Chapter 1: Principles, History & Purposes of FIPPA

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Overview

This Chapter deals with

• the principles of access to information and information privacy legislation;
• the history of Manitoba's Freedom of Information and Protection of Privacy Act (FIPPA), including the amendments to FIPPA; and
• the purposes in section 2 of FIPPA.

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Principles of Access and Privacy Legislation

Manitoba's Freedom of Information and Protection of Privacy Act (FIPPA) is both:

• an access to information statute (Part 2 - Access to Information); and
• an information privacy statute (Part 3 - Protection of Privacy).

Access to Information Legislation

Part 2 of FIPPA - Access to Information - is access to information legislation.

The Supreme Court of Canada has described the purpose of access to information legislation as follows:

• The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.2

The Supreme Court of Canada has also recognized that the right of access to information held by public institutions must be subject to limits:

• Access to information in the hands of public institutions can increase transparency in government, and enhance an open and democratic society. Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance.3

The balance between openness and confidentiality is achieved by excepting certain categories of records4 from access. The practice of severing information, which involves removing information that falls within an exception to disclosure from a copy of the record to be released, provides a means of disclosing as much information as possible while maintaining necessary confidentiality.

To ensure that public institutions respect the right of access to information, access legislation provides for the independent review of decisions about access.

Information Privacy Legislation

Part 3 of FIPPA - Protection of Privacy - is information privacy legislation.

The protection of privacy is a fundamental value in modern, democratic states. 'Information privacy' deals with a particular aspect of privacy - privacy in relation to information about an individual. It recognizes that personal information about an individual is, in a fundamental way, the individual's own, and that he or she should have some right to control this information - to determine when, how and to what extent it is communicated to others.

As the Supreme Court of Canada has stated:

• Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force5 put it: "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit".6

'Information privacy' legislation:

1. sets out rules governing the collection, use, disclosure, retention and destruction of personal information;
   In setting out these rules, the legislation must balance the right of individuals to privacy of and control over their personal information and the legitimate need of government institutions and other organizations to collect, use and disclose personal information (for example, to provide services or health care to the individual, to protect the public, enforce laws, etc.).
2. provides individuals with a right of access to, and the right to request correction of, their personal information; and
3. provides for independent review of the decisions of government institutions and organizations about personal information.

The privacy principles in information privacy legislation flow from the eight international 'fair information practices' issued in the 1980's by the International Organization for Economic Cooperation and Development (known as the OECD Privacy Guidelines).7 These eight privacy principles are: collection limitation; data quality; purpose specification; use limitation; security safeguards; openness; individual participation; and accountability.

In November 2006, a 'Global Privacy Standard' - a harmonization of privacy principles into a single set of fair information practices - was adopted at the International Data Protection Commissioners Conference. Canadian information privacy legislation - including Manitoba's FIPPA and Manitoba's Personal Health Information Act8 - reflects, and is organized around, these ten privacy principles:

1. Consent;
2. Accountability;
3. Identifying Purposes;
4. Collection Limitation;
5. Use, Retention and Disclosure Limitation;
6. Accuracy;
7. Security;
8. Openness;
9. Access to and Correcting One's Own Personal Information; and
10. Compliance.9

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History of FIPPA

Manitoba's Freedom of Information Act

Manitoba has had access to government information legislation since The Freedom of Information Act was proclaimed in 1988.10 That Act provided for access by members of the public to records held by the Manitoba Government and government agencies, subject to certain exemptions. The Manitoba Ombudsman and the Court of Queen's Bench served as the review and appeal mechanisms for access to information decisions.

The Freedom of Information Act provided limited protection for personal information by treating third party personal information as an exemption to disclosure. But, it lacked a full scheme protecting all personal information collected, used and disclosed by the government. That is, The Freedom of Information Act was an access to information statute only; it was not an information privacy statute. Also, the access rights in that Act were limited to records held by the Manitoba government departments and Crown agencies; it did not apply to other public bodies in the province, such as municipalities, public schools, regional health authorities, etc.

Development and Enactment of FIPPA

The Freedom of Information and Protection of Privacy Act (FIPPA) was drafted after a public consultation process and extensive research on similar legislation in other Canadian jurisdictions and elsewhere. A Discussion Paper titled Access to Information and Privacy Protection for Manitoba was distributed in May 1996, to which the public was invited to respond. Numerous individuals, organizations and government departments made oral and written submissions about new access and privacy legislation.

FIPPA was introduced in the Manitoba Legislature on June 4, 1997 by the Minister of Culture, Heritage and Citizenship and was passed on June 27, 1997. It was proclaimed in effect with respect to Manitoba government departments and government agencies on May 4, 1998, and for the City of Winnipeg on August 31, 1998. FIPPA was extended to other local public bodies (such as school divisions, other municipalities, regional health authorities, etc.) on April 3, 2000.

Statutory Review of and Amendments to FIPPA

Statutory Review of FIPPA

Amendments to FIPPA

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Purposes of FIPPA

The purposes of FIPPA are set out in section 2 of FIPPA.

Section 2 of FIPPA sets out five purposes:

1. Right of Access to Records [Clause 2(a)]

   Part 2 of FIPPA - Access to Information - sets out the general right of access by any person to records in the custody or under the control of public bodies. The limited and specific exclusions and exceptions to disclosure set out in FIPPA, and a small number of other statutes that state they prevail over FIPPA, provide the only basis for refusing access to records.

   The exceptions to disclosure in FIPPA are "limited and focused" and should be interpreted so as to give as much access as possible to records that are requested.

   Part 2 of FIPPA is discussed in Chapters 4 and 5 of this Manual. Statutes that prevail over FIPPA are discussed in Chapter 2, under Relationship of FIPPA to Other Legislation.

2. Right of Access to Records Containing One's Own Personal Information [Clause 2(b)]

   Under Part 2 of FIPPA - Access to Information - an individual also has a right to obtain access to records in the custody or under the control of public bodies that contain personal information about himself or herself. This important `information privacy' right is subject to the limited and specific exclusions and exceptions in FIPPA, and to a small number of provisions of other statutes that prevail over FIPPA.

   The exceptions and exclusions to access in FIPPA are "limited and focused" and should be interpreted so as to give the individual as much access to his or her personal information as possible.

   Part 2 of FIPPA is discussed in Chapters 4 and 5 of this Manual. Statutes that prevail over FIPPA are discussed in Chapter 2, under Relationship of FIPPA to Other Legislation.

3. Right to Request Correction of One's Own Personal Information [Clause 2(c)]

   Section 39 of FIPPA contains another important `information privacy' right - the right of individuals to request corrections to records containing information about themselves that are held by public bodies.

   Section 39 of FIPPA is discussed in Chapter 6 of this Manual, under Requests to Correct Personal Information.

4. Protection of Privacy [Clause 2(d)]

   Part 3 of FIPPA - Protection of Privacy - controls the manner in which public bodies collect personal information, and protects individuals against unauthorized use or disclosure of their personal information by setting out requirements respecting use, protection, accuracy, retention and disclosure of personal information by public bodies.

   Part 3 of FIPPA is discussed in Chapter 6 of this Manual.

5. Independent Review of Access and Privacy Decisions [Clause 2(e)]

   Part 4 and Part 5 of FIPPA deal with the independent review of the decisions of public bodies about access to information and privacy, and the resolution of access and privacy complaints.

   The roles of the Manitoba Ombudsman, the Information and Privacy Adjudicator and the courts in the independent review of decisions and in complaint resolution under FIPPA are discussed in Chapters 7 and 8 of this Manual.