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(Assented to June 28, 1997)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
PART 1
INTRODUCTORY PROVISIONS
In this Act,
"applicant" means a person who makes a request for access to a record under section 8; («auteur de la demande»)
"Cabinet" means the Executive Council appointed under The Executive Government Organization Act, and includes a committee of the Executive Council; («Cabinet»)
"court", for the purpose of an appeal under section 67 or 68, means the Court of Queen's Bench; («tribunal»)
"department" means a department, branch or office of the executive government of the province; («ministère»)
"educational body" means
 |
a. |
a school division
or school district established under The Public Schools Act, |
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| b. | The University
of Manitoba, |
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| c. | The University
of Winnipeg, |
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| c1. | Brandon University,
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| d. | a college established
under The Colleges Act, and |
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| e. | any other body designated as an educational body in the regulations; («organisme d'éducation») |
"employee", in relation to a public body, includes a person retained under a contract to perform services for the public body; («employé»)
"enactment" means an Act or regulation; («texte»)
"government agency" means
"head", in relation to a public body, means
- any board, commission, association, agency, or similar body, whether incorporated or unincorporated, all the members of which, or all the members of the board of management or board of directors or governing board of which, are appointed by an Act of the Legislature or by the Lieutenant Governor in Council, and
- any other body designated as a government agency in the regulations; («organisme gouvernemental»)
- in the case of a department, the minister who presides over it,
- in the case of an incorporated government agency, its chief executive officer,
- in the case of an unincorporated government agency, the minister who is charged by the Lieutenant Governor in Council with the administration of the Act under which the agency is established or who is otherwise responsible for the agency, and
- in any other case, the person or group of persons designated under section 80 or the regulations as the head of the public body; («responsable d'organisme public»)
NOTE: Clause (d) comes into force on proclamation.
"health care body" means
"judicial administration record" means a record containing information relating to a judge, master, magistrate or justice of the peace, including information relating to
- a hospital designated under The Health Services Insurance Act;
- a regional health authority established under The Regional Health Authorities Act,
- the board of a health and social services district established under The District Health and Social Services Act,
- the board of a hospital district established under The Health Services Act, and
- any other body designated as a health care body in the regulations; («organisme de soins de santé»)
"law enforcement" means any action taken for the purpose of enforcing an enactment, including
- the scheduling of judges, hearings and trials,
- the content of judicial training programs,
- statistics of judicial activity prepared by or for a judge,
- a judicial directive, and
- any record of the Judicial Inquiry Board or the Judicial Council established under The Provincial Court Act; («document judiciaire»)
"local government body" means
- policing,
- investigations or inspections that lead or could lead to a penalty or sanction being imposed, or that are otherwise conducted for the purpose of enforcing an enactment, and
- proceedings that lead or could lead to a penalty or sanction being imposed, or that are otherwise conducted for the purpose of enforcing an enactment; («exécution de la loi»)
"local public body" means
- The City of Winnipeg,
- a municipality,
- a local government district,
- a local committee, community council or incorporated community council under The Northern Affairs Act,
- a planning district established under The Planning Act,
- a conservation district established under The Conservation Districts Act,
- any other body designated as a local government body in the regulations; («organisme d'administration locale»)
- an educational body,
- a health care body, and
- a local government body; («organisme public local»)
"minister" means a member of Cabinet; («ministre»)
"officer of the Legislative Assembly" means the Speaker of the Legislative Assembly, the Clerk of the Legislative Assembly, the Chief Electoral Officer, the Ombudsman, the Children's Advocate and the Provincial Auditor; («fonctionnaire de l'Assemblée législative»)
"Ombudsman" means the Ombudsman appointed under The Ombudsman Act; («ombudsman»)
"personal health information" means recorded information about an identifiable individual that relates to
and includes
- the individual's health, or health care history, including genetic information about the individual,
- the provision of health care to the individual, or
- payment for health care provided to the individual,
"personal information" means recorded information about an identifiable individual, including
- the PHIN as defined in The Personal Health Information Act and any other identifying number, symbol or particular assigned to an individual, and
- any identifying information about the individual that is collected in the course of, and is incidental to, the provision of health care or payment for health care; («renseignements médicaux personnels»)
- the individual's name,
- the individual's home address, or home telephone, facsimile or e-mail number,
- information about the individual's age, sex, sexual orientation, marital or family status,
- information about the individual's ancestry, race, colour, nationality, or national or ethnic origin,
- information about the individual's religion or creed, or religious belief, association or activity,
- personal health information about the individual,
- the individual's blood type, fingerprints or other hereditary characteristics,
- information about the individual's political belief, association or activity,
- information about the individual's education, employment or occupation, or educational, employment or occupational history,
- information about the individual's source of income or financial circumstances, activities or history,
- information about the individual's criminal history, including regulatory offences,
- the individual's own personal views or opinions, except if they are about another person,
- the views or opinions expressed about the individual by another person, and
- an identifying number, symbol or other particular assigned to the individual; («renseignements personnels»)
"personal information bank" means a collection of personal information that is organized or retrievable by the name of an individual or by an identifying number, symbol or other particular assigned to an individual; («fichier de renseignements personnels»)
"public body" means
NOTE: Clause (e) comes into force on proclamation.
- a department,
- a government agency,
- the Executive Council Office,
- the office of a minister, and
- a local public body,
but does not include
- the office of a Member of the Legislative Assembly who is not a minister,
- the office of an officer of the Legislative Assembly, or
- The Court of Appeal, the Court of Queen=s Bench or the Provincial Court; («organisme public»)
"public registry" means a registry of information designated in the regulations that is maintained by a public body and is available to the general public; («registre public»)
"record" means a record of information in any form, and includes information that is written, photographed, recorded or stored in any manner, on any storage medium or by any means including by graphic, electronic or mechanical means, but does not include electronic software or any mechanism that produces records; («document»)
"responsible minister" means the minister charged by the Lieutenant Governor in Council with the administration of this Act; («ministre responsable»)
"review committee" means the Privacy Assessment Review Committee established by the minister under section 77; («Comité d'évaluation»)
"third party" means a person, group of persons or an organization other than the applicant or a public body. («tiers»)
S.M. 1998, c. 6, s. 13.
The purposes of this Act 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 this 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 this 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 this Act.
This Act
- is in addition to and does not replace existing procedures for access to records or information normally available to the public, including any requirement to pay fees;
- 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;
- does not limit the information otherwise available by law to a party to legal proceedings; and
- does not affect the power of a court or tribunal to compel a witness to testify or to compel the production of documents.
Records to which this Act applies
4This Act applies to all records in the custody or under the control of a public body but does not apply to
- information in a court record, a record of a judge, master, magistrate or justice of the peace, a judicial administration record or a record relating to support services provided to a judge or judicial officer of a court;
- a note made by or for, or a communication or draft decision of, a person who is acting in a judicial or quasi-judicial capacity;
- a record of a Member of the Legislative Assembly who is not a minister;
- a personal or constituency record of a minister;
- a record made by or for an officer of the Legislative Assembly;
- a record made by or for an elected official of a local public body relating to constituency matters;
NOTE: Clause (f) comes into force on proclamation.
- teaching materials or research information of an employee of an educational institution;
- a question that is to be used on an examination or test;
- a record relating to a prosecution or an inquest under The Fatality Inquiries Act if all proceedings concerning the prosecution or inquest have not been completed;
- records acquired by the Provincial Archives of Manitoba or the archives of a public body from a person or entity other than a public body; and
- a record originating from a credit union that is in the custody or under the control of the Credit Union Deposit Guarantee Corporation under The Credit Unions and Caisses Populaires Act.
Relationship to other Acts
5(1)The head of a public body shall refuse to give access to or disclose information under this Act if the disclosure is prohibited or restricted by another enactment of Manitoba.
Conflict with another Act
5(2)If a provision of this Act is inconsistent or in conflict with a provision of another enactment, the provision of this Act prevails unless the other enactment expressly provides that the other enactment applies despite this Act.
Sunset provision
5(3)Three years after section 7 comes into force, subsection (1) of this section is repealed and subsection (2) of this section comes into force.
PART 2
ACCESS TO INFORMATION
DIVISION 1
APPLICATION OF THIS PART
Part does not apply to individual's personal health information
6An individual seeking access to a record containing his or her own personal health information must request access under The Personal Health Information Act, and this Part does not apply.
