Offences and liability

Offences

s.61 FIPPA / s.48 MFIPPA

Certain violations of the Freedom of Information and Protection of Privacy Act (FIPPA) / Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) are considered to be offences. The Act sets out the penalties for these offences and stipulates, when the consent of the Attorney General is required for prosecutions.

It is an offence to intentionally and knowingly disclose personal information in a manner that is not authorized by s.61(1)(a) FIPPA / s.48(1)(a) MFIPPA.

It is also an offence to maintain a secret personal information bank that is not described and made public as required under s.44 FIPPA / s.34 MFIPPA. An employee of an institution who deliberately withholds information about the existence of a personal information bank with the intention that the bank's existence not be published, runs the risk of being prosecuted under s.61(1)(b) FIPPA / s.48(1)(b) MFIPPA.

Making a request for access to or correction of personal information under false pretences is also an offence under s.61(1)(c) FIPPA / s.48(1)(c) MFIPPA.

Other offences relate to obstructing the performance of the Commissioner in his/her duties, or willfully misleading the IPC, or willfully failing to comply with an order of the IPC (s.61(1)(d), (e) and (f) FIPPA / s.48(1)(d), (e) and (f) MFIPPA). A prosecution cannot be started under these subsections without the consent of the Attorney General (s.61(3) FIPPA / s.48(3) MFIPPA).
A person who is found guilty of an offence is liable to a fine not exceeding $5,000.

Liability

s.62(2), (3) and (4) FIPPA / s.49(2), (3) MFIPPA

Civil actions cannot be brought against an employee of an institution for monetary damages resulting from the disclosure or non-disclosure of a record under the Act, if the action was done in good faith. No civil action can be brought against an employee for failure to give a required notice under the Act if reasonable care was taken to give notice. A record should be kept of the steps taken to provide the notice.

Institutions, as opposed to individual employees, are nonetheless liable to civil proceedings for damages resulting from violations of the freedom of information and privacy legislation (s.62(3), (4) FIPPA / s.49(3) MFIPPA).

Appendix I: Sample by-law

The Corporation of the [insert name]

By-law No. 98-00

Being a By-law to designate a head of the Municipal Corporation for the purposes of the Municipal Freedom of Information and Protection of Privacy Act.

Whereas, under Section 3, subsection 1 of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M.56, the council of a municipal corporation may by by-law designate from among its members an individual or a committee of the council to act as head of the municipal corporation for the purposes of the Act:

And, whereas the council deems it necessary and expedient to designate a head for the purposes of the Act:

Now therefore the council of the corporation of the [insert name] enacts as follows: 

Read a first and second time this [ ] day of [ ], 19[ ].

[Clerk] [head of Council]

Read a third time and passed this [ ] day of [ ], 19[ ].

[Clerk] [head of council]

[seal of the municipal corporation]

1. That [name/position of member of council or committee of council] be designated as head for the purposes of the Municipal Freedom of Information and Protection of Privacy Act.
2. That this by-law come into force and effect on [insert date here].

Appendix II: Sample Resolution

Resolution

For a board, Commission or other body

Moved by:

Seconded by:

Whereas, under Section 3, subsection (2) of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990 c.M.56 the members elected or appointed to a board, commission or other body that is an institution under the Act may designate in writing from among its members an individual or committee of the body to act as head of the institution for the purposes of the Act:
And whereas the [board, commission or other body] deems it necessary and expedient to designate a head for the purposes of the Act:
Now, therefore, the [board, commission or other body] resolves as follows:

1. That the [board, commission or other body] hereby designates [name/position of individual or committee] as head for the purposes of the Municipal Freedom of Information and Protection of Privacy Act.
2. That this resolution come into force and effect on [insert date here].

[SECRETARY] [CHAIRPERSON]

Appendix III: Sample delegations of authority

Sample 1

I/we, [head of the institution for the purposes of the Act], delegate the following powers and duties under the [Municipal] Freedom of Information and Protection of Privacy Act to the positions indicated below:

Date [ ]

Signature(s) [ ]

Sample 2

I/we [head of the institution for the purposes of the Act], delegate all powers and duties under the [Municipal] Freedom of Information and Protection of Privacy Act to [position title].

