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The
Freedom of Information and Protection of Privacy Act (FIPPA)
came into force on May 4, 1998. It is an enhanced information rights
statute that replaced The Freedom of Information Act. It gives
an individual a legal right of access to records held by Manitoba
public bodies, subject to specific and limited exceptions. The Act
also requires that public bodies protect the privacy of an individual's
personal information existing in records held by public bodies.
FIPPA applies
to public
bodies, which include provincial government departments,
government agencies and local
public bodies. Provincial public bodies, which come under the
executive branch of the Manitoba government, include government departments,
offices of the ministers of government and the Executive Council Office
(Cabinet). FIPPA also applies to Manitoba government agencies including
boards, commissions, agencies, or other bodies whose members or whose
board members are all appointed by a Manitoba statute or by order
of the Lieutenant Governor in Council.
Local public bodies
include educational
bodies (such as school divisions, universities and colleges),
health
care bodies (such as hospitals and regional health authorities)
and local
government bodies (such as the City of Winnipeg, municipalities,
local government districts, planning districts and conservation districts).
FIPPA does not
apply to the legislative or judicial branches of the government. These
bodies have their own legislation and rules respecting access to records
and protection of privacy. Additionally, FIPPA does not apply to certain
records specified under section
4, even when these records are held by public bodies. The following
Manitoba statutes prevail, in the event there is an inconsistency
or conflict between the provisions of these statutes and FIPPA: The
Adoption Act, The Child and Family Services Act, The Securities Act,
The Statistics Act, The Vital Statistics Act, and The Workers'
Compensation Act.

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Section
2 of FIPPA describes the purposes of the Act, which are:
- to allow any
person a right of access to records in the custody or under the
control of public bodies, subject to the limited and specific exceptions
set out in the Act;
- to allow individuals
a right of access to records containing personal information about
themselves in the custody or under the control of public bodies,
subject to the limited and specific exceptions set out in the Act;
- to allow individuals
a right to request corrections to records containing personal information
about themselves in the custody or under the control of public bodies;
- to control
the manner in which public bodies may collect personal information
from individuals and to protect individuals against unauthorized
use or disclosure of personal information by public bodies; and,
- to provide
for an independent review of the decisions of public bodies under
FIPPA.

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FIPPA provides
for access to records held by Manitoba public bodies. You may wish
to consult the Access
and Privacy Directory to assist in identifying and locating the
records of the provincial government bodies. The Act sets out the
manner in which to make a request for access under FIPPA. A request
must be made on the prescribed application
form.
The right of access
is subject to limited and specific exceptions to disclosure. The practice
of severance, 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. There
are two types of exceptions to disclosure in FIPPA: mandatory exceptions
and discretionary exceptions.
Mandatory Exceptions
A mandatory exception to disclosure contains the words "the head of
a public body shall refuse to disclose information...". If all or
part of the information contained in a record comes under a mandatory
exception, the head
of a public body is required to refuse to disclose the information.
The mandatory exceptions to disclosure, in Division 3 of Part 2 of
FIPPA, are:
- Privacy of
a Third Party (section
17)
- Business Interests
of Third Parties (section
18)
- Cabinet Confidences
(section
19)
- Information
Provided by Another Government (section
20)
- No Disclosure
of a Law Enforcement Record if Prohibited by an Enactment of Canada
[section
25(2)]
- Solicitor-Client
Privilege of a Third Party [section
27(2)]
Discretionary
Exceptions
A discretionary exception to disclosure contains the words "the head
of a public body may refuse to disclose information…". A discretionary
exception permits the head of a public body to disclose information
in a record, even though it falls within the exception. In other words,
the head must consider all relevant factors and the particular circumstances
of the case in determining whether it is appropriate to disclose the
information, unless an exception in another section of FIPPA applies.
The main discretionary exceptions to disclosure, in Division 4 of Part
2 of FIPPA are:

