ADMINISTRATIVE REPORT
Date: May 2, 1997
CC File: 113/1150-1
TO: Vancouver City Council
FROM: City Clerk
SUBJECT: Freedom of Information and Protection of Privacy:
Amendment of By-law 7364
RECOMMENDATION
A. THAT Council amend By-law 7364 to give the Information and
Privacy Co-ordinator the authority to apply discretionary
exceptions to disclosures under the Act and to exercise the
power of the Head to charge or to waive fees related to a
request.
B. THAT the Director of Legal Services be instructed to bring
forward the necessary by-law amendments.
CITY MANAGER'S COMMENTS
The City Manager RECOMMENDS approval of A and B.
COUNCIL POLICY
In December 1994, Council passed By-law 7364 designating the Standing
Committee on City Services and Budgets as the Head for the purposes of
the Freedom of Information and Protection of Privacy Act. This by-law
also delegated some of the Head's duties and powers to the Information
and Privacy Co-ordinator. The by-law designated the City Clerk as the
Information and Privacy Co-ordinator.
In July 1995, Council amended By-law 7364 to designate the City Clerk,
City Manager and the Corporation Counsel as the Head.
In December 1996, Council created a regular full-time exempt position in
the City Clerk's Department to deal with the Freedom of Information and
Protection of Privacy Act.
PURPOSE
The purpose of this report is to ask Council to amend the Freedom of
Information and Protection of Privacy By-law (By-law 7364) to authorize
the Information and Privacy Co-ordinator to exercise more duties and
powers of the Head.
BACKGROUND
The Freedom of Information and Protection of Privacy Act ("the Act")
gives the members of the public a right of access to records in the
custody or under the control of the City.
Since November 1994, the City has received over 220 requests under the
Act for access to various records. Under the Act, the duty to respond to
a request as well as the discretion to withhold information under any of
the exceptions listed in the Act rests with the Head of a public body.
The Act requires Council to designate the Head for the purposes of the
Act. The Act does not allow the Head designated by Council to delegate
any of the Head's powers or duties. However, the Act allows Council to
authorize any person to perform any duty or to exercise any function of
the Head.
Under By-law 7364, as amended in 1995, Council designated the City
Manager, City Clerk and Corporation Counsel as the Head. Council also
authorized an Information and Privacy Co-ordinator to exercise some of
the functions of the Head, such as responding to requests except where
the Head has the discretion to withhold information. The City Clerk was
designated as the Information and Privacy Co-ordinator.
The everyday handling and processing of requests is done by the Manager
of Information and Privacy in the City Clerk's Department with
assistance, when required, from Legal Services.
DISCUSSION
Under the Act, the applicant has a right to access records of the City
subject to limited exceptions. Three of those exceptions are mandatory
but the remaining nine exceptions are discretionary. The mandatory
exceptions require the City to withhold information and, under the
present by-law, they can be applied by the Information and Privacy
Co-ordinator. The discretionary exceptions may be, but do not have to
be, applied to withhold information. Application of a discretionary
exception requires consideration of all relevant factors before
deciding whether to apply the exception or not. Under the current
by-law, only the Head can apply discretionary exceptions. The Head
cannot delegate this function, nor can this discretion be exercised
through a standard policy. Each case must be decided on its own.
Failure to properly exercise discretion could result in the decision
being overturned by the Information and Privacy Commissioner.
The same issues arise with respect to the charging and waiving of fees
related to the processing of requests. Only the Head can decide to
charge a fee and, if requested by the applicant, only the Head can
consider and decide whether to waive or refuse to waive a fee.
Although the powers and functions of the Head cannot be delegated by the
Head, the Act allows Council to authorize another person to perform any
of the Head's duties or functions. Council has authorized the City
Clerk, acting as the Information and Privacy Co-ordinator, to exercise
some of the Head s powers and functions.
Based on the City's experience since the Act was extended to cover local
government bodies in November 1994, staff conclude that it is
impractical and inefficient to have the Head (City Manager, City Clerk
and Corporation Counsel) involved in every case where a discretionary
exception might be applicable. It is recommended, therefore, that the
Information and Privacy Co-ordinator be authorized to handle all aspects
of processing a request, including application of the discretionary
exceptions and charging and waiving fees. Such an amendment would not
reduce the powers of the Head who would retain the overall
responsibility and authority over the administration of the Act in the
City.
CONCLUSION
This report recommends that Council amend the By-law to allow for more
efficient and cost effective handling and processing of freedom of
information requests.
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