Date [ ]

Signature(s) [ ]

Appendix IV: Sample notification letters

#1 Notification to Requester

[Date]Request Number[#]

[Requester's name and address]

Dear [ ]:

Thank you for your access request which we received on [insert date] under the [Municipal] Freedom of Information and Protection of Privacy Act. We received your $5.00 application fee and your request for access to the following:

[insert details of records requested]

Option: Further information/Clarification required

Unfortunately, the request does not provide sufficient detail to identify the record(s). Please supply the following information so that we may begin to process your request:

[insert details of information needed]

We would be happy to answer any questions or assist you in clarifying or reformulating your request.

If we do not hear from you within 30 days of this letter's date, we will close your file.

Option: Transfer/Forward

[Name and address of other institution] has (custody or control of) or (a greater interest in) the records you seek. Under section 25/18 of the Act, we (forwarded) or (transferred) your access request to them [enclose s.25/18]. Since we are not processing your request we are returning your $5.00 application fee with this letter. Please send a new application fee to the institution listed above.

You may appeal this decision to the Information and Privacy Commissioner. The Commission can be reached at:

See also Additional Information #11

Please contact [name, title and phone number of person responsible] if you have any questions. We would appreciate you using the Request number [#] assigned to your request in any further correspondence.

Note: As quickly as possible, the head or delegate should notify the other institution that a request is being forwarded/transferred

Sincerely,

[signed by head or delegate]

encl.

Appendix IV: Sample notification letters

#2 Notice to Institution Receiving a Transferred/Forwarded Request

[Date] Request Number[#]

[Name and address of transferee institution]

Dear [ ]:

The enclosed request for access was received on [date].

This request is [transferred/forwarded] to you under section 25/18 of the[Municipal]

Freedom of Information and Protection of Privacy Act as we believe your institution has
[custody or control of/greater interest in] the record.

We have returned the application fee to the requester and have instructed him/her to send
an application fee to you.

Sincerely,

[signed by Freedom of Information and Privacy Coordinator]

Freedom of Information and Privacy Manual

Appendix IV: Sample notification letters

#3 Notice of Time Extension

[Date] Request Number[#]

[Requester's name and address]

Dear [ ]:

Thank you for your access request which we received on [insert date] under the [Municipal] Freedom of Information and Protection of Privacy Act. We received your $5.00 application fee and your request for access to the following:

[insert details of records requested]

A request under the Act usually must be answered within 30 calendar days, however section 27/20 (enclosed) allows for time extensions under certain circumstances. The time limit for answering your request has been extended for an additional [insert number] days to [insert date].

The reason for the time extension is [insert reason]:

You may request that our decision to extend the time limit be reviewed by the Information and Privacy Commissioner. The Commissioner can be reached at:

[insert address]

See also Additional Information #11

Please contact [name, title and phone number of person responsible] if you have any questions. We would appreciate you using the Request number [#] assigned to your request in any further correspondence.

Sincerely,

[signed by head or delegate]

Appendix IV: Sample notification letters

#4 Fee Estimate/Interim Decision Regarding Disclosure

[Date]Request Number[#]

[Requester's name and address]

Dear [ ]:

Thank you for your request which we received on [insert date] under the [Municipal] Freedom of Information and Protection of Privacy Act for access to [describe records requested]. An initial review of the records indicates that it will cost an estimated [enter amount] to process your request. The fee estimate is based on [explain fee estimate].

As we have not yet reviewed the records in detail, no final decision has been made regarding access but the following exemptions will likely apply. [Generally describe what exemptions might apply to the records].

[And: Where the fee estimate is over $100.00]

Regulation 460/823 s.7, says that where the fee estimate is over $100.00, an institution may request a deposit equal to 50% of the estimated fee. We will wait until we receive the amount of [enter amount] from you before we resume processing the request.

The Act provides that all or part of the fee can be waived if in our opinion it is fair and equitable to do so, if the fee will cause you financial hardship or if dissemination of the record will benefit public health or safety. You may be required to provide proof to support any waiver claims. Please notify [insert name, title and phone number] as soon as possible of your wish to proceed with a request for a fee waiver.

If you disagree with any aspect of the fees, or wish to revise your request, please discuss the matter with us. Afterward, you may request that this fee estimate be reviewed by the Information and Privacy Commissioner. The Commissioner can be reached at:

[insert address]

See also Additional Information #11

Please note that you have 30 days from the receipt of this letter to request a review from the Commissioner. If we have not heard from you within 30 days we will close your file.
Enclosed is a copy of section 57/45 of the Act and the relevant regulations [optional]. Please contact [name, title and phone number of person responsible] with any questions. We would appreciate you using the Request number [#] assigned to your request in any further correspondence.

