Coordinator along with the $5.00 mandatory application fee (see Appendix 2 for Fee Schedule). 04.03 The FOI Coordinator contacts the necessary FOI Department Representatives to arrange for collection of records pursuant to the scope of the request. Along with the requested records, the.FOI Department Representative will provide the FOI Coordinator with a preliminary recommendation regarding the disclosure of records. 04.04 The FOI Coordinator is responsible for determining disclosure. Under the Act, there are two types of exemptions that must be considered when assessing whether information is to be disclosed: a) Mandatory Exemptions — requiring the institution to refuse disclosure of the record. Such records include: • information pertaining to intergovernmental relations; if the information was received in confidence; • third party information that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, if supplied in confidence, and where disclosure could prejudice the interests of the third party; Policy Title: Freedom of Information and Protection of Privacy Policy Policy Number: ADM 050 Page 6 of 11 • personal information about individuals other than the requester. b) Discretionary exemptions — requiring an institution to apply discretion and good judgment when determining whether or not to disclose the record. Such records include: • Draft by-laws, records of closed meetings where such are authorized by statute; • Advice or recommendations within the organization; • Law enforcement records; • Information which could prejudice the financial or other specified interests of the organization; • Solicitor -client privileged information; • Information which could endanger the health or safety of an individual; • Information already available to the public or soon to be published. Although the above -noted exemptions provide direction as to what must or may be considered when assessing whether or not to disclose, there are times when the above exemptions do not apply: • if a compelling public interest outweighs the purpose of the exemption; or • if there is a grave environmental, health or safety hazard, regardless of whether or not a formal request for information has been made. 04.05 The FOI Coordinator shall issue a Notice of Decision and any other required Notices to the requester within the prescribed 30 days. 04.06 Fee Estimates — in accordance with the Regulations under the Act, the FOI Coordinator and the FOI Department Representative shall estimate the processing, searching and copying fees, based on the scope and nature of the request. If fees are estimated to be greater than $25.00, then the requester must grant permission to proceed. 04.07 Response Time limitation — the Act dictates that the Notice of Decision must be issued to the requester within thirty (30) days of receipt of a completed request. If a request is deemed incomplete or too vague and must be clarified, then the thirty (30) days starts after clarification and the $5.00 application fee is received. 04.08 Time Extension — the Act provides that the Head may extend the thirty day time limit in the following circumstances: Policy Title: Freedom of Information and Protection of Privacy Policy Policy Number: ADM 050 Page 7 of 11 a) The request is for a large number of records or staff will have to search through a large number of records and to do so would unreasonably interfere with the operations of the City; or b) Consultations with people outside of the institution are necessary before responding and cannot reasonably be completed within the time limit. Extensions are not permitted in the following circumstances: a) Situations where staff who would normally deal with the request are away from the office; or b) Staff are assigned to tend to heavy workloads for regular work assignments. 04.09 Method of Access — in most cases, the requester will obtain access to a copy of the records. Generally, originals are accessed and reviewed by the requester in situations where there is a large volume of records, or at the request of the requester. 04.10 Third Party Involvement — there may be circumstances where it is impossible to sever personal or third party information from a record. In this situation, it is determined if the exemption is mandatory or discretionary. When the exemption is mandatory, access to the record is denied. When the exemption is discretionary and the City intends to release the record, the third party identified in the record must be notified of the City's intention to release the information. This notification will allow the third party the opportunity to make representations on the proposed disclosure. If the Third Party disapproves of the City's final decision, they have the right to Appeal. During the appeal process, the City's response period is put on hold. 04.11 Decisions — within the time limits specified in the Act, the requester must be notified in writing of the City's decision. The City's response, based on the mandatory and discretionary exemptions stated in the Act, will be: a) Access granted in whole; b) Access denied in whole or in part (with the section of the Act stated); c) No record exists; or d) Refused to confirm or deny. 04.12 Appeals — any requester who is dissatisfied with the City's decision to withhold documents or to release documents only in part, or any third party who is dissatisfied with the City's decision to release documents that he/she felt should not be released, may appeal to the Information and Privacy Commissioner. This Notice of Appeal must be filed with the Information and Privacy Commissioner's Office within thirty (30) days of the date of the City's decision. Policy Title: Freedom of Information and Protection of Privacy Policy Policy Number: ADM 050 Page 8 of 11 The FOI Coordinator will receive any Appeal Notices from the Commissioner's Office and prepare the record packages. The City Solicitor will represent the City in defending its decision regarding release of records. The Solicitor will prepare any written representations and participate in any verbal (either in person or over the telephone) representations. An Order issued by the Commissioner is final, subject to judicial review only in the event of a gross error of law. The Order itself will specify new time periods within which any further action must be taken by either or both parties involved. The FOI Coordinator will take the necessary actions as specified in the Order. 