DIVISION 2
OBTAINING ACCESS TO RECORDS
Subject to this Act, an applicant has a right of access to any record in the custody or under the control of a public body, including a record containing personal information about the applicant.
Severing information
7(2)The right of access to a record does not extend to information that is excepted from disclosure under Division 3 or 4 of this Part, but if that information can reasonably be severed from the record, an applicant has a right of access to the remainder of the record.
Fee
7(3)The right of access to a record is subject to the payment of any fee required by the regulations.
To obtain access to a record, a person must make a request to the public body that the person believes has custody or control of the record.
Prescribed form
8(2)A request must be in the prescribed form and must provide enough detail to enable an experienced officer or employee of the public body to identify the record.
Oral request
8(3)An applicant may make an oral request for access to a record if the applicant
- has a limited ability to read or write English or French; or
- has a disability or condition that impairs his or her ability to make a written request.
The head of a public body shall make every reasonable effort to assist an applicant and to respond without delay, openly, accurately and completely.
Access to records in electronic form
10(1)If information requested is in an electronic form in the custody or under the control of a public body, the head of the public body shall produce a record for the applicant if
- it can be produced using the normal computer hardware and software and technical expertise of the public body; and
- producing it would not interfere unreasonably with the operations of the public body.
Creating a record in the form requested
10(2)If a record exists but is not in the form requested by the applicant, the head of the public body may create a record in the form requested if the head is of the opinion that it would be simpler or less costly for the public body to do so.
Time limit for responding
11(1)The head of a public body shall make every reasonable effort to respond to a request in writing within 30 days after receiving it unless
Failure to respond
- the time limit for responding is extended under section 15; or
- the request has been transferred under section 16 to another public body.
11(2)
The failure of the head of a public body to respond to a request within the 30 day period or any extended period is to be treated as a decision to refuse access to the record.
In a response under section 11, the head of the public body shall inform the applicant
- whether access to the record or part of the record is granted or refused;
- if access to the record or part of the record is granted, where, when and how access will be given; and
- if access to the record or part of the record is refused,
- in the case of a record that does not exist or cannot be located, that the record does not exist or cannot be located,
- in the case of a record that exists and can be located, the reasons for the refusal and the specific provision of this Act on which the refusal is based,
- of the title and business telephone number of an officer or employee of the public body who can answer the applicant's questions about the refusal, and
- that the applicant may make a complaint to the Ombudsman about the refusal.
Refusal to confirm or deny existence of record
12(2)Despite clause (1)(c), the head of a public body may, in a response, refuse to confirm or deny the existence of
- a record containing information described in section 24 or 25; or
- a record containing personal information about a third party if disclosing the existence of the record would be an unreasonable invasion of the third party's privacy.
Repetitive or incomprehensible request
13(1)A head of a public body may refuse to give access to a record or a part of a record if the request is repetitive or incomprehensible or is for information already provided to the applicant or that is publicly available.
Notice
13(2)
In the circumstances mentioned in subsection (1), the head shall state in the response given under section 11
- that the request is refused and the reason why;
- the reasons for the head's decision; and
- that the applicant may make a complaint to the Ombudsman about the refusal.
How access will be given
14(1)Subject to subsection 7(2), the right of access is met under this Part,
- if the applicant has asked for a copy and the record can reasonably be reproduced, by giving the applicant a copy of the record; or
- if the applicant has asked to examine a record or has asked for a copy of a record that cannot reasonably be reproduced, by permitting the applicant to examine the record or a part of it or by giving him or her access in accordance with the regulations.
Explanation
14(2)The head of a public body who gives access to a record may give the applicant any additional information that the head believes may be necessary to explain it.
Extending the time limit for responding
15(1)The head of a public body may extend the time for responding to a request for up to an additional 30 days, or for a longer period if the Ombudsman agrees, if
- the applicant does not give enough detail to enable the public body to identify a requested record;
- a large number of records is requested or must be searched, and responding within the time period set out in section 11 would interfere unreasonably with the operations of the public body;
- time is needed to consult with a third party or another public body before deciding whether or not to grant access to a record; or
- a third party makes a complaint under subsection 59(2).
Notice of extension to applicant
15(2)If the time is extended under subsection (1), the head of the public body shall send a written notice to the applicant setting out
- the reason for the extension;
- when a response can be expected; and
- that the applicant may make a complaint to the Ombudsman about the extension.
Transferring a request
16(1)
Within seven days after a public body receives a request for access to a record, the head of the public body may transfer it to another public body if
- the record was produced by or for the other public body;
- the other public body was the first to obtain the record; or
- the record is in the custody or under the control of the other public body.
Response within 30 days after transfer
16(2)If a request is transferred under subsection (1),
- the head of the public body who transferred the request shall notify the applicant of the transfer in writing as soon as possible; and
- the head of the public body to which the request is transferred shall make every reasonable effort to respond to the request within 30 days after receiving it unless that time limit is extended under section 15 or notice is given to a third party under section 33.
DIVISION 3
MANDATORY EXCEPTIONS TO DISCLOSURE
PRIVACY OF A THIRD PARTY
Disclosure harmful to a third party's privacy
17(1)The head of a public body shall refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party's privacy.
Disclosures deemed to be an unreasonable invasion of privacy
17(2)A disclosure of personal information about a third party is deemed to be an unreasonable invasion of the third party's privacy if
- the personal information is personal health information;
- the personal information was compiled and is identifiable as part of an investigation into a possible violation of a law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;
- disclosure could reasonably be expected to reveal the identity of a third party who has provided information in confidence to a public body for the purposes of law enforcement or the administration of an enactment;
- the personal information relates to eligibility for or receipt of income assistance, legal aid benefits, social service benefits or similar benefits, or to the determination of benefit levels;
- the personal information relates to the third party's employment, occupational or educational history;
- the personal information was collected on a tax return or for the purpose of determining tax liability or collecting a tax;
- the personal information describes the third party's source of income or financial circumstances, activities or history;
- the personal information consists of personal recommendations or evaluations, character references or personnel evaluations; or
- the personal information indicates the third party's racial or ethnic origin, religious or political beliefs or associations, or sexual orientation.
Determining unreasonable invasion of privacy
17(3)In determining under subsection (1) whether a disclosure of personal information not described in subsection (2) would unreasonably invade a third party's privacy, the head of a public body shall consider all the relevant circumstances including, but not limited to, whether
- the disclosure is desirable for the purpose of subjecting the activities of the Government of Manitoba or a public body to public scrutiny;
- the disclosure is likely to promote public health or safety or protection of the environment;
- the disclosure will assist in a fair determination of the applicant's rights;
- the disclosure may unfairly expose the third party to harm;
- the personal information has been provided, explicitly or implicitly, in confidence;
- the personal information is highly sensitive;
- the personal information is likely to be inaccurate or unreliable;
- the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant; and
- the disclosure would be inconsistent with the purpose for which the personal information was obtained.
When disclosure not unreasonable
17(4)Despite subsection (2), disclosure of personal information is not an unreasonable invasion of a third party's privacy if
- the third party has consented to or requested the disclosure;
- there are compelling circumstances affecting the mental or physical health or the safety of the applicant or another person and notice of the disclosure is mailed to the last known address of the third party;
- an enactment of Manitoba or Canada expressly authorizes or requires the disclosure;
- the disclosure is for research purposes and is in accordance with section 47;
- the information is about the third party's job classification, salary range, benefits, employment responsibilities or travel expenses
- as an officer or employee of a public body,
- as a minister, or
- as an elected or appointed member of the governing council or body of a local public body or as a member of the staff of such a council or body;
- the disclosure reveals financial or other details of a contract to supply goods or services to or on behalf of a public body;
- the disclosure reveals information about a discretionary benefit of a financial nature granted to the third party by a public body, including the granting of a licence or permit;
- the information is about an individual who has been dead for more than 10 years; or
- the record requested by the applicant is publicly available.
Disclosure with third party's consent
17(5)If the third party consents to or requests disclosure under clause (4)(a), the head of the public body may
- require the consent or request to be in writing; and
- comply with the requirement to disclose by disclosing the information directly to the third party rather than to the applicant.
Volume disclosure from a public registry
17(6)The head of a public body shall not disclose to an applicant under this Part personal information in a public registry on a volume or bulk basis.