Sincerely,

[signed by head or delegate]

Freedom of Information and Privacy Manual

Appendix IV: Sample notification letters

#5 Notice to Affected Third Party - Section 17/10: Third Party Information

[Date]Request Number[#]

[Affected third party's name and address]

Dear [ ]:

The [name of institution] has received a request for access to records under the [Municipal] Freedom of Information and Protection of Privacy Act to disclose [describe in detail the records as they relate to the s.17/10 affected third party].

According to section 28/21 of the Act, a third party whose interests may be affected must be given the opportunity to make representations to the head of an institution concerning disclosure of the records.

To successfully qualify for a third party exemption, all of the following three tests must be met:

• the information must fit within one of the specified categories of third party information: trade secret or scientific, technical, commercial, financial or labour relations information;
• the information must have been supplied by the third party in confidence, implicitly or explicitly; and
• the disclosure of the information could reasonably be expected to cause one of the harms indicated below:
  • prejudice your competitive position or interfere with any contractual rights you possess, or
  • result in you no longer supplying this or similar information to [name of institution], or
  • result in undue loss or gain to any person, business, or organization of which you are aware.

Under section 17/10 of the Act, we must release these records unless the above conditions are met. Please review the attached records.

If you have concerns about the release of the records please contact us, in writing, no later than [insert date] outlining your concerns. In order to support your claims against the release of the records or portions of the records, you must show how those records meet the third party criteria listed above.

We will notify you in writing by [insert date] about our decision regarding the release of the records.

Enclosed are copies of sections 17/10 and 28/21 of the Act for your convenience and information [optional]. Please contact [name, title and phone number of person responsible] if you have any questions. We would appreciate you using the request number [#] assigned to the request in any correspondence

Sincerely,

[signed by head or delegate]

Appendix IV: Sample notification letters

#6 Notice to Affected Third Party - Section 21 FIPPA/14 MFIPPA: Personal Information

[Date]Request Number[#]

[Affected third party's name and address]

Dear [ ]:

The [name of institution] has received a request under the [Municipal] Freedom of Information and Protection of Privacy Act to disclose [describe in detail the records as they relate to the affected individual].

Section 28/ 21 of the Act says individuals have the opportunity to make representations about the release of their personal information to a third party.

Your views regarding disclosure of these records is appreciated. Please indicate in writing whether or not you consider that the disclosure of the enclosed records would be an invasion of your personal privacy. Section 21/14 of the Act outlines circumstances where the disclosure of personal information may be an unjustified invasion of personal privacy.

Your response must be received no later than [insert date]. You will be notified in writing by [insert date] about our decision regarding the release of the records.

Enclosed are copies of sections 21/14 and 28/21 of the Act for your convenience and information [optional]. Please contact [name, title and phone number of person responsible] if you have any further questions. We would appreciate you using the Request number [#] assigned to the request in any correspondence.

Sincerely,

[signed by head or delegate]

Appendix IV: Sample notification letters

#7 Notice to Requester Where Third Party is Affected

[Date]Request Number[#]

[Requester's name and address]

Dear [ ]:

Thank you for your request which we received on [insert date] under the [Municipal] Freedom of Information and Protection of Privacy Act for access to [describe records requested].

The disclosure of the records may affect the interests of a third party.

The third party whose interests may be affected is being given the opportunity to make representations about the release of the record(s).

A decision on whether or not the record(s) will be disclosed will be made by [insert date], under section 28/21 of the Act.

Enclosed is a copy of section 28/21 of the Act for your convenience and information [optional]. Please contact [name, title and phone number of person responsible] if you have any further questions. We would appreciate you using the Request number [#] assigned to the request in any correspondence.

Sincerely,

[signed by head or delegate]

Appendix IV: Sample notification letters

#8 Notice to Affected Third Party After Representations Where Head Intends to Release the Record(s)

[Date]Request Number[#]

[Affected third party's name and address]

Dear [ ]:

We have received and considered your representations concerning disclosure of [details of the record(s)]. Our decision is to grant access [or partial access] to the record(s). [Give reasons for the decision]. 

Under section 28/21 of the [Municipal] Freedom of Information and Protection of Privacy Act, you may request that this decision be reviewed by the Information and Privacy Commissioner. The Commissioner can be reached at:

[insert address]

See also Additional Information #11

You have until [insert date] to request a review, otherwise the records will be released to the requester.

