Chapter 7: Independent Review: The Role of the Ombudsman

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Overview

One of the purposes of FIPPA is to provide for the independent review of the decisions of public bodies respecting access to information and protection of personal information under FIPPA, and for the resolution of complaints under FIPPA. The right to an independent review and resolution of complaints is fundamental to ensuring access to information and protection of privacy.

Parts 4 and 5 of FIPPA assign this independent review and complaint resolution function to the Manitoba Ombudsman. The Ombudsman is responsible for:

• monitoring and promoting compliance with FIPPA by public bodies;
• promoting public awareness of access to information and protection of privacy under FIPPA; and
• investigating, dealing with and resolving complaints about access to information and protection of personal information under FIPPA.

The Ombudsman carries out similar responsibilities with respect to personal health information and the trustees of personal health information under The Personal Health Information Act.

In keeping with the usual powers of an ombudsman, the Manitoba Ombudsman cannot order a public body to comply with FIPPA. But, the broad powers of the Ombudsman to monitor and promote compliance with FIPPA, to audit, to mediate, investigate and make recommendations respecting complaints, and the Ombudsman's new duty to make his or her recommendations public, have a significant persuasive effect on the actions of public bodies.

Also, FIPPA has been amended to give the Ombudsman a new power with respect to complaints:

This Chapter discusses the general powers and duties of the Ombudsman under FIPPA, which are found in Part 4 of FIPPA (sections 49 to 58).

Specifically, this Chapter deals with:

• the Ombudsman as an independent officer of the Legislative Assembly;
• the Ombudsman's powers and duties under FIPPA;
• the Ombudsman's powers when carrying out an investigation; and
• the protection given to information provided to the Ombudsman.

Chapter 8 discusses the complaint process and the roles of the Ombudsman, the Information and Privacy Adjudicator and the court in the complaint process (Part 4.1 and Part 5 of FIPPA).

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The Ombudsman

The Manitoba Ombudsman is an officer of the Legislative Assembly who is appointed under The Ombudsman Act.5 As an officer of the Legislative Assembly, the Ombudsman is independent of the Government of Manitoba.

Appointment of the Ombudsman

The Ombudsman is appointed by the Lieutenant Governor in Council on the recommendation of the Standing Committee of the Legislative Assembly on Legislative Affairs for a term of six years.6 A person may be reappointed as Ombudsman for a second term of six years, but cannot be appointed for any further term.7

The Ombudsman can only be removed or suspended from office by the Lieutenant Governor in Council on a resolution of the Legislative Assembly carried by a vote of 2/3 of the members of the Assembly voting. If the Legislative Assembly is not sitting, the Lieutenant Governor in Council may suspend the Ombudsman for disability, neglect of duty, misconduct or bankruptcy, but the suspension does not continue beyond the end of the next session of the Legislative Assembly. The Legislative Assembly must determine if the suspension is to continue or if the Ombudsman should be removed from office.8 In other words, the Ombudsman cannot be removed from office by the Government of Manitoba acting on its own.

The Ombudsman's Staff, and Protection from Liability

The Ombudsman may delegate any of his or her duties or powers under FIPPA to any person on the Ombudsman's staff.9

The Civil Service Act of Manitoba applies to persons employed under the Ombudsman.10

The Ombudsman, and any person acting for or under the direction of the Ombudsman, is protected from proceedings for "anything done, reported or said in good faith in the exercise or performance or the intended exercise or performance of a duty or power under" FIPPA.11 This means that, as long as the Ombudsman and his or her staff act honestly and with the intention of complying with FIPPA, no legal proceedings can be brought against them.12

The Ombudsman is Not a Public Body under FIPPA

The office of the Ombudsman is not a public body as defined in subsection 1(1) of FIPPA, and the access to information and protection of personal information provisions of FIPPA do not apply to the Ombudsman, or his or her staff or office.