BUSINESS INTERESTS OF THIRD PARTIES
Disclosure harmful to a third party's business interests
18(1)The head of a public body shall refuse to disclose to an applicant information that would reveal
- a trade secret of a third party;
- commercial, financial, labour relations, scientific or technical information supplied to the public body by a third party, explicitly or implicitly, on a confidential basis and treated consistently as confidential information by the third party; or
- commercial, financial, labour relations, scientific or technical information the disclosure of which could reasonably be expected to
- harm the competitive position of a third party,
- interfere with contractual or other negotiations of a third party,
- result in significant financial loss or gain to a third party,
- result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, or
- reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute.
Tax return information
18(2)The head of a public body shall refuse to disclose to an applicant information about a third party that was collected on a tax return or for the purpose of determining tax liability or collecting a tax.
Exceptions
18(3)Subsections (1) and (2) do not apply if
- the third party consents to the disclosure;
- the information is publicly available;
- an enactment of Manitoba or Canada expressly authorizes or requires the disclosure; or
- the information discloses the final results of a product or environmental test conducted by or for the public body, unless the test was done for a fee paid by the third party.
Disclosure in the public interest
18(4)Subject to section 33 and the other exceptions in this Act, a head of a public body may disclose a record that contains information described in subsection (1) or (2) if, in the opinion of the head, the private interest of the third party in non-disclosure is clearly outweighed by the public interest in disclosure for the purposes of
- public health or safety or protection of the environment;
- improved competition; or
- government regulation of undesirable trade practices.
CABINET CONFIDENCES
The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet, including
- an agenda, minute or other record of the deliberations or decisions of Cabinet;
- discussion papers, policy analyses, proposals, advice or similar briefing material submitted or prepared for submission to Cabinet;
- a proposal or recommendation prepared for, or reviewed and approved by, a minister for submission to Cabinet;
- a record that reflects communications among ministers relating directly to the making of a government decision or the formulation of government policy; and
- a record prepared to brief a minister about a matter that is before, or is proposed to be brought before, Cabinet or that is the subject of communications among ministers relating directly to government decisions or the formulation of government policy.
Exceptions
19(2)Subsection (1) does not apply if
- the Cabinet for which, or in respect of which, the record has been prepared consents to the disclosure; or
- the record is more than 30 years old.
INFORMATION PROVIDED BY ANOTHER GOVERNMENT
Information provided by another government to department or government agency
20(1)The head of a department or government agency shall refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal information provided, explicitly or implicitly, in confidence by any of the following or their agencies:
- the Government of Canada;
- the government of another province or territory of Canada;
- a local public body;
- the government of a foreign country, or of a state, province or territory of a foreign country;
- an organization representing one or more governments; or
- an international organization of states.
Information provided by another government to a local public body
20(2)The head of a local public body shall refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal information provided, explicitly or implicitly, in confidence by
- a government, local public body, organization or agency described in subsection (1); or
- the Government of Manitoba or a government agency.
NOTE: Subsection 20(2) comes into force on proclamation.Exceptions
20(3)Subsections (1) and (2) do not apply if the government, local public body, organization or agency that provided the information
- consents to the disclosure; or
- makes the information public.
DIVISION 4
DISCRETIONARY EXCEPTIONS TO DISCLOSURE
RELATIONS BETWEEN MANITOBA AND OTHER GOVERNMENTS
Disclosure harmful to relations between Manitoba and other governments
21(1)The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to harm relations between the Government of Manitoba or a government agency and any of the following or their agencies:
- the Government of Canada;
- the government of another province or territory of Canada;
- a local public body;
- the government of a foreign country, or of a state, province or territory of a foreign country;
- an organization representing one or more governments; or
- an international organization of states.
Consent required for disclosure by local public body
21(2)When the request for access has been received by a local public body, the head of the local public body may disclose information referred to in subsection (1) only with the consent of the head of the department of the Government of Manitoba or government agency affected.
NOTE: Subsection 21(2) comes into force on proclamation.
LOCAL PUBLIC BODY CONFIDENCES
Local public body confidences
22(1)The head of a local public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal
- a draft of a resolution, by-law or other legal instrument by which the local public body acts; or
- the substance of deliberations of a meeting of its elected officials or of its governing body or a committee of its elected officials or governing body, if an enactment or a resolution, by-law or other legal instrument by which the local public body acts authorizes the holding of that meeting in the absence of the public.
Exceptions
22(2)Subsection (1) does not apply if
- the draft of the resolution, by-law or other legal instrument or the subject matter of the deliberations has been considered in a meeting open to the public; or
- the information referred to in subsection (1) is in a record that is more than 30 years old.
NOTE: Section 22 comes into force on proclamation.
ADVICE TO A PUBLIC BODY
The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal
- advice, opinions, proposals, recommendations, analyses or policy options developed by or for the public body or a minister;
- consultations or deliberations involving officers or employees of the public body or a minister;
- positions, plans, procedures, criteria or instructions developed for the purpose of contractual or other negotiations by or on behalf of the Government of Manitoba or the public body, or considerations that relate to those negotiations;
- plans relating to the management of personnel or the administration of the public body that have not yet been implemented;
- the content of draft legislation, regulations, and orders of ministers or the Lieutenant Governor in Council; or
- information, including the proposed plans, policies or projects of a public body, the disclosure of which could reasonably be expected to result in disclosure of a pending policy or budgetary decision.
Exceptions
23(2)Subsection (1) does not apply if the information
- is in a record that is more than 30 years old;
- is an instruction or guideline issued to officers or employees of the public body;
- is a substantive rule or statement of policy that has been adopted by the public body for the purpose of interpreting an enactment or administering a program or activity of the public body;
- is the result of a product or environmental test conducted by or for the public body;
- is a statement of the reasons for a decision made in the exercise of a quasi-judicial function or a discretionary power that affects the applicant;
- is the result of background research of a scientific or technical nature undertaken in connection with the formulation of a policy proposal;
- is a statistical survey; or
- is a final report or final audit on the performance or efficiency of the public body or of any of its programs or policies, except where the information is a report or appraisal of the performance of an individual who is or was an officer or employee of the public body.
Interpretation of "background research"
23(3)For the purpose of clause (2)(f), background research of a technical nature does not include economic or financial research undertaken in connection with the formulation of a tax policy or other economic policy of the public body.
INDIVIDUAL OR PUBLIC SAFETY
Disclosure harmful to individual or public safety
24The head of a public body may refuse to disclose to an applicant information, including personal information about the applicant, if disclosure could reasonably be expected to
- threaten or harm the mental or physical health or the safety of another person;
- result, in the opinion of a duly qualified physician, psychologist, or other appropriate expert, in serious harm to the applicant's mental or physical health or safety; or
- threaten public safety.
LAW ENFORCEMENT AND LEGAL PROCEEDINGS
Disclosure harmful to law enforcement or legal proceedings
25(1)The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to
- harm a law enforcement matter;
- prejudice the defence of Canada or of a foreign state allied to or associated with Canada or harm the detection, prevention or suppression of espionage, sabotage or terrorism;
- harm the effectiveness of investigative techniques and procedures currently used, or likely to be used, in law enforcement;
- interfere with the gathering of, or reveal criminal intelligence that has a reasonable connection with, the detection, prevention or suppression of organized criminal activities or of serious and repetitive criminal activities;
- endanger the life or safety of a law enforcement officer or any other person;
- deprive a person of the right to a fair trial or impartial adjudication;
- disclose a record that has been confiscated from a person by a peace officer in accordance with an enactment of Manitoba or Canada;
- facilitate the escape from custody of an individual who is lawfully detained;
- facilitate the commission of an unlawful act or interfere with the control of crime;
- disclose technical information relating to weapons or potential weapons;
- interfere with the proper custody or supervision of an individual who is lawfully detained;
- reveal information in a correctional record supplied, explicitly or implicitly, in confidence;
- expose to civil liability the author of a law enforcement record or a person who has been quoted or paraphrased in the record; or
- be injurious to the conduct of existing or anticipated legal proceedings.
No disclosure if offence
25(2)The head of a public body shall refuse to disclose information to an applicant if the information is in a law enforcement record and the disclosure is prohibited under an enactment of Canada.
Exceptions
25(3)Subsection (1) does not apply to
- a report, including statistical analysis, on the degree of success achieved by a law enforcement program, unless disclosure of the report could reasonably be expected to cause any harm or interference referred to in subsection (1); or
- a record that provides a general outline of the structure or programs of a law enforcement agency.
SECURITY OF PROPERTY
Disclosure harmful to security of property
26The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to harm or threaten the security of any property or system, including a building, a vehicle, an electronic information system or a communications system.