Please contact [name, title and phone number of person responsible] if you have any further questions. We would appreciate you using the Request number [#] assigned to the request in any further correspondence

Sincerely,

[signed by head or delegate]

Appendix IV: Sample notification letters

#9 Notice to Requester Regarding an Access Decision

[Date]Request Number[#]

[Requester's name and address]

Dear [ ]:

In response to your request under the [Municipal] Freedom of Information and Protection of Privacy Act for access to [describe records requested].

Option: access granted

I am pleased to inform you access is granted to [insert details].

Option: subject to copyright
Please note that you are bound by any copyright that applies to the records you receive under this Act.

Option: no records exist

Access cannot be provided to [insert details of nonexistent records] as the records do not exist.

Option: denial of access

Access is denied to [insert details of withheld records] under section(s) [insert section numbers] of the Act. The provisions apply to the record(s) because [insert reasons].

Option: refusal to confirm existence

Under section [12(5)/14(5)] OR [14(3)/8(3)], we cannot confirm or deny the existence of the record.

Option: summary of records categories

Due to the complexity of your request, we have summarized the records categories in order to provide you with an overview of the access decision made.

You may request that this decision be reviewed by the Information and Privacy Commissioner. The Commissioner can be reached at:

[insert address]

See also Additional Information #11

Please note that you have 30 days from the receipt of this letter to request a review.

Enclosed is a copy of section [insert relevant section number] of the Act for your convenience and information [optional]. Please contact [name, title and phone number of person responsible] if you have any questions. We would appreciate you using the Request number [#] assigned to your request in any further correspondence

Sincerely,

[signed by head or designate]

Note: In this notice (if partial access is granted), the institution may wish to:

• indicate the fees for access to the records, if any;
• give the requester the option to view the record; or
• indicate that identification will be required if access is given to an individual's own personal information

Appendix IV: Sample notification letters

#10 Notice to Requester - Correction of Personal Information

[Date]Request Number[#]

[Requester's name and address]

Dear [ ]:

Your request under the [Municipal] Freedom of Information and Protection of Privacy Act for a correction of personal information was received on [insert date].

The correction was made and a copy of the corrected record is attached. On request, you are entitled to have the correction sent to those persons to whom the information was disclosed over the past 12 months.

Or

The correction was not made to the personal information. In reaching this decision we considered the following 3 elements: 1) whether the information is personal and private; 2) whether the information is inexact, incomplete or ambiguous and 3) whether the correction would be a substitution of opinion And/Or [insert reason why the request was refused][optional].

You are entitled to require that a statement of disagreement be attached to the record and that the statement of disagreement be sent to any person to whom the record was disclosed over the past 12 months.

You may appeal this decision to the Information and Privacy Commissioner. The Commissioner can be reached at:

[insert address]

See also Additional Information #11

Please note that you have 30 days from the receipt of this letter to request a review.

Sincerely,

[signed by head or designate]

Note: With this notice, the institution may wish to include a listing of the persons to whom the personal information was disclosed over the past 12 months (this listing will not include those persons listed in the personal information bank index)

Appendix IV: Sample notification letters

#11 Additional Information Where Appeal's are Likely:

If you decide to appeal a decision to the Information and Privacy Commissioner, please provide the Commissioner's office with:

1. The request number assigned to the request
2. A copy of this decision letter, and
3. A copy of the original request you sent to this institution.

Appeals to the Commissioner must also be accompanied by the appropriate fee. Fees vary according to the nature of the request being appealed as follows:

1. $25, if the person appealing has made a request for access to a general record under subsection 24(1) FIPPA / 17(1) MFIPPA;
2. $10, if the person appealing has made a request for access to personal information under subsection 48(1) FIPPA / 37(1) MFIPPA; and
3. $10, if the person appealing has made a request for correction of personal information under subsection 47(2) FIPPA / 36(2) MFIPPA.

No fee is payable for appealing a decision of a head to the Commissioner if the person appealing is a third party given notice of a request under subsection 28(1) FIPPA / 21(1) MFIPPA of the Act.

Appendix IV: Sample notification letter

#12 Internal Memo To Program Area Regarding a FOI Request

Memorandum to: [Name of Contact and Program Area]

Our reference: Request [#]

Subject: Freedom of Information Request

The attached request was made under [Municipal] Freedom of Information and Protection of Privacy Act and concerns records which we believe to be in the custody of your [area].

Please review the request and conduct a search for the records.