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FIPPA provides
for the protection of an individual's personal information held by
public bodies. Personal
information is information, recorded in any form, about an identifiable
individual. FIPPA imposes obligations on public bodies respecting
the collection, accuracy, correction, retention, protection, use and
disclosure of personal information.
The following
are key privacy principles and practices reflected in FIPPA:
Access
- Where a person requests access under Part 2 of FIPPA to a record
containing personal information about someone else, a public body
must refuse access if disclosure would be an unreasonable invasion
of the privacy of that other person (section
17).
Collection
- Where a public body collects personal information, the collection
must be for a purpose authorized under FIPPA and be limited to the
minimum amount necessary to accomplish the purpose (section
36).
- Personal information must be collected directly from the individual,
unless another method of collection is authorized under FIPPA (section
37).
Accuracy
- Public bodies must take reasonable steps to ensure that personal
information is accurate and complete if it will be used to make
a decision that directly affects the individual the information
is about (section
38).
Correction
- An individual who has been given access to a record containing
his or her own personal information has a right to request correction
of errors or omissions in the record (section
39).
Retention
- Public bodies must keep personal information for a reasonable
period of time so that the individual the information is about has
a reasonable opportunity to access it (section
40).
Security
- Public bodies must protect personal information by making reasonable
security arrangements against such risks as unauthorized access,
use, disclosure or destruction (section
41).
Use
- Every use of personal information by a public body must be authorized
under FIPPA (section
43).
- Every use of personal information by a public body must be limited
to the minimum amount of information necessary to accomplish the
purpose for which it is used and be limited to the employees and
agents of the public body who need to know the information (section
42).
Disclosure
- Every disclosure of personal information by a public body must
be authorized under FIPPA (section
44).
- Every disclosure of personal information by a public body must
be limited to the minimum amount of information necessary to accomplish
the purpose for which it is disclosed (section
42).
Third-Party Agreements
- If personal information is collected, used by, disclosed to or
disclosed by persons or organizations acting on behalf of the public
body under an agreement, the public body is responsible for ensuring
that the requirements of Part 3 of FIPPA are met.
Research Agreements
- A public body may disclose personal information for a research
purpose only if the requirements of section
47 of FIPPA are met and the researcher has entered into a written
agreement respecting the use and protection of personal information.
Linking Databases and Matching Personal Information
- Where a public body proposes to use or disclose personal information
in order to link information databases or match personal information
in one database with information in another, approval must be given
in accordance with the requirements of the privacy assessment review
process in section
46.
Disclosure of Personal Information on a Bulk or Volume Basis
- Where a public body receives a request for disclosure of personal
information on a bulk or volume basis, approval must be given in
accordance with the requirements of the privacy assessment review
process in section
46.
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FIPPA provides
for an independent review of the decisions of public bodies under
this Act. The Ombudsman is an independent Officer of the Legislature
with broad investigative powers. The responsibilities of the Ombudsman
under FIPPA include the investigation of complaints respecting access
to information and protection of personal information, monitoring
compliance with FIPPA by public bodies and promoting public awareness
of FIPPA.

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FIPPA allows you
to make a complaint to the Manitoba Ombudsman regarding the following
matters, as long as your complaint is made within the specified time
limits:
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COMPLAINT |
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TIME
LIMIT |
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You have not received a response and it has been more than 30 days
since the public body received your application |
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FIPPA requires that this complaint be made within 120 days of making
an application for access [section
60(3)] |
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You wish to challenge the decision of the public body to extend its
response time beyond 30 days |
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FIPPA requires that this complaint be made within 60 days of being
notified of the public body's decision [section
60(2)] |
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You have been denied access to all or part of the records for which
you applied |
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FIPPA requires that this complaint be made within 60 days of being
notified of the public body's decision to refuse access, unless the
complaint relates to a decision under section
34(5) [section
60(2)] |
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Your request for correction of your personal information has been
refused |
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FIPPA requires
that this complaint be made within 60 days of being notified of
the public body's decision not to correct the record [section
60(2)]
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You believe your own personal information has been collected, used
or disclosed in violation of Part 3 of the Act |
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There is no specific time limit under FIPPA, although the Ombudsman
may decide not to investigate if the elapsed time makes an investigation
no longer practical or desirable |
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As a third
party you wish to contest the public body's decision to give access
to records against your wishes |
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FIPPA requires that this complaint be made within 21 days of being
notified of the public body's decision to give access [section
34(4)] |
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Where an individual
has a right to make a complaint under FIPPA, the complaint may be
made by another person who is authorized under section
79 to act on behalf of that individual. For example, if the person
has written authorization from the individual to act on the individual's
behalf, or is the parent or guardian of a minor and the exercise of
the right or power would not constitute an unreasonable invasion of
the minor's privacy, or is otherwise authorized under section 79 to
act on the individual's behalf.
A complaint must
be made on the prescribed complaint form.
Copies are available from the Office of the Manitoba Ombudsman and
the Government Records Office of the Provincial Archives of Manitoba
or you may photocopy the blank form which is reproduced in the Access
and Privacy regulation or print it off the web site. Additional information
may be attached to your complaint form, such as copies of any relevant
documentation, including your application for access or the written
response from the public body. If you are making a complaint about
the collection, use or disclosure of your personal information, please
attach a letter describing the details of your concern to your complaint
form. Another option, instead of writing a letter, is to complete a Questionnaire for a Privacy Complaint. We do not accept complaints by e-mail.
If you have any
questions concerning the making of a complaint, you may contact
the Office of the Manitoba Ombudsman for assistance.