In addition, as the Ombudsman is an officer of the Legislative Assembly, FIPPA does not apply to a record made "by or for" the Ombudsman - wherever the record is located. For example:

• records made by the Ombudsman or the Ombudsman's staff under FIPPA, The Personal Health Information Act or The Ombudsman Act do not fall under FIPPA;
• records made for the Ombudsman by a government department under FIPPA or The Personal Health Information Act or The Ombudsman Act do not fall under FIPPA;
• even if a record made by or for the Ombudsman (or a copy of it) is in the custody of a department of the government or of some other public body that falls under FIPPA, the record (or copy) does not fall under FIPPA.14

As a result, the Ombudsman's records are not accessible under FIPPA, and the privacy protections in Part 3 of FIPPA - Protection of Privacy - do not apply to the Ombudsman's records. Instead, the Ombudsman's duty to protect confidentiality (and privacy) is found elsewhere in FIPPA and in The Ombudsman Act.

The Ombudsman's Duty of Confidentiality

The Ombudsman's general duty to keep information confidential is set out in The Ombudsman Act. The Ombudsman and his or her staff:

• must take an oath not to divulge any information received under The Ombudsman Act, except as provided in that Act; and
• must "maintain secrecy in respect of all matters that come to their knowledge in the exercise of their duties or functions under" The Ombudsman Act.15

The Ombudsman's specific duty to avoid disclosure of information obtained in the course of exercising powers and carrying out duties under FIPPA is set out in section 55 of FIPPA and is discussed later in this Chapter, under "Protection of Information Provided to the Ombudsman".

Annual and Special Reports, and the Duty to Make Recommendations Public

Under FIPPA, the Ombudsman must make an annual report to the Legislative Assembly on:

• the work of the Ombudsman's office in relation to FIPPA;
• the Ombudsman's recommendations and whether public bodies have complied with them;
• any complaints or investigations resulting from a decision, act or failure to act of public bodies; and
• any other matters about access to information and protection of privacy that the Ombudsman considers appropriate.

In addition to the Ombudsman's annual report, if it is in the public interest the Ombudsman may publish special reports relating to any matter within the scope of the Ombudsman's powers and duties under FIPPA. For example, the Ombudsman may publish a special report about a particular matter investigated by the Ombudsman.

Also, FIPPA has been amended to require the Ombudsman to make his or her recommendations about complaints available to the public - for example, by publishing them on the Ombudsman's website.18 A similar amendment has been made to The Personal Health Information Act.

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The Ombudsman's Powers and Duties Under FIPPA [Part 4]

Clause 2(e) of FIPPA states that the purposes of FIPPA include providing for an "independent review of the decisions of public bodies" respecting access to information and protection of personal information under FIPPA and for the resolution of complaints under FIPPA. These purposes are carried out through the office of the Ombudsman.

The Ombudsman has a continuing responsibility to ensure that public bodies are complying with the requirements of FIPPA, and has a similar responsibility with respect to public bodies and other trustees under The Personal Health Information Act.20

The Ombudsman cannot make orders that bind a public body. However, the broad powers of the Ombudsman to monitor compliance with FIPPA, to audit, to investigate, mediate and make recommendations about complaints, and the new duty to make his or her recommendations public, have a significant impact on the actions of public bodies.

Also, FIPPA has been amended to give the Ombudsman a new power with respect to complaints: where a public body has not acted on the recommendations of the Ombudsman in an access or privacy complaint, the Ombudsman may refer the matter to the Information and Privacy Adjudicator for review. The Adjudicator has the power to make an order against a public body that has not acted on the Ombudsman's recommendations.21

The Ombudsman's powers and duties under FIPPA fall into three broad categories:

1. monitoring and promoting compliance with FIPPA by public bodies;
2. promoting public awareness of access to information and protection of privacy under FIPPA; and
3. investigating, dealing with and resolving complaints about access to information and protection of personal information under FIPPA.22

Monitoring and Promoting Compliance with FIPPA - [Section 49 and Subsection 15(1)]

Note: The Ombudsman is given significant powers under FIPPA to monitor and promote compliance with FIPPA. Wherever possible, the Ombudsman promotes compliance with FIPPA, and with The Personal Health Information Act, by means of a collaborative approach.