SOLICITOR-CLIENT PRIVILEGE
Solicitor-client privilege
27(1)The head of a public body may refuse to disclose to an applicant
- information that is subject to solicitor-client privilege;
- information prepared by or for an agent or lawyer of the Minister of Justice and Attorney-General or the public body in relation to a matter involving the provision of legal advice or legal services or in relation to the investigation or prosecution of an offence; or
- information in correspondence between an agent or lawyer of the Minister of Justice and Attorney-General or the public body and any other person in relation to a matter involving the provision of legal advice or legal services or in relation to the investigation or prosecution of an offence.
Third party's solicitor-client privilege
27(2)The head of a public body shall refuse to disclose to an applicant information that is subject to a solicitor-client privilege of a person other than the public body.
ECONOMIC AND OTHER INTERESTS OF A PUBLIC BODY
Disclosure harmful to economic and other interests of a public body
28(1)The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to harm the economic or financial interests or negotiating position of a public body or the Government of Manitoba, including the following information:
- a trade secret of a public body or the Government of Manitoba;
- financial, commercial, scientific, technical or other information in which a public body or the Government of Manitoba has a proprietary interest or right of use;
- information the disclosure of which could reasonably be expected to
a public body or the Government of Manitoba;
- result in financial loss to,
- prejudice the competitive position of, or
- interfere with or prejudice contractual or other negotiations of,
- innovative scientific or technical information obtained through research by an employee of a public body or the Government of Manitoba; or
- information the disclosure of which could reasonably be expected to result in an undue loss or benefit to a person, or premature disclosure of a pending policy decision, including but not limited to,
- a contemplated change in taxes or other source of revenue,
- a contemplated change in government borrowing,
- a contemplated change in the conditions of operation of a financial institution, stock exchange, or commodities exchange, or of any self-regulating association recognized by The Manitoba Securities Commission under an enactment of Manitoba, or
- a contemplated sale or purchase of securities, bonds or foreign or Canadian currency.
Exception
28(2)Subsection (1) does not apply to the results of a product or environmental test conducted by or for a public body, unless the test was done for the purpose of developing methods of testing or for the purpose of testing products for possible purchase.
S.M. 1998, c. 45, s. 10.
TESTING PROCEDURES, TESTS AND AUDITS
Testing procedures, tests and audits
29The head of a public body may refuse to disclose to an applicant information relating to
- testing or auditing procedures or techniques; or
- details of specific tests to be given or audits to be conducted;if disclosure could reasonably be expected to prejudice the use or results of particular tests or audits.
CONFIDENTIAL EVALUATIONS
Confidential evaluations about the applicant
30The head of a public body may refuse to disclose to an applicant personal information that has been provided in confidence, explicitly or implicitly, for purposes of determining the applicant's suitability, eligibility or qualifications for employment, or for the purpose of awarding a contract.
PRESERVATION OF HERITAGE RESOURCES AND LIFE FORMS
Disclosure harmful to preservation of heritage resources and life forms
31(1)The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to result in damage to or interfere with the preservation, protection or conservation of
- a heritage resource as defined in The Heritage Resources Act; or
- any rare, endangered, threatened or vulnerable life form, including plants, vertebrates and invertebrates.
Information re designation of sites
31(2)The head of a public body may refuse to disclose to an applicant information relating to a contemplated designation of a heritage site, a municipal heritage site or a heritage object under The Heritage Resources Act.
INFORMATION THAT IS OR WILL BE AVAILABLE TO THE PUBLIC
Information that is or will be available to the public
32(1)The head of a public body may refuse to disclose to an applicant information
- that is freely available to the public or is available for purchase by the public; or
- that will be made available to the public within 90 days after the applicant's request is received.
Notification when information becomes available
32(2)When the head of a public body has refused to disclose information under clause (1)(b), the head shall
- notify the applicant when the information becomes available; and
- if the information is not available to the public within 90 days after the applicant's request is received, reconsider the request as if it were a new request received on the last day of the 90 day period and not refuse access to the information under clause (1)(b).
DIVISION 5 THIRD PARTY INTERVENTION
When the head of a public body is considering giving access to a record the disclosure of which might
the head shall, where practicable and as soon as practicable, give written notice to the third party in accordance with subsection (3).
- result in an unreasonable invasion of a third party's privacy under section 17; or
- affect a third party's interests described in subsection 18(1) or (2);
Waiver of notice requirement
33(2)A third party is deemed to have waived the requirement for notice in subsection (1) in a case where the third party has consented to or requested the disclosure.
Content of notice
33(3)A notice under subsection (1) must
Further details of notice
- state that a request has been made for access to a record that may contain information the disclosure of which might invade the privacy or affect the interests of the third party;
- include a copy of the record or part of it containing the information in question or describe the contents of the record; and
- state that, within 20 days after the notice is given, the third party may, in writing, consent to the disclosure or make representations to the head of the public body explaining why the information should not be disclosed.
33(4)When notice is given under subsection (1), the head of the public body shall also give the applicant a notice stating that
Written representations
- the record requested by the applicant may contain information the disclosure of which might invade the privacy or affect the interests of a third party;
- the third party is being given an opportunity to make representations concerning disclosure; and
- a decision respecting disclosure will be made within 30 days after the day notice is given under subsection (1), unless the time limit for responding is extended under section 15.
33(5)Representations by a third party under this section must be made in writing unless the head permits them to be made orally.
Within 30 days after notice is given under subsection 33(1), the head of the public body shall decide whether or not to give access to the record or to part of the record, but no decision may be made before the earlier of
- 21 days after the notice is given; and
- the day a response is received from the third party.
Notice of decision
34(2)On reaching a decision under subsection (1), the head of the public body shall give written notice of the decision, including reasons for the decision, to the applicant and the third party.
Extended time limit
34(3)Subsection 15(1) applies with necessary modifications to the period set out in subsection (1).
Complaint about decision to give access
34(4)If the head of the public body decides to give access to the record or part of the record, the notice under subsection (2) must state that the applicant will be given access unless the third party makes a complaint to the Ombudsman under Part 5 within 21 days after the notice is given.
Complaint about decision to refuse access
34(5)If the head of the public body decides not to give access to the record or part of the record, the notice under subsection (2) must state that the applicant may make a complaint to the Ombudsman under Part 5 within 21 days after the notice is given.
PART 3
PROTECTION OF PRIVACY
DIVISION 1
APPLICATION OF THIS PART
DIVISION 2
COLLECTION, CORRECTION AND RETENTION OF PERSONAL INFORMATION
COLLECTION OF INFORMATION
Purpose of collection of information
36(1)No personal information may be collected by or for a public body unless
- collection of the information is authorized by or under an enactment of Manitoba or of Canada;
- the information relates directly to and is necessary for an existing program or activity of the public body; or
- the information is collected for law enforcement purposes or crime prevention.
Limit on amount of information collected
36(2)A public body shall collect only as much personal information about an individual as is reasonably necessary to accomplish the purpose for which it is collected.
Personal information must be collected by or for a public body directly from the individual the information is about unless
- another method of collection is authorized by that individual, or by an enactment of Manitoba or Canada;
- collection of the information directly from the individual could reasonably be expected to cause harm to the individual or to another person;
- collection of the information is in the interest of the individual and time or circumstances do not permit collection directly from the individual;
- collection of the information directly from the individual could reasonably be expected to result in inaccurate information being collected;
- the information may be disclosed to the public body under Division 3 of this Part;
- the information is collected for inclusion in a public registry;
- the information is collected for law enforcement purposes or crime prevention;
- the information is collected for the purpose of existing or anticipated legal proceedings to which the Government of Manitoba or the public body is a party;
- the information is collected for use in providing legal advice or legal services to the Government of Manitoba or the public body;
- the information concerns
- the history, release or supervision of an individual in the custody of or under the control or supervision of a correctional authority, or
- the security of a correctional institution;
- the information is collected for the purpose of enforcing a maintenance order under The Family Maintenance Act;
- the information is collected for the purpose of informing The Public Trustee or the Vulnerable Persons Commissioner about clients or potential clients;
- the information is collected for the purpose of
- determining the eligibility of an individual to participate in a program of or receive a benefit or service from the Government of Manitoba or the public body and is collected in the course of processing an application made by or on behalf of the individual the information is about, or
- verifying the eligibility of an individual who is participating in a program of or receiving a benefit or service from the Government of Manitoba or the public body;
- the information is collected for the purpose of
- determining the amount of or collecting a fine, debt, tax or payment owing to the Government of Manitoba or the public body, or an assignee of either of them, or
- making a payment;
- the information is collected for the purpose of managing or administering personnel of the Government of Manitoba or the public body;
- the information is collected for the purpose of auditing, monitoring or evaluating the activities of the Government of Manitoba or the public body; or
- the information is collected for the purpose of determining suitability for an honour or award, including an honourary degree, scholarship, prize or bursary.
