Chapter 1: The Legislation
Access and privacy laws play a central role in government. These laws promote accountability, transparency, public participation and protect the privacy rights of individuals.
This chapter provides broader context and explains how Coordinators should navigate through the legislation. It introduces the history and legal framework of access and privacy laws in Ontario; explains the legislation’s purpose and principles; how it is organized; and how it interacts with other laws.
The Ontario Government established the Commission on Freedom of Information and Individual Privacy in 1977 to look at ways to improve public information policies and public sector access and privacy legislation. The Commission was headed by Dr. D. Carlton Williams and is known as the “Williams Commission”.
The framework for Ontario’s legislation is set out in the Commission’s report entitled “Public Government for Private People, The Report of the Commission on Freedom of Information and Individual Privacy” published in 1980.
FIPPA received royal assent in 1987, and came into force on January 1, 1988. The municipal counterpart, MFIPPA, came into force on January 1, 1991.
The William’s Commission, in making its recommendations, considered policy goals relating to good government such as:
Transparency: The public’s right to know what government is doing and how decisions have been reached.
Accountability: The public’s ability to hold elected representatives responsible for how they carry out their roles.
Public participation: Citizen involvement in policy development and decision-making.
Fairness in decision-making: An individual’s ability to present their side of an issue, and their right to access the information on which a decision-maker will act, including the criteria to be applied.
Personal privacy: The government’s records of personal information and information management practices, and an individual’s right to have access to government information concerning them.
Administrative costs: The cost-benefit of the resources required to administer the legislation and the benefits to society from a more open government.
Ontario Access and Privacy Law
Access and privacy laws are a category of administrative law developed to ensure that:
- The activities of government are authorized; and
- Laws are implemented and administered in a fair and reasonable manner.
In Ontario, there are four main laws that deal with access to information and privacy. Other federal and provincial legislation and municipal by-laws have specific access and privacy provisions that may also apply. The four main laws are listed below:
Freedom of Information and Protection of Privacy Act (FIPPA): Applies to the provincial government of Ontario, universities, colleges, hospitals and designated agencies. FIPPA came into force on January 1, 1988.
Municipal Freedom of Information and Protection of Privacy Act (MFIPPA): Is the local government equivalent of FIPPA and covers municipal institutions such as municipalities, cities, towns, school boards, police services and many other local government entities. MFIPPA came into force on January 1, 1991.
Personal Health Information Protection Act (PHIPA): Provides rules specific to personal health information in the custody of health information custodians. Health information custodians include health care practitioners such as hospitals, long-term care facilities, pharmacies and more. PHIPA" came into force on November 1, 2004.
Personal Information Protection and Electronic Documents Act (PIPEDA): A federal legislation that governs how private companies and not-for-profit organizations engaging in commercial activities can handle personal information. PIPEDA came into force for federally regulated industries on January 1, 2001 and for all other companies and not-for-profit organizations engaged in commercial activities in Canada on January 1, 2004.
Purpose of Legislation
The legislation begins with stated purposes:
a) To provide a right of access to information under the control of institutions in accordance with the principles that,
- Information should be available to the public,
- Necessary exemptions from the right of access should be limited and specific, and
- Decisions on the disclosure of information should be reviewed independently of the institution controlling the information; and
b) To protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.
In the context of providing advice or decision-making, Coordinators should consider the purpose of the legislation in their analysis.
Access and Privacy Principles
The legislation is principle-based. The legislation balances the rights and needs of individuals and institutions by weighing different considerations against each other.
From an access perspective, balance is achieved by providing individuals with the general right to access government records subject to limited and specific exemptions and exclusions.
From a privacy perspective, balance is achieved by protecting personal information in terms of:
- What and how personal information is collected, used, disclosed, and managed by government; and
- Providing access to a requesters own personal information in certain circumstances.
Access and privacy rights are not absolute. The facts of each situation, including the interests of the institution, individuals and the public, determine how the legislation applies and the final outcome of requests.
Organization of Legislation
FIPPA and MFIPPA are considered substantially similar laws and are organized the same way. The main parts of the legislation and content are summarized below.
Definitions and Interpretation: Defines terms for the purpose of interpreting the legislation.
Administration: This part appears only in FIPPA, but applies to MFIPPA. This part addresses the designation of the Responsible Minister for the legislation and the establishment of the Office of the Information and Privacy Commissioner.
Freedom of Information: Addresses the right of access to records, exemptions, procedures for handling a request, and information to be published.
Protection of Individual Privacy: Addresses the collection, use, disclosure and disposal of personal information; and an individual’s right to access and correct personal information about them.
Appeal: Addresses appeal rights, and procedures for mediation and appeals.
General: Addresses other administrative matters including fees, regulations, exclusions, and available information.
Regulations: Addresses specifics of the legislation, and rules and procedures that must be implemented. The regulations also list institutions covered by FIPPA and MFIPPA.
Interactions with Other Laws
The legislation should be read and interpreted together with other applicable laws. Interactions with other laws can be the result of:
- Laws from other jurisdictions, including Federal laws;
- Laws that prevail over FIPPA and MFIPPA; and
- Laws that include confidentiality requirements.
Coordinators should work with Legal Counsel to become familiar with the laws that may govern specific institution or program requirements or general government administrative requirements.
The general rule is that FIPPA or MFIPPA prevail over any other Ontario legislation. However, the legislation lists a number of laws that prevail over FIPPA and MFIPPA.
Other laws must expressly state that it prevails over FIPPA or MFIPPA. If a statute has a confidentiality provision that prevails over FIPPA or MFIPPA, it can prevent an institution from providing access to a record.
Consult the current versions of FIPPA and MFIPPA published on e-laws for a current list of laws that have been identified that prevail over FIPPA and MFIPPA.
The Canadian Copyright Act protects creative endeavours by ensuring that the creator has the sole right to authorize their publication, performance, or reproduction. Copyright applies to all original:
- Literary or textual works: books, pamphlets, poems, computer programs;
- Dramatic works; films, videos, plays, screenplays and scripts;
- Musical works: compositions consisting of both words and music, or music only;
- Artistic works: paintings, drawings, maps, photographs, and sculptures; and
- Architectural works.
The Copyright Act authorizes making a copy of a record for the purpose of giving access to a record under FIPPA or MFIPPA. The person who is given access to a record under the legislation is still bound by copyright.
Copyright may apply to records of third parties submitted to an institution or records created by an institution.
Where the Ontario Government creates a record, Crown copyright is indicated by Queen’s Printer for Ontario.
Coordinators may be required to respond to an access request relating to matters in litigation. The legislation cannot be used to withhold information that is required to be produced by law for the purpose of litigation or a matter before an administrative tribunal. Coordinators should work with Legal Counsel to obtain legal advice on this type of request.