The Ombudsman's General Powers under Section 49 of FIPPA

In addition to the Ombudsman's powers and duties respecting complaints under Part 5 of FIPPA, the Ombudsman has the following powers:

1. The Ombudsman may conduct investigations and audits and make recommendations to monitor and ensure compliance with FIPPA and the regulations under FIPPA.
• These broad powers enable the Ombudsman to ensure that public bodies comply with the access to information requirements in Part 2 of FIPPA and the protection of personal information requirements in Part 3 of FIPPA. An investigation under this clause does not have to be triggered by a specific complaint.
2. The Ombudsman may conduct investigations and audits and make recommendations to monitor and ensure compliance with requirements respecting the security and destruction of records that are set out in any other statute or regulation. In the case of a local public body, these powers also apply to requirements respecting security and destruction of records in a by-law or other legal instrument by which the local public body acts.24
• Clause 3(b) of FIPPA states that FIPPA "does not prohibit the transfer, storage or destruction of any record in accordance with any other enactment of Manitoba or Canada or a by-law or resolution of a government agency or local public body".
• Section 40 of FIPPA deals with retention of personal information, and section 41 deals with protection of personal information.26 At the present time, there are no regulations under FIPPA respecting destruction or security of personal information.
• This power permits the Ombudsman to investigate whether a public body is complying with the requirements of another Act, such as The Archives and Recordkeeping Act,27 or with its own by-laws, when it destroys records.
3. The Ombudsman may receive comments from the public about the administration of FIPPA.
4. The Ombudsman may comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies.29
• While the Ombudsman cannot require the Government to enact laws that comply with the spirit of FIPPA, or to repeal inconsistent laws, the ability to comment on proposed legislative schemes and programs and to inform the public about the implications of these schemes and programs for access to information or protection of privacy helps to ensure that the Government will be held accountable.
5. The Ombudsman may comment on the implications for protection of privacy of using or disclosing personal information for record linkage.
• Record linkage is a form of data matching involving the systematic comparison of sets of information, often personal, to establish relationships among data.
6. The Ombudsman may comment on the implications for protection of privacy of using information technology in the collection, storage, use or transfer of personal information.
7. The Ombudsman may bring to the attention of the head of a public body any failure to fulfill the duty to assist an applicant requesting access to information under Part 2 of FIPPA.
• The duty to assist applicants requesting access to information is set out in section 9 of FIPPA. The head of a public body is required to make "every reasonable effort to assist" an applicant and to "respond without delay, openly, accurately and completely" to a request for access to records under Part 2 of FIPPA.
8. The Ombudsman may recommend to a public body that the public body cease a specified practice of collecting, using or disclosing information that contravenes FIPPA, after giving the head of the public body an opportunity to make representations.
• Part 3 of FIPPA deals with the collection, use and disclosure of personal information.
9. The Ombudsman may recommend to a public body that the public body modify a specified practice of collecting, using or disclosing information that contravenes FIPPA, after giving the head of the public body an opportunity to make representations.
• Part 3 of FIPPA deals with the collection, use and disclosure of personal information.
10. The Ombudsman may recommend to a public body that the public body destroy a collection of personal information that was not collected in accordance with FIPPA, after giving the head of the public body an opportunity to make representations.
• A public body can only collect personal information for an authorized purpose set out in subsection 36(1) of FIPPA. A public body can only collect as much personal information as is reasonably necessary to accomplish the purpose for which it is collected [subsection 36(2)].
• Personal information must be collected directly from the individual it is about unless another method of collection is authorized under subsection 37(1) of FIPPA. When a public body collects personal information directly from the individual it is about, the public body must provide certain information to that individual [subsections 37(2) and (3)].39
11. The Ombudsman may make recommendations about the administration of FIPPA to the head of a public body or to the Minister responsible for FIPPA - the Minister of Sport, Culture and Heritage.
12. The Ombudsman may consult with any person with experience or expertise in any matter related to the purposes of FIPPA.
• The purposes of FIPPA are set out in section 2 of FIPPA.
13. The Ombudsman may engage in or commission research into anything affecting the achievement of the purposes of FIPPA.
• The purposes of FIPPA are set out in section 2 of FIPPA.44

Requests to Extend the Time Limit for Responding to Access Requests [Subsection 15(1)]

Ordinarily, when responding to a request for access to information under Part 2 of FIPPA, the head of a public body must respond to the applicant within 30 days.

The head may extend this 30 day time period for up to 30 additional days if one of the circumstances set out in clause 15(1)(a), (b), (c) or (d) apply. This extension of time for responding to the request may be for more than 30 additional days if the Ombudsman agrees.

Promoting Public Awareness of FIPPA - [Clause 49(b), Subsection 66(7) and Subsections 58(1) and 58(3)]

Under clause 49(b) of FIPPA, the Ombudsman has the general power to inform the public about FIPPA.

FIPPA has been amended to require the Ombudsman to make his or her recommendations respecting access and privacy complaints available to the public - for example, by publishing them on the Ombudsman's website.

The Ombudsman must make annual reports to the Legislative Assembly about FIPPA.

In addition to the requirement to make annual reports, the Ombudsman may, if it is in the public interest, publish special reports relating to any matter within the scope of the Ombudsman's powers and duties under FIPPA. A special report can include a report referring to and commenting on any particular matter investigated by the Ombudsman.

Investigating and Dealing with Complaints - [Part 5, Sections 59 to 74]

The Ombudsman's role in investigating and dealing with complaints about access to information and protection of privacy under FIPPA is dealt with in Chapter 8 of this Manual - "Independent Review: Complaints".

The Ombudsman can also initiate his or her own complaint about access to information or about protection of privacy under FIPPA.

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The Ombudsman's Powers When Conducting an Investigation [Sections 50 and 51]

Powers of a Commissioner under Part 5 of The Manitoba Evidence Act [Subsection 50(1)]

In carrying out an investigation under section 49 of FIPPA or an investigation of a complaint under Part 5 of FIPPA, the Ombudsman has all the powers and protections of a commissioner under Part V of The Manitoba Evidence Act. These powers include:

1. the power to summon witnesses by subpoena or summons;
2. the power to require witnesses to produce documents and things necessary to the investigation;
3. the power to examine witnesses under oath or affirmation;
4. the power to enter upon or into, and view or inspect, any land, building, works or property, if this will assist in the investigation;
5. the power, where a witness who has been summoned to appear neglects or refuses to do so, to issue a warrant to have the witness brought before the Ombudsman;
6. the power, where a witness who has been summoned to appear refuses to answer questions without lawful excuse, to issue a warrant committing the person to jail for not more than one month, unless in the meantime the person agrees to answer;
7. the power to search all documents or records relating to persons or matters within the scope of the investigation in any public office existing under any Act of the Legislature, without having to pay any fees.51

Power to Require Records to be Produced - [Subsections 50(2), (3) and (4)]

The Ombudsman:

• may require any record in the custody or under the control of a public body that the Ombudsman considers relevant to an investigation to be produced to the Ombudsman; and
• may examine any information in a record, including personal information.

A public body must produce any record or a copy of a record required by the Ombudsman within 14 days, despite any other statute or regulation or any privilege of the law of evidence.

If it is not practicable to make a copy of the requested record, the head of the public body may require the Ombudsman to examine the original record at its site.

Right to Enter Offices of Public Bodies, Examine Records, etc. - [Section 51]

Despite any other statute or regulation or any privilege of the law of evidence, when exercising powers and performing duties under FIPPA, the Ombudsman has the right:

• to enter any office of a public body and examine and make copies of any record in the custody of the public body; and
• to speak in private with any officer or employee of a public body.

If you have any questions about the Ombudsman's power to require or examine records, contact legal counsel.

Duty of Public Body to Produce Records, etc. - [Subsections 50(3) and 50(4) and Sections 85 and 86]

A public body and its officers and employees must produce a record or a copy of a record requested by the Ombudsman under FIPPA within 14 days. This duty applies despite any other statute or regulation or any privilege of the law of evidence.56 If you have any questions about the duty to provide a record to the Ombudsman, contact legal counsel.

If it is not practicable to make a copy of the requested record, the head of the public body may require the Ombudsman to examine the original record at its site.57

No person is guilty of an offence under another statute or regulation because he or she has complied with a request or requirement under FIPPA to produce a record or provide information or evidence to the Ombudsman, or to a person acting for or under the direction of the Ombudsman.58

Indeed, it can be an offence under FIPPA not to provide records or information to the Ombudsman. Any person who wilfully

• makes a false statement to the Ombudsman or another person in performing duties or exercising powers under FIPPA;
• misleads or attempts to mislead the Ombudsman or another person in performing duties or exercising powers under FIPPA;
• obstructs the Ombudsman or another person in performing duties or exercising powers under FIPPA; or
• destroys a record or erases information in a record that is subject to FIPPA with the intent to evade a request for access to records;
• commits an offence under FIPPA. If found guilty by a court, that person may be fined up to $50,000.