Your response to this request should be forwarded to this office, to be received on or before [date], and should include:

1. copies of the records (if too voluminous to copy, please contact us);
2. an indication of the number of photocopies made in response to this request and a tally of the person-hours spent searching for the record(s); and
3. your written recommendations regarding disclosure.

If the records are not in the custody of your area please provide a "nil" response. It should be noted that "nil" responses may require an affidavit at a later date; therefore, please note the date, time and location of the searches conducted.

Upon receiving your reply, we will review your findings and the requested records and if necessary, consult with our legal counsel before preparing the notification to the requester.

Any decision to apply an exemption will be reviewed with the head before it is sent to the requester.

If you have any questions please call me at [telephone#]

Freedom of Information and Privacy Coordinator

Enclosure

cc. [any appropriate persons]

Appendix V: Sample biography

Jane Citizen

Jane Citizen, of Anyplace, Ont. was recently appointed to the Anyplace Advisory Committee for Parks and Recreation.

Ms. Citizen has lived in Anyplace for the past 10 years. She has considerable volunteer experience in the community, having served as a board member for several local recreational associations, as the president of the Anyplace Tennis Club, and as president of the West Anyplace Neighbourhood Association. She is also a former medal winner for Canada in speed skating at the 1968 Olympics.

Ms. Citizen is President of Jane Citizen Electronics in Anyplace. She has a degree in engineering from the University of Toronto.

Appendix VI: Affidavit

(General heading)

Affidavit

Of (Name)

I [full name of deponent] of the [City, Town etc.] of [ ]

In the [County, Regional Municipality, etc] of [ ]

(Where the deponent is a part or the solicitor, officer, director, member, employee of a party; set out of deponent's capacity),

Make oath and say (or Affirm):

[Set out the statements of fact in consecutively numbered paragraphs, with each paragraph being confined as far as possible to a particular statement of fact.]
Sworn [or Affirmed] before me at the [City, Town etc.] of [ ] , on (date) [ ]

Commissioner for Taking Affidavits

[ ] (or as may be)

[ ] [Signature of deponent]

Appendix VIII: Research agreement

Freedom of Information and Protection of Privacy Act

This agreement is made between:

Name of researcher (referred to hereinafter as the "Researcher") and [ ]Name of institution (referred to below as the "Institution")

The researcher has requested access to the following records containing personalC information in the custody or the control of the institution:

The researcher understands and promises to abide by the following terms and conditions:

1. The researcher will not use the information in the records for any purpose other than the following research purpose unless the researcher has the institution's written authorization to do so: (Describe the research purpose below).
2. The researcher will give access to personal information in a form in which the individual to whom it relates can be identified only to the following persons: (Name the persons below)
3. Before disclosing personal information to persons mentioned above, the researcher will enter into an agreement with those persons to ensure that they will not disclose it to any other person.
4. The researcher will keep the information in a physically secure location to which access is given only to the researcher and to the persons mentioned above.
5. The researcher will destroy all individual identifiers in the information by [ ]. (date)
6. The researcher will not contact any individual to whom personal information relates, directly or indirectly without the prior written authority of the institution.
7. The researcher will ensure that no personal information will be used or disclosed in a form in which the individual to whom it relates can be identified without the written authority of the institution.
8. The researcher will notify the institution in writing immediately upon becoming aware that any of the conditions set out in this agreement have been breached.

Signed at [ ], this Day of 20[ ]

Appendix IX: Request for waiver of notice to individual of collection of personal information 

Freedom of Information and Protection of Privacy Act s.39(2)

Municipal Freedom of Information and Protection of Privacy Act s.29(2)

1. Institution
2. Description of Information to be Collected:
3. Authority for Collection:
4. Manner of Collection:
   1. directly from the individual to whom the information relates.
   2. indirect collection pursuant to s.39(1) FIPPA/ s.29(1)MFIPPA
5. Anticipated number of individuals in respect of whom Waiver is sought:
6. Use of Personal Information Collected:
   1. Describe Purpose of Collection:
   2. s.41, 42 FIPPA/s.31, 32 MFIPPA Authorization for Use: (insert section and paragraph number)
   3. Use listed in Directory
7. Reason for Waiver:

   Notification Frustrates Purpose of Indirect Collection
   Statutory Authority for Indirect Collection
   Administrative Burden/Cost of Notification
   Authorization of Commissioner
   Implied Consent
   Collection is from another Institution which has notified Individual
   Other (explain)

   1. Reason
   2. Explain why notification cannot be given.
8. Other material attached

Date/Head of Institution