Individual must be informed
37(2)A public body that collects personal information directly from the individual the information is about shall inform the individual of
- the purpose for which the information is collected;
- the legal authority for the collection; and
- the title, business address and telephone number of an officer or employee of the public body who can answer the individual's questions about the collection.
When notice not required
37(3)A public body need not comply with subsection (2) if it has recently provided the individual with the information referred to in that subsection about the collection of the same or similar personal information for the same or a related purpose.
ACCURACY OF INFORMATION
Accuracy of personal information
38If personal information about an individual will be used by a public body to make a decision that directly affects the individual, the public body shall take reasonable steps to ensure that the information is accurate and complete.
CORRECTION OF INFORMATION
Right to request correction
39(1)An applicant who has been given access to a record containing his or her personal information under Part 2 and who believes there is an error or omission in the information may request the head of the public body that has the information in its custody or under its control to correct the information.
Written request
39(2)A request must be in writing.
Head's response
39(3)Within 30 days after receiving a request under subsection (1), the head of the public body shall
- make the requested correction and notify the applicant of the correction; or
- notify the applicant of the head's refusal to correct the record and the reason for the refusal, that the request for correction has been added to the record, and that the individual has a right to make a complaint about the refusal under Part 5.
Extended time limit
39(4)Subsection 15(1) applies with necessary modifications to the period set out in subsection (3).
Notice to others
39(5)On correcting a record or adding a request for correction to a record under this section, the head of the public body shall, where practicable, notify any other public body or third party to whom the information has been disclosed during the year before the correction was requested that the correction has been made or a request for correction has been added.
Correction required
39(6)On being notified under subsection (5) of a correction or request for correction, a public body must make the correction or add the request for correction to any record of that information in its custody or under its control.
RETENTION OF INFORMATION
Retention of personal information
40(1)A public body that uses personal information about an individual to make a decision that directly affects the individual shall, in the absence of another legal requirement to do so, establish and comply with a written policy concerning the retention of the personal information.
Content of retention policy
40(2)A policy under subsection (1) must
- require that personal information be retained for a reasonable period of time so that the individual the information is about has a reasonable opportunity to obtain access to it; and
- comply with any additional requirements set out in the regulations.
Protection of personal information
41The head of a public body shall, in accordance with any requirements set out in the regulations, protect personal information by making reasonable security arrangements against such risks as unauthorized access, use, disclosure or destruction.
DIVISION 3
RESTRICTIONS ON USE AND DISCLOSURE OF PERSONAL INFORMATION
GENERAL DUTIES OF PUBLIC BODIES
General duty of public bodies
42(1)A public body shall not use or disclose personal information except as authorized under this Division.
Limit on amount of information used or disclosed
42(2)Every use and disclosure by a public body of personal information must be limited to the minimum amount of information necessary to accomplish the purpose for which it is used or disclosed.
Limit on employees
42(3)A public body shall limit the use and disclosure of personal information in its custody or under its control to those of its employees or agents who need to know the information to carry out the purpose for which the information was collected or received or to carry out a purpose authorized under section 43.
RESTRICTIONS ON USE OF INFORMATION
Use of personal information
43A public body may use personal information only
- for the purpose for which the information was collected or compiled under subsection 36(1) or for a use consistent with that purpose under section 45;
- if the individual the information is about has consented to the use; or
- for a purpose for which that information may be disclosed to the public body under section 44, 46, 47 or 48 or for a use approved under section 46.
RESTRICTIONS ON DISCLOSURE OF INFORMATION
Disclosure of personal information
44(1)A public body may disclose personal information only
- for the purpose for which the information was collected or compiled under subsection 36(1) or for a use consistent with that purpose under section 45;
- if the individual the information is about has consented to its disclosure;
- in accordance with Part 2;
- for the purpose of complying with an enactment of Manitoba or Canada, or with a treaty, arrangement or agreement entered into under an enactment of Manitoba or Canada;
- in accordance with an enactment of Manitoba or Canada that authorizes or requires the disclosure;
- to a minister or an elected official of the public body, if the information is necessary to carry out his or her responsibilities;
- for the purpose of managing or administering personnel of the Government of Manitoba or the public body;
- to the Provincial Auditor or any other person or body for audit purposes;
- to the Government of Canada in order to facilitate the monitoring, evaluation or auditing of shared cost programs or services;
- for the purpose of determining or verifying an individual's suitability or eligibility for a program, service or benefit;
- for the purpose of enforcing a maintenance order under The Family Maintenance Act;
- where necessary to protect the mental or physical health or the safety of any individual or group of individuals;
- for the purpose of complying with a subpoena, warrant or order issued or made by a court, person or body with jurisdiction to compel the production of information or with a rule of court that relates to the production of information;
- for use in providing legal advice or legal services to the Government of Manitoba or the public body;
- for the purpose of enforcing a legal right that the Government of Manitoba or the public body has against any person;
- for the purpose of
- determining the amount of or collecting a fine, debt, tax or payment owing by an individual to the Government of Manitoba or to the public body, or to an assignee of either of them, or
- making a payment;
- for use in existing or anticipated legal proceedings to which the Government of Manitoba or the public body is a party;
- for law enforcement purposes or crime prevention;
- if the public body is a law enforcement agency and the information is disclosed to
- another law enforcement agency in Canada, or
- a law enforcement agency in a foreign country under an arrangement, written agreement, treaty or legislative authority;
- for the purpose of supervising an individual in the custody of or under the control or supervision of a correctional authority;
- where disclosure is necessary for the security of a correctional institution;
- by transfer to the Provincial Archives of Manitoba or to the archives of the public body for records management or archival purposes;
- to an officer of the Legislature, if the information is necessary for the performance of the duties of that officer;
- to an expert for the purposes of clause 24(b);
- for the purpose of
- contacting a relative or friend of an individual who is injured, incapacitated or ill,
- assisting in identifying a deceased individual, or
- informing the representative or a relative of a deceased individual, or any other person it is reasonable to inform in the circumstances, of the individual's death;
- to a relative of a deceased individual if the head of the public body reasonably believes that disclosure is not an unreasonable invasion of the deceased's privacy;
- subject to subsection (2), to a person providing information technology services to or for the public body;
- when the information is available to the public; or
- in accordance with sections 46, 47 or 48.
Agreement for information technology services
44(2)When a public body intends to disclose personal information to a provider of information technology services under clause (1)(aa), the public body shall enter into a written agreement with the provider for the protection of the personal information against such risks as unauthorized access, use, disclosure or destruction.
For the purpose of clauses 43(a) and 44(1)(a), a use or disclosure of personal information is consistent with the purpose for which the information was collected or compiled if the use or disclosure
- has a reasonable and direct connection to that purpose; and
- is necessary for performing the statutory duties of, or for operating an authorized program or carrying out an activity of, the public body that uses or discloses the information.
This section applies only to uses and disclosures not otherwise authorized under this Division.
Assessment required for other uses and disclosures
46(2)When a public body
the personal information may be used or disclosed only if an approval is given by the head of the public body under this section.
- proposes to use or disclose personal information in order to link information databases or match personal information in one information database with information in another; or
- receives a request for disclosure on a volume or bulk basis of personal information in a public registry or another collection of personal information;
Government must refer to review committee
46(3)If a proposal or request is made under subsection (2) by or to a department or a government agency, the head must refer it to the review committee for its advice.
Local public body may refer to review committee
46(4)If a proposal or request is made under subsection (2) by or to a local public body, the head may refer it to the review committee for its advice.
NOTE: Subsection 46(4) comes into force on proclamation.
Review committee to provide advice
46(5)The review committee shall assess a proposal or request referred to it under this section and provide advice to the head of the public body about the matters referred to in subsection (6).