05 Forms 05.01 All forms created by or for the City and used for City activities are subject to the Act. 05.02 At the point of creation, forms shall be created in accordance with City policies and procedures, and shall be reviewed by the FOI Coordinator with a view to the Act. 05.03 Forms that include the collection of personal information shall include the following clause: "Personal information contained on this form is collected pursuant to the Municipal Freedom of Information and Protection of Privacy Act, and will be used for the purpose of . Questions about this collection should be directed to the City Clerk, One The Esplanade, Pickering, ON L1 V 6K7, 905.420.4611." 06 Offences and Liability 06.01 Section 48 of the Act outlines the offences under the Act which can lead to prosecution. These offenses include breach of the privacy protection provisions and obstruction of the FOI Commissioner in carrying out duties or exercising powers. Fines of up to $5,000.00 may be imposed. 06.02 Section 48(1)(c.1) of the Act states that no person shall alter, conceal or destroy a record, or cause any other person to do so, with the intention of denying a right under this Act to access the record or the information contained in the record. 06.03 Section 49 explains, however, that no civil action lies against the Head or another person acting under the Heads direction for damages resulting from the disclosure or non -disclosure if the person is acting in good faith. Similarly, no legal action can be brought for failure to give notice under the Act if reasonable care is taken to give the required notice. Please refer to all associated Procedures and Standard Operating Procedures, if applicable, for detailed processes regarding this Policy. Policy Title: Freedom of Information and Protection of Privacy Policy Policy Number: ADM 050 Page 9 of 11 Gty p( J PICKERING Appendix 1 Application for Access/Correction to Records Municipal Freedom of information and Protection of Privacy Act Returned Completed Application To: City of Pickering, Clerk's Office, One Tim Esplanade Pickering, ON LIV 61(7, Tel. 905.420.4611 This form is to be completed only if standard practice prohibits access to requested records_ Request For: ❑ Access to General Records ❑ Access to Own Personal Information 0 Correction of Own Personal Information If request is for access to, or correction of, own personal information records, last name appearing on records is ❑ same as below, or Details (a fee of $5.00 applies to each application) First Name Street Address City Home Phone # Fax # Last Name Province Bus_ Phone # Emal Address Unit # Postal Code Extension Detailed description of requested records, personal information records or personal information to be corrected. (If requesting access to your personal information, identify the personal information bank or record containing the personal information). Please attach a separate sheet if necessary. Note: If you are requesting a correction of personal information, indicate the desired correction and, if appropriate, attach any supporting documentation_ You will be notified if the correction is not made and you may require a statement of disagreement be attached to your personal information_ In accordance with Section 45(1) of the Municipal Freedom of Information and Protection of Privacy Act, additional fees may be charged_ Signature Date Method of Access ❑ Original ❑ Copy Office Use Only Application Fee 0 Cash 0 Cheque Date Comments Request No. Personal information contained on this form is collected pursuant to the Municipal Freedom of Information and Protection of Privacy Act, and will be used to process your request Questions about this collection should be directed to the City Clerk, One The Esplanade, Pickering, ON LIV 6K7, 905.420.4611. CSV 0301-01126 Revised 16107/25 Alternate formats available upon request at 905.683.7575_ Policy Title: Freedom of Information and Protection of Privacy Policy Policy Number: ADM 050 Page 10 of 11 Appendix 2 Fee Schedule Fee Charges for requests for general information Application Fee $5.00 To be paid when request is submitted Search Time $7.50 Per each 1/4 hour required to search and retrieve records Record Preparation $7.50 Per each 1/4 hour required to prepare records for release Photocopying 20¢ Per page Computer programming $15.00 Per each 1/4 hour if needed to develop program to retrieve information Fee charges for requests for personal information. Application Fee $5.00 To be paid when request is submitted Photocopying 20¢ Per page Computer programming $15.00 Per each '/4 hour if needed to develop program to retrieve information Estimates Fee estimates will be given if anticipated fees are $25.00 or more. If the estimate of fees to be paid is $100.00 or more, the requester may be required to pay a 50% deposit. Appeals General Records Personal Information $25.00 $10.00 Appeal fees are to be paid up front and our Notice of Decision must advise the requester of these appeal fees. Policy Title: Freedom of Information and Protection of Privacy Policy Policy Number: ADM 050 Page 11 of 11