BC Freedom of Information and Protection of Privacy Act Records, Contracts & the BC Freedom of Information and Protection of Privacy Act

Who here is subject to the Act? The the Freedom of Information and Protection of Privacy Act (FIPPA) came into force in October 993 It is a central tenet of democracy that public institutions are accountable to the citizens they serve, and accountability cannot survive in the absence of transparency. Freedom of information laws provide the legislative direction to ensure a healthy transparency in government operations. As s. 2(1) of FIPPA says, one of the purposes of the Act is to “make public bodies more accountable to the public … by giving the public a right of access to records”.

What is the purpose of FIPPA? Accountability to the Public Legislated right to access all government records - specifying limited exceptions Protection of Privacy Provides a right of access to individuals own personal information Regulates how public bodies collect, use and disclose personal information Right to request correction of personal information THE PURPOSE OF THE ACT: To make public bodies more accountable to the public and to protect personal privacy by: Giving the public a legal right to request access to records. Giving people a right to request access to their own personal information and the right to request that information be corrected. Limiting the circumstances in which public bodies may withhold or refuse to disclose information. Preventing the unauthorized collection, use or disclosure of personal information by public bodies. Provide an independent review of decisions made by public bodies We are going to focus today on the right to access government records

BC Transit is a Schedule 2 Public Body and is covered by FIPPA. BC Transit must respond to all requests openly, accurately completely, and in a timely manner. If you work with us you are impacted on a third party basis, and records you have may be subject to requests

Types of Records that are responsive to a request . Types of Records that are responsive to a request Any information recorded or stored by any means whether in hard copy or in electronic format Briefing Notes Contractor Records Email Blackberry Records Black Books Transitory Records Transitory Records have a temporary usefulness and may be destroyed. If Transitory records are in existence at the time a request is made, they must be provided. Note re: Drafts: if you can get rid of drafts as they are superseded as you go along – so much the better.

What Records are Covered Under FIPPA? All records in the custody or under the control of a public body. “Custody ” means having physical possession of a record.  “Control” means the power or authority to manage the record throughout its life cycle, including restricting, regulating and administering its use or disclosure. Custody: Physical possession normally includes responsibility for access, managing, maintaining, preserving, disposing, and providing security for the record. Indicators of control: Created by employee of public body Created by consultant for the public body Info is specified in a contract Info is subject to inspection, review or copying by the public body under the contract

Contractor or Service Provider Records In general, records created by service providers of BC Transit that relate directly to the provision of services under the contract are under the control of BC Transit, which means they are subject to requests under FIPPA. The price of doing business with government is a degree of scrutiny not found in purely private business deals. The Act balances the public interest in scrutinizing government spending on contracts with the public interest in avoiding harm to private business interests through disclosure of businesses’ informational assets. In this era of public-private partnerships and private sector delivery the public is demanding more accountability than it was a decade or more ago. Noticeable increase in FOI enquiries on this basis at BCT in recently Long-term contractual commitments on taxpayers’ behalf can have significant financial consequences for taxpayers and FIPPA allows meaningful, though not unrestricted, scrutiny of such arrangements.

An Access Request – What happens? Not all records are automatically released. A line by line review Disclosure is the rule, not the exception. Three mandatory exceptions. Information must not be released if disclosure of the records would: Reveal cabinet confidences Cause significant harm to the business interests of a third party – Sec. 21 Result in an unreasonable invasion of someone’s privacy When a record is requested under the Act, it doesn’t mean that we have to automatically release the entire record It does however mean that we must undertake a line by line review and analysis of the record to determine which portions we must/should release under the Act and which portions must /should be withheld. BC Transit will at all times endeavour to support your proprietary interests as permitted under the Act. We withhold information under the Act by applying exceptions to portions or all of the document(s) as required # mandatory exceptions Section 21 is the section that protects private sector assets.