Conditions of approval
46(6)The head may approve the proposal or request only if
- any advice that was requested from the review committee has been received and considered;
- the head is satisfied that
- the purpose of the proposal or request cannot reasonably be accomplished unless the personal information is provided in a form that identifies individuals,
- it is unreasonable or impractical to obtain consent from the individuals the personal information is about, and
- the use or disclosure is not likely to harm the individuals the personal information is about and the benefits to be derived from the use or disclosure are clearly in the public interest;
- the head has approved conditions relating to
- the use of the personal information,
- the protection of the personal information, including security and confidentiality,
- the removal or destruction of individual identifiers at the earliest reasonable time, where appropriate, and
- any subsequent use or disclosure of the personal information in a form that identifies individuals without the express written authorization of the public body; and
- the recipient of the personal information has entered into a written agreement to comply with the approved conditions.
Disclosure for research purposes
47(1)A public body may disclose personal information for a research purpose only in accordance with this section.
Referral to review committee
47(2)The head of a public body that receives a request for disclosure of personal information for a research purpose may refer the request to the review committee for its advice.
Review committee to provide advice
47(3)The review committee shall assess the request and provide advice to the head of the public body about the matters referred to in subsection (4).
Conditions of disclosure
47(4)The head of the public body may disclose personal information for a research purpose only if
- any advice that was requested from the review committee has been received and considered;
- the head is satisfied that
- the personal information is requested for a bona fide research purpose,
- the research purpose cannot reasonably be accomplished unless the personal information is provided in a form that identifies individuals,
- it is unreasonable or impractical for the person proposing the research to obtain consent from the individuals the personal information is about, and
- disclosure of the personal information, and any information linkage, is not likely to harm the individuals the information is about and the benefits to be derived from the research and any information linkage are clearly in the public interest;
- the head of the public body has approved conditions relating to
- the protection of the personal information, including use, security and confidentiality,
- the removal or destruction of individual identifiers at the earliest reasonable time, and
- the prohibition of any subsequent use or disclosure of the personal information in a form that identifies individuals without the express written authorization of the public body; and
- the person to whom the personal information is disclosed has entered into a written agreement to comply with the approved conditions.
Disclosure of records more than 100 years old
48The head of a public body or the archives of a public body may disclose personal information in a record that is more than 100 years old.
PART
4
POWERS AND DUTIES OF THE OMBUDSMAN
In addition to the Ombudsman's powers and duties under Part 5 respecting complaints, the Ombudsman may
- conduct investigations and audits and make recommendations to monitor and ensure compliance
NOTE: Subclause (a)(ii) comes into force on proclamation.
- with this Act and the regulations, and
- with requirements respecting the security and destruction of records set out in any other enactment or in a by-law or other legal instrument by which a local public body acts;
- inform the public about this Act;
- receive comments from the public about the administration of this Act;
- comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies;
- 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;
- bring to the attention of the head of a public body any failure to fulfil the duty to assist applicants;
- recommend to a public body, after giving the head an opportunity to make representations, that the public body
- cease or modify a specified practice of collecting, using or disclosing information that contravenes this Act, or
- destroy a collection of personal information that was not collected in accordance with this Act;
- make recommendations to the head of a public body or the responsible minister about the administration of this Act;
- consult with any person with experience or expertise in any matter related to the purposes of this Act; and
- engage in or commission research into anything affecting the achievement of the purposes of this Act.
The Ombudsman has all the powers and protections of a commissioner under Part V of The Manitoba Evidence Act when conducting an investigation under this Act.
Production of records
50(2)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.
Records to be produced within 14 days
50(3)A public body shall produce to the Ombudsman within 14 days any record or a copy of a record required under this section, despite any other enactment or any privilege of the law of evidence.
Examination of record on site
50(4)If a public body is required to produce a record under this section and it is not practicable to make a copy of it, the head of the public body may require the Ombudsman to examine the original at its site.
Despite any other enactment or any privilege of the law of evidence, in exercising powers or performing duties under this Act, 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 converse in private with any officer or employee of a public body.
The Ombudsman shall conduct every investigation in private.
Statements and reports not admissible in evidence
53(1)A statement made or an answer given by a person during an investigation by the Ombudsman, and a report or recommendation of the Ombudsman, is inadmissible in evidence in a court or in any other proceeding, except
- in a prosecution for perjury in respect of sworn testimony;
- in a prosecution for an offence under this Act; or
- in an appeal to the court under this Act, when the Ombudsman is a party.
Not compellable as witness
53(2)The Ombudsman, and anyone acting for or under the direction of the Ombudsman, shall not be required to give evidence in a court or in any other proceeding about information that comes to the knowledge of the Ombudsman in performing duties or exercising powers under this Act.
Information provided under qualified privilege
54Anything said, any information supplied, and any record produced by a person during an investigation by the Ombudsman under this Act is privileged in the same manner as if it were said, supplied or produced in a proceeding in a court.
Ombudsman restricted as to disclosure of information
55(1)The Ombudsman, and anyone acting for or under the direction of the Ombudsman, shall not disclose information obtained in performing duties or exercising powers under this Act, except as provided in subsections (2) to (5).
When disclosure permitted
55(2)The Ombudsman may disclose, or may authorize anyone acting for or under the direction of the Ombudsman to disclose, information that is necessary to
- perform a duty or exercise a power of the Ombudsman under this Act; or
- establish the grounds for findings and recommendations contained in a report under this Act.
Reasonable precautions to avoid disclosure
55(3)In conducting an investigation and in performing any other duty or exercising any power under this Act, the Ombudsman, and anyone acting for or under the direction of the Ombudsman, shall take every reasonable precaution to avoid disclosing and shall not disclose
- any information the head of a public body is authorized or required to refuse to disclose under Part 2; or
- whether information exists, if the head of a public body is authorized to refuse to confirm or deny that the information exists under subsection 12(2).
Information about offences
55(4)The Ombudsman may disclose to the Minister of Justice and Attorney General information relating to the commission of an offence under this or any other enactment of Manitoba or Canada if the Ombudsman considers there is reason to believe an offence has been committed.
Information relating to a prosecution or appeal
55(5)The Ombudsman may disclose, or may authorize anyone acting for or under the direction of the Ombudsman to disclose, information in the course of a prosecution or an appeal referred to in subsection 53(1).
The Ombudsman may delegate to any person on his or her staff any duty or power under this Act.
No proceedings lie against the Ombudsman, or against any person acting for or under the direction of the Ombudsman, 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 this Act.
The Ombudsman shall make an annual report to the Legislative Assembly on
- the work of the Ombudsman's office in relation to this Act;
- the Ombudsman's recommendations and whether public bodies have complied with the recommendations;
- any complaints or investigations resulting from a decision, act or failure to act; and
- any other matters about access to information and protection of privacy that the Ombudsman considers appropriate.
Report to be laid before Legislative Assembly
58(2)The report shall be given to the Speaker who shall lay it before the Legislative Assembly if it is in session and if it is not in session, then within 15 days after the beginning of the next session.
Special report
58(3)In the public interest, the Ombudsman may publish a special report relating to any matter within the scope of the powers and duties of the Ombudsman under this Act, including a report referring to and commenting on any particular matter investigated by the Ombudsman.
PART
5
COMPLAINTS
MAKING A COMPLAINT
Right to make a complaint about access
59(1)A person who has requested access to a record under Part 2 of this Act may make a complaint to the Ombudsman about any decision, act or failure to act of the head that relates to the request, including a refusal to make a correction under section 39.
Complaint by a third party about access
59(2)A third party notified under section 33 of a decision by the head of a public body to give access may make a complaint to the Ombudsman about the decision.
Complaint about privacy
59(3)An individual who believes that his or her own personal information has been collected, used or disclosed in violation of Part 3 may make a complaint to the Ombudsman.
Complaint by relative of deceased
59(4)A relative of a deceased individual may make a complaint to the Ombudsman about a decision of a head of a public body not to disclose personal information under clause 44(1)(z).
Ombudsman may initiate a complaint
59(5)The Ombudsman may initiate a complaint respecting any matter about which the Ombudsman is satisfied there are reasonable grounds to investigate under this Act.
A complaint to the Ombudsman must be in the prescribed form.
60-day time limit
60(2)A complaint under subsection 59(1) or (4) must be delivered to the Ombudsman within 60 days after the person complaining is notified of the decision, unless the complaint relates to a decision under subsection 34(5).
120-day time limit for failure to respond
60(3)If the head of a public body fails to respond in time to a request for access to a record, the failure is to be treated as a decision to refuse access, in which case the complaint must be delivered to the Ombudsman within 120 days after the request for access was made.
Notifying others of a complaint
61As soon as practicable after receiving a complaint, the Ombudsman shall notify the head of the public body concerned and any other person who, in the Ombudsman's opinion, is affected by it.
