ADMINISTRATIVE REPORT Date: November 21, 1995 TO: Vancouver City Council FROM: City Clerk SUBJECT: Freedom of Information and Protection of Privacy Act: Status Report and Staffing Requirements RECOMMENDATION A. THAT the position of Information and Privacy Officer be made a permanent position, subject to Classification and Salary review. B. THAT the annual recurring costs associated with this new position be added to the City Clerk's Office Operating Budget commencing in 1996 without offsets. CITY MANAGER'S COMMENTS The City Manager RECOMMENDS approval of A and B, noting that should the position be filled from within the City Clerk's Office, the vacancy thereby created will be filled on a temporary basis pending the outcome of the City Clerk's customer service process improvement project. COUNCIL POLICY On February 4, 1992, Council resolved that departments and boards be instructed that any recommendations for increased staff or enhanced programs be accompanied by recommendations for matching cost decreases or related revenue increases in non-tax revenue subject to Council discretion. On December 13, 1994, Council passed the Freedom of Information and Protection of Privacy By-law No.7364, which delegated the administrative responsibilities for managing applications under the Freedom of Information and Protection of Privacy Act (the Act) to the City Clerk. On July 13, 1995, the discretionary authorities and the duty to act as the Head of the City, for the purposes of the Act, were delegated by City Council to a staff team of the City Manager, the City Clerk and the Corporation Counsel. On July 25, 1995, City Council requested a report back on the overall costs which have been incurred by the City as a result of the Act. BACKGROUND On November 3, 1994, the Freedom of Information and Protection of Privacy Act was extended to Tier II "local public bodies", including the City of Vancouver. Since that time, the City has received more than 80 formal applications under the Act and many more informal information requests. Staff training on the Act's requirements, and policy and procedure development, has also gone forward. The responsibilities for the City's compliance with the Act has been delegated on a temporary basis to a member of the City Clerk's staff, who also acts as the City's contact with the Office of the Ombudsman, responding to citizen complaints and information requests of the Ombudsman, and carries forward some of the City Clerk's Office's responsibilities regarding Council Committees. PURPOSE This report provides Council with information on the City's experience under the Act to date and recommends that a staff position of Information and Privacy Officer be created in the City Clerk's Office in order to carry out the work associated with the ongoing applications under the Act the City continues to receive, including the responsibilities for responding to appeals of the City's decisions, and to act as the City's contact with the Office of the Ombudsman. Some associated elements of this work will include the development of corporate policies and procedures regarding information access and protection of personal privacy