Third party business interests Section 21 exceptions – A three part test and all three parts must be met: Trade secrets or scientific, technical, commercial, financial or labour relations information Information was supplied, implicitly or explicitly in confidence Disclosure could significantly harm the business interests of the third party Exceptions: Harm the third party’s competitive position Result in similar information no longer being supplied Result in undue financial loss or gain to any person or organization Reveal information supplied to an arbitrator, mediator, labour relations officer or other person or body appointed to resolve a labour relations dispute Supplied in confidence vs negotiated Some factors to consider: Has the information that was originally provided by the third party been altered during negotiations? Information contained in an agreement is typically the product of a negotiation process between the institution and a third party, and may not qualify as originally having been ‘supplied’ the existence or lack of an explicit statement of confidentiality, request for confidentiality, confidentiality agreement, or other objective evidence which indicates the parties’ understanding that the information would be kept confidential; the type of information, including whether it would normally be kept confidential by the third party; and whether the information was supplied voluntarily by the third party, informally requested by the public body or required by the public body, where failure to supply the information would have negative consequences to the third party Will Release Cause Harm? Some factors to consider: Harm cannot be speculative, fanciful, imaginative or contrived Must have a evidentiary basis Mere assertions of harm do not meet the test Real and substantial possibility of harm must be established by applying reason to evidence. Overall bar of section 21 is high

Access to Records Relating to a Contract BC Transit may review the records and conclude that disclosure of the information might harm business interests under section 21. If BC Transit intends to disclose that information, the third party will be given the following notice: That a record has been requested by an applicant which may contain information the disclosure of which may affect the interests of or invade the personal privacy of the third party, A description of the contents of the record (or more commonly, a copy of the record) Inform 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. 3 Scenarios when BCT gets a request: we review the records and conclude that disclosure of the information does not harm 3rd party business interests and therefore does not fall under Section 21. The information is released. BC Transit is not required to give notice to the third party but we may choose to do so. BC Transit reviews the records and concludes that disclosure of the information is harmful to business interests under section 21 and must withhold the information.  The information is withheld. BC Transit is not required to give notice to the third party but may choose to do so. If, after conducing a line by line review, it is determined that information MAY attract the application of s. 21, the third party must be notified in writing and given 20 days to provide their rationale as to why the information should not be disclosed.

Third Party Request for Review May appeal a BC Transit decision to release information with the Information and Privacy Commissioner The appeal (“request for review”) must be in writing and delivered to the Commissioner. BC Transit must give at least 20 days notice to allow for an appeal to the Commissioner before records are released Once appeal is filed, no records subject to the appeal will be released pending the outcome of the appeal The third party, not BC Transit must prove why the records meet all three parts of the test and should be withheld. Appeal will be mediated or disposed of by way of a binding public order. An Order is legally binding and all rulings must be acted upon with 30 days of the Order being issued. The Commissioner monitors and enforces the Act and is an independent officer of the Legislature. The Information and Privacy Commissioner is Elizabeth Denham. Canada Line Order Applicant requested access to the concession agreement for the Canada Line rapid transit project. P3 between Translink, SNC Lavalinia nd IN Transit BC. Canada Line disclosed the concession agreement in severed form, withholding information under ss. 15, 16, 17 and 21. Canada Line and InTransit BC. Did not establish a reasonable expectation of harm flowing from disclosure. Order: Full disclosure Those portions of the Agreement that were provided directly by the Concessionaire and were not the result of the negotiations for the agreement were withheld. Portions ($ amounts, terms etc.) that were in the agreement that were the result of negotiations made at the negotiations table were eventually ordered out by the Office of the Information and Privacy Commissioner as a result of a formal review

CCTV Roll Out BC TRANSIT TESTS SECURITY CAMERAS ON SELECT VICTORIA BUSES VICTORIA – BC Transit will begin testing video surveillance using CCTV cameras on select BC Transit buses in the Victoria Regional Transit System this week for a period of one year. The presence of video surveillance on buses is commonplace in a number of transit systems worldwide and has proven to improve the safety and security of drivers and passengers on buses. Video surveillance has also led to successful prosecutions. Footage collected through video surveillance will be restricted to authorized BC Transit staff. The footage will only be used for the safety, prevention and detection of incidents on the bus.

Best Advice Understand the context in which you are doing business--private arrangements with government are not the same as purely private arrangements. Absolute confidentiality does not exist. The Act provides protection for sensitive commercial information. Familiarize yourself with the FOI Act and other relevant disclosure policies. Determine ahead of time what information is not harmful or confidential and what might be routinely or proactively disclosed.

Websites Freedom of Information and Protection of Privacy Act: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/96165_00 Office of the Information and Privacy Commissioner: http://www.oipc.bc.ca/

Questions? Questions, comments or concerns please contact: Jackie Hendry, Manager, Corporate Services Jackie_Hendry@BCTransit.com 250-995-5679 Stephen Brydon, Manager, Climate Action Stephen_Brydon@BCTransit.com 250-995-5648