INVESTIGATION
Subject to section 63, on receiving a complaint the Ombudsman shall investigate it.
Informal resolution
62(2)The Ombudsman may take any steps the Ombudsman considers appropriate to resolve a complaint informally to the satisfaction of the parties and in a manner consistent with the purposes of this Act.
Decision to not deal with a complaint
63(1)The Ombudsman may decide not to investigate a complaint if the Ombudsman is of the opinion that,
- in the case of a complaint about privacy referred to in subsection 59(3), the length of time that has elapsed since the date the subject matter of the complaint arose makes an investigation 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; or
- the circumstances of the complaint do not require investigation.
Notifying the complainant
63(2)The Ombudsman shall inform the complainant and the head of the public body in writing if he or she decides not to investigate a complaint, and give reasons for the decision.
Representations to the Ombudsman
64(1)During an investigation, the Ombudsman shall give the complainant and the head of the public body concerned an opportunity to make representations to the Ombudsman. The Ombudsman may also give any other person who has been notified of the complaint under section 61 an opportunity to make representations. However, no one is entitled to be present during an investigation or to have access to or to comment on representations made to the Ombudsman by another person.
Written or oral representations
64(2)The Ombudsman may decide whether representations are to be made orally or in writing.
Representations by counsel
64(3)Representations may be made to the Ombudsman through counsel or an agent.
90-day time limit for investigation
65An investigation must be completed and a report made under section 66 within 90 days after a complaint is made, unless the Ombudsman
- notifies the complainant, the head of the public body and any other person who has made representations to the Ombudsman that the Ombudsman is extending that period; and
- gives an anticipated date for providing the report.
OMBUDSMAN'S REPORT ABOUT A COMPLAINT
On completing an investigation of a complaint, the Ombudsman shall prepare a report containing the Ombudsman's findings about the complaint and any recommendations the Ombudsman considers appropriate respecting the complaint.
Report sent to complainant and others
66(2)The Ombudsman
- shall give a copy of the report tothe complainant and the head of the public body concerned; and
- may give a copy of the report to any other person who has made representations to the Ombudsman.
Notice of right to appeal
66(3)If the Ombudsman finds that a complaint
is unjustified, the report must include a notice to the complainant of the right to appeal the decision to the court under section 67, and of the time limit for an appeal.
- relating to the refusal of access to a record or part of a record; or
- by a third party notified under section 33 of a decision by the head of a public body to give access;
Head's response to the report
66(4)If the report contains recommendations, the head of the public body shall, within 15 days after receiving the report, send the Ombudsman a written response indicating
- that the head accepts the recommendations and describingany action the head has taken or proposes to take to implement them; or
- the reasons why the head refuses to take action to implement the recommendations.
Notice to the complainant
66(5)The Ombudsman shall notify the complainant about the head's response without delay. In the case of a response that indicates a refusal to take action on any of the Ombudsman's recommendations, the Ombudsman shall also, if the complainant has been refused access to a record or part of a record or is a third party notified under section 33 of a decision by the head of a public body to give access, inform the complainant
- that he or she may appeal the decision to the court under section 67 and of the time limit for an appeal; and
- if the Ombudsman so chooses, that the Ombudsman intends to appeal the decision to the court under section 68.
Compliance with recommendations
66(6)When the head of a public body accepts the recommendations in a report, the head shall comply with the recommendations
or within such additional period as the Ombudsman considers reasonable.
- within 15 days of acceptance, if the complaint is about access under subsection 59(1), (2) or (4); and
- within 45 days in any other case;
APPEAL TO COURT
A person who
may appeal the decision to the court.
- has been refused access to a record or part of a record requested under subsection 8(1); or
- is a third party notified under section 33 of a decision by the head of a public body to give access;
Appeal only if complaint has been made
67(2)An appeal may be made under subsection (1) only if the person has made a complaint to the Ombudsman about the decision and the Ombudsman has provided a report under section 66.
Appeal within 30 days
67(3)An appeal may be made by filing an application with the court within 30 days after the person receives the Ombudsman's report under subsection 66(2) or a notice under subsection 66(5), or within such longer period as the court may allow in special circumstances.
Head to be named as respondent
67(4)The application must name the head of the public body involved in the complaint as the respondent.
Appeal served on head and others
67(5)The person appealing shall, within 15 days of filing the application, serve a copy of it on
- the head of the public body;
- the Ombudsman; and
- in the case of an appeal by a third party notified under section 33 of a decision to give access to a record, on the person requesting access.
The Ombudsman may appeal a decision described in subsection 67(1) to the court within the time limit set by subsection 67(3), if the Ombudsman has obtained the consent of the person who has the right of appeal.
Ombudsman may intervene
68(2)The Ombudsman has a right to intervene as a party to an appeal under section 67.
Conditions for appeal or intervention
68(3)The Ombudsman may appeal a decision or intervene as a party to an appeal only if the Ombudsman is of the opinion that the decision raises a significant issue of statutory interpretation or that an appeal is otherwise clearly in the public interest.
Appeal served on head and others
68(4)The Ombudsman shall, within 15 days after filing an application for appeal, serve a copy of it on
- the head of the public body; and
- the person requesting access to the record if he or she is not the person who gave consent under subsection (1).
The court shall consider an appeal under section 67 or 68 as a new matter and may hear evidence by affidavit.
If an appeal under section 67 or 68 relates to a decision to refuse an applicant access to all or part of a record, it is up to the head of the public body to prove that the applicant has no right of access to the record or part of the record.
Burden of proof: personal information
70(2)Despite subsection (1), if the appeal relates to a decision to give or refuse to give access to a record or part of a record containing personal information about a third party, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's privacy.
Burden of proof: non-personal information
70(3)If the appeal relates to a decision to give access to all or part of a record containing information that is not personal information about a third party, it is up to the third party to prove that the applicant has no right of access to the record or part of the record.
Court may order production of records
71Despite any other enactment or any privilege of the law of evidence, for the purpose of an appeal under section 67 or 68 the court may order production of any record in the custody or under the control of a public body for examination by the court.
Court to take precautions against disclosing
72On an appeal under section 67 or 68, the court shall take every reasonable precaution, including receiving representations ex parte, conducting hearings in private and examining records in private, to avoid disclosure
- of anyinformation the head of a public body is authorized or required to refuse to disclose under Part 2; or
- as towhether information exists, if the head of a public body is authorized to refuse to confirm or deny that the information exists under subsection 12(2).
Powers of court on appeal
73(1)On hearing an appeal under section 67 or 68, the court may,
- if it determines that the head of the public body is authorized or required to refuse access to a record under Part 2, dismiss the appeal; or
- if it determines that the head is not authorized or required to refuse access to all or part of a record under Part 2,
- order the head of the public body to give the applicant access to all or part of the record, and
- make any other order that the court considers appropriate.
Order of court where record contains excepted information
73(2)If the court finds that a record or part of a record falls within an exception to disclosure under Part 2, the court shall not order the head to give the applicant access to that record or part of it, regardless of whether the exception requires or merely authorizes the head to refuse access.
A decision of the court under section 73 is final and binding and there is no appeal from it.
PART
6
GENERAL PROVISIONS
The responsible minister shall
- prepare a directory to assist in identifying and locating records in the custody or under the control of public bodies;
- make every reasonable effort to ensure that the directory is kept up to date;
- ensure that copies of the directory are made available to public bodies; and
- ensure that copies of the directory are available to the public through libraries and electronic information networks.
Contents of directory
75(2)The directory must include
- a description of the mandates, functions and organization of each public body;
- a description of records, including personal information banks, in the custody or under the control of each public body; and
- the title, business address and business telephone number of an officer or employee of each public body who may be contacted for information about this Act.
Personal information banks
75(3)The description of a personal information bank required under clause (2)(b) must include the following:
- the name of the personal information bank;
- a description of the kind of information in the personal information bank and of the categories of individuals whom the information is about;
- the authority and purposes for collecting the information;
- the purposes for which the information is used or disclosed; and
- the categories of persons who use the information or to whom it is disclosed.
Disclosure for non-declared purpose
75(4)If personal information is used or disclosed by a public body for a purpose that is not included in the directory under subsection (1), the head of the public body shall
- keep a record of the use or disclosure and either attach or link that record to the personal information; and
- notify the responsible minister of the use or disclosure for inclusion in the directory.