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The Ombudsman
will investigate a complaint to determine if the public body is in
compliance with FIPPA. The Ombudsman may also initiate a complaint
concerning any matter about which the Ombudsman is satisfied there
are reasonable grounds to investigate under FIPPA [section
59(5)]. During the investigation, the Ombudsman may take any steps
considered appropriate to resolve the complaint informally to the
satisfaction of the parties and in a manner consistent with the legislation
(section
62).
The Ombudsman
may decide not to investigate a complaint if in his opinion: the length
of elapsed time makes an investigation of a privacy complaint no longer
practicable or desirable; the subject matter of the complaint is trivial
or the complaint is not made in good faith or is frivolous or vexatious;
the circumstances of the complaint do not require investigation (section
63).
In the course
of an investigation, the Ombudsman is required to give the complainant
and the public body an opportunity to make representations (section
64). FIPPA allows for a 90-day time limit for an investigation
to be completed unless the Ombudsman extends this time period (section
65).
On completing
an investigation of a complaint, the Ombudsman is required to prepare
a report containing the findings about the complaint and any recommendations
the Ombudsman considers appropriate respecting the complaint. The
report will be provided to the complainant and the public body concerned.
If the report contains recommendations, the head of the public body
must send the Ombudsman a written response within 15 days after receiving
the report indicating whether the recommendations have been accepted
and describing any action taken or proposed to implement them, or,
the reasons why the head refuses to take actions to implement them
(section
66).

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In addition to
the Ombudsman's powers and duties respecting complaints, the Ombudsman
has the following general powers and duties under section
49 of FIPPA:
- to conduct
investigations and audits and make recommendations to monitor and
ensure compliance with FIPPA;
- to inform the
public about FIPPA and to receive comments from the public about
the administration of the Act;
- to comment
on the implications for access to information or for the protection
of privacy of proposed legislative schemes or programs of public
bodies;
- to comment
on the implications for protection of privacy of using or disclosing
personal information for record linkage or using information technology
in the collection, storage, use or transfer of personal information;
- to bring to
the attention of the head of a public body any failure to fulfil
the duty to assist an applicant; and
- the
Ombudsman submits an annual report to the Manitoba Legislature about
the work of the office, complaints and investigations, compliance
with the Ombudsman's recommendations, and any other matters about
access to information and protection of privacy that the Ombudsman
considers appropriate. The Ombudsman may also issue special reports
in the public interest relating to any matter respecting FIPPA (section
58).

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FIPPA sets out,
in sections 67 to 74, who may appeal a decision of a public body to
the Manitoba Court of Queen's Bench, which decisions may be appealed,
and the process of making an appeal. Prior to making an appeal, FIPPA
requires that a person make a complaint to the Ombudsman. After receiving
a report from the Ombudsman, an appeal may be made:
- by a person
who has been refused access to a record or part of a record requested
under section
8(1);
- by a person
who is a third party notified under section
33 of a decision by the head of a public body to give access
to the third party's information in the record.
There is no appeal
to court respecting a public body's collection, use or disclosure
of personal information under FIPPA.
If the Ombudsman
believes that a decision of a public body raises a significant issue
of statutory interpretation or that an appeal is clearly in the public
interest, the Ombudsman may appeal a decision concerning a refusal
of access to a record or a decision to give access to third party
information, with the consent of the person who has the right to appeal.
The Ombudsman may also intervene as a party to an appeal made by a
person concerning a decision to refuse access or give access to third
party information in a record.
Where a person
has a right to appeal a decision under FIPPA, an appeal may be made
by filing an application with the Manitoba Court of Queen's Bench.
An application for an appeal must be made within 30 days after a person
has received the Ombudsman's report or within a longer period of time,
which the Court may allow in special circumstances. The application
for an appeal names the head of the public body as the respondent.
The Manitoba Court
of Queen's Bench is required to consider an appeal under FIPPA as
a new matter, meaning that the Court is not restricted to the evidence
that was produced before the Ombudsman. The Court may dismiss an appeal
if it determines that the public body was required or authorized to
refuse access to a record. If the Court determines that the public
body was not required or authorized to refuse access to a record,
it may order the public body to give access to some or all of the
information. The Court may also make other orders it considers appropriate.
A decision of the Court on an appeal is final and binding and there
is no appeal from this decision.

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