A public body, and any person acting on behalf of a public body, must not take any negative employment action against an employee because the employee has complied with a request or requirement to produce a record or provide information or evidence to the Ombudsman, or a person acting for or under the direction of the Ombudsman, under FIPPA.

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Protection of Information Provided to the Ombudsman [Sections 52 to 55, Subsection 1(1) and Clause 4(E)

Investigations in Private - [Section 52]

The Ombudsman must carry out every investigation under section 49 of FIPPA, and every investigation of a complaint under Part 5 of FIPPA, in private.

Statements to and Reports of the Ombudsman Not Admissible in Evidence - [Sections 53 and 54]

A statement made or an answer given by a person during an investigation by the Ombudsman under FIPPA, and a report or recommendation of the Ombudsman, cannot be introduced or admitted as evidence in a court or in any other proceeding, except:

1. in a prosecution in the criminal courts for perjury in respect of sworn testimony;
2. in a prosecution in the criminal courts for an offence under FIPPA;
3. in a review by the Information and Privacy Adjudicator under FIPPA, where the Ombudsman is a party to that review; or
4. in an application to the Manitoba Court of Queen's Bench for judicial review of an order of the Adjudicator under FIPPA.

The Ombudsman, and anyone acting for or under the direction of the Ombudsman, cannot be required to give evidence, in a court or in any other proceeding, about information that comes to their knowledge when performing duties or exercising powers under FIPPA.

Anything said, any information supplied and any record produced by a person during an investigation by the Ombudsman under FIPPA is privileged in the same manner as if it were said, supplied or produced in a proceeding in a court.

Restrictions on Disclosure of Information by the Ombudsman - [Section 55]

Section 55 of FIPPA restricts disclosure by the Ombudsman, and by the Ombudsman's staff, of information they obtain when performing duties or exercising powers under FIPPA.

1. information that is necessary to perform a duty or to exercise a power of the Ombudsman under FIPPA;67
2. information that is necessary to establish the grounds for findings and recommendations contained in a report by the Ombudsman under FIPPA;68
3. information for the purpose of:
1. a prosecution in the criminal courts for perjury in respect of sworn testimony;
2. a prosecution in the criminal courts for an offence under FIPPA;
3. a review by the Information and Privacy Adjudicator under FIPPA, where the Ombudsman is a party to that review; or
4. an application to the Manitoba Court of Queen's Bench for judicial review of an order of the Adjudicator under FIPPA.69

In addition, the Ombudsman may disclose to the Manitoba Minister of Justice and Attorney General information relating to the commission of an offence under FIPPA or under any other statute or regulation of Manitoba or Canada if the Ombudsman considers there is reason to believe an offence has been committed.

When carrying out an investigation and when performing any other duty or exercising any power under FIPPA, the Ombudsman, and anyone acting for or under the direction of the Ombudsman, must take "every reasonable precaution" to avoid disclosing, and must not disclose:

• any information the head of a public body is authorized or required to refuse to disclose in response to a request for access to information under Part 2 of FIPPA;71 and
• whether information exists, if the head of a public body is authorized under subsection 12(2) of FIPPA to refuse to confirm or deny that the information exists when responding to a request for access to information under Part 2 of FIPPA.

Ombudsman's Records Not Accessible under FIPPA - [Subsection 1(1) and Clause 4(e)]

The office of the Ombudsman is not a public body as defined in subsection 1(1) of FIPPA, and the access to information and protection of personal information provisions of FIPPA do not apply to the Ombudsman, or to the Ombudsman's staff or office.73

In addition, as the Ombudsman is an officer of the Legislative Assembly, FIPPA does not apply to a record made by or for the Ombudsman. For example:

• records made by the Ombudsman or the Ombudsman's staff under FIPPA do not fall under FIPPA;
• records made for the Ombudsman by a government department under FIPPA do not fall under FIPPA;
• even if a record that was made by or for the Ombudsman (or a copy of it) is in the custody of a department of the government or of some other public body that falls under FIPPA, the record (or copy) does not fall under FIPPA.74

As a result, the Ombudsman's records are not accessible under FIPPA.