Application of this section to local public bodies
75(5)Clauses (3)(d) and (e) and subsection (4) do not apply to local public bodies. However, the head of a local public body shall maintain an up-to-date list of the purposes for which information in a personal information bank in the custody or under the control of the local public body is used or disclosed, and make the list available to the public.
NOTE: Subsection 75(5) comes into force on proclamation.
Public bodies to provide information
75(6)The head of a public body shall provide to the responsible minister any information that the minister requires to prepare the directory and ensure that it is kept up to date.
Records available without an application
76(1)The head of a public body may specify records or categories of records that are in the custody or under the control of the public body and that are available to the public without an application for access under this Act.
Fee
76(2)The head of a public body may require a person who asks for a copy of a record available under subsection (1) to pay a fee to the public body, unless such a record can otherwise be accessed without a fee.
Privacy Assessment Review Committee
77In accordance with the regulations, the responsible minister shall establish a Privacy Assessment Review Committee for the purposes of sections 46 and 47.
Giving notice under this Act
78When this Act requires a notice or document to be given to a person, it is to be given
- by sending it to that person by prepaid mail to the person's last known address;
- by personal service;
- by substitutional service if so authorized by the Ombudsman; or
- by electronic transmission or telephone transmission of a facsimile of a copy of the notice or document.
Exercising rights of another person
79Any right or power conferred on an individual by this Act may be exercised
- by any person with written authorization from the individual to act on the individual's behalf;
- by a committee appointed for the individual under The Mental Health Act or a substitute decision maker appointed for the individual under The Vulnerable Persons Living with a Mental Disability Act, if the exercise of the right or power relates to the powers and duties of the committee or substitute decision maker;
- by an attorney acting under a power of attorney granted by the individual, if the exercise of the right or power relates to the powers and duties conferred by the power of attorney;
- by the parent or guardian of a minor when, in the opinion of the head of the public body concerned, the exercise of the right or power by the parent or guardian would not constitute an unreasonable invasion of the minor's privacy; or
- if the individual is deceased, by the individual's personal representative if the exercise of the right or power relates to the administration of the individual's estate.
Designation of head by local public body
80A local public body shall, by by-law or resolution, designate a person or group of persons as the head of the local public body for the purposes of this Act.
NOTE: Section 80 comes into force on proclamation.
Delegation by the head of a public body
81The head of a public body may delegate to any person on the staff of the public body any duty or power of the head under this Act.
The head of a public body may require an applicant to pay to the public body fees for making an application, and for search, preparation, copying and delivery services as provided for in the regulations.
Estimate of fees
82(2)If an applicant is required to pay fees under subsection (1) other than an application fee, the head of a public body shall give the applicant an estimate of the total fee before providing the services.
Acceptance of estimate within 30 days
82(3)The applicant has up to 30 days from the day the estimate is given to indicate if it is accepted or to modify the request in order to change the amount of the fees, after which the application is considered abandoned.
Effect of estimate on time limits
82(4)When an estimate is given to an applicant under this section, the time within which the head is required to respond under subsection 11(1) is suspended until the applicant notifies the head that the applicant wishes to proceed with the application.
Waiver of fees
82(5)The head of a public body may waive the payment of all or part of a fee in accordance with the regulations.
Fee not to exceed actual cost
82(6)The search, preparation, copying and delivery fees referred to in subsection (1) must not exceed the actual costs of the services.
Annual report of responsible minister
83(1)The responsible minister shall prepare an annual report and lay a copy of it before the Legislative Assembly if it is in session and, if it is not, within 15 days after the beginning of the next session.
Contents of report
83(2)The report under subsection (1) shall include information as to
- the number of requests for access that have been made, granted or denied;
- the specific provisions of this Act upon which refusals of access have been based;
- the number of applications to correct personal information that have been made;
- the requests and proposals approved by the head of each public body under sections 46 and 47; and
- the fees charged for access to records.
No action lies and no proceeding may be brought against the Government of Manitoba, a public body, the head of a public body, an elected official of a local public body or any person acting for or under the direction of the head of a public body for damages resulting from
- the disclosure of or failure to disclose, in good faith, all or part of a record or information under this Act or any consequences of that disclosure or failure to disclose; or
- the failure to give a notice required by this Act if reasonable care is taken to give the required notice.
Any person who wilfully
is guilty of an offence and liable on summary conviction to a fine of not more than $50,000.
- discloses personal information in contravention of Part 3 of this Act;
- makes a false statement to, or misleads or attempts to mislead, the Ombudsman or another person in performing duties or exercising powers under this Act;
- obstructs the Ombudsman or another person in performing duties or exercising powers under this Act; or
- destroys a record or erases information in a record that is subject to this Act with the intent to evade a request for access to records;
Prosecution within two years
85(2)A prosecution under this Act may be commenced not later than two years after the commission of the alleged offence.
Defence under other enactments
86(1)No person is guilty of an offence under any other enactment by reason of complying 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 this Act.
No adverse employment action
86(2)A public body or a person acting on behalf of a public body shall not take any adverse 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 this Act.
The Lieutenant Governor in Council may make regulations
- designating a person or group of persons as the head of a public body for the purpose of clause (d) of the definition "head" in section 1;
- designating agencies, boards, commissions, corporations, offices, associations or other bodies as educational bodies, government agencies, health care bodies or local government bodies;
- designating public registries for the purpose of the definition "public registry" in section 1;
- respecting fees to be paid under this Act and providing for circumstances in which fees may be waived in whole or in part;
- respecting forms for the purposes of this Act;
- respecting procedures to be followed in making, transferring, and responding to requests under Part 2 of this Act;
- for the purpose of clause 40(2)(b), governing policies of public bodies concerning retention periods for personal information and respecting the destruction of personal information;
- respecting the giving of consents by individuals under this Act;
- respecting written agreements for the purposes of sections 44, 46 and 47;
- respecting standards for and requiring administrative, technical and physical safeguards to ensure the security and confidentiality of records and personal information in the custody or under the control of public bodies;
- respecting the appointment of members of the review committee established under section 77 and governing the duties and functions of the review committee and all related matters;
- respecting the kind of information that public bodies must provide to the responsible minister, including information the minister requires for preparing the directory under section 75 or the annual report under section 83;
- providing that other enactments of Manitoba, or any provisions of them, prevail despite this Act;
- defining any word or expression used in this Act but not defined in this Act;
- respecting any other matter the Lieutenant Governor in Council considers necessary or advisable to carry out the intent of this Act.
PART 7
CONSEQUENTIAL, REVIEW, REPEAL AND COMING INTO FORCE
CONSEQUENTIAL AMENDMENTS
REVIEW
Within five years after section 7 comes into force, the minister shall undertake a comprehensive review of the operation of this Act that involves public representations and shall, within one year after the review is undertaken or within such further time as the Legislative Assembly may allow, submit a report on the review to the Assembly.
REPEAL AND C.C.S.M. REFERENCE
This Act may be cited as The Freedom of Information and Protection of Privacy Act and referred to as chapter F175 of the Continuing Consolidation of the Statutes of Manitoba.
COMING INTO FORCE
Coming into force of Act
101(1)Except as provided in subsection (3), this Act comes into force on a day fixed by proclamation.
Coming into force for local public bodies
101(2)The proclamation of clause (d) of the definition "head" in section 1, clause (e) of the definition "public body" in section 1, and sections 4(f), 20(2), 21(2), 22, 46(4), 49(a)(ii), 75(5) and 80, or any portion of them, may relate to all or any of the following categories of local public bodies:
- educational bodies;
- health care bodies;
- local government bodies.
Coming into force for The City of Winnipeg
101(2.1)If a proclamation under subsection (2) relates to local government bodies, the proclamation may be made applicable to The City of Winnipeg at an earlier date than to other local government bodies.
Coming into force of Division 1 of Parts 2 and 3
101(3)If The Personal Health Information Act is not in force on the day this Act is proclaimed, Division 1 of Part 2 and Division 1 of Part 3 do not come into force on the proclamation of this Act but instead come into force on the day The Personal Health Information Act comes into force.
S.M. 1998, c. 45, s. 10.
NOTE: S.M. 1997, c. 50, except clause (d) of the definition "head" in section 1, clause (e) of the definition "public body" in section 1, and sections 4(f), 20(2), 21(2), 22, 46(4), 49(a)(ii), 75(5) and 80, was proclaimed in force May 4, 1998. The provisions enumerated above were proclaimed in force in relation to The City of Winnipeg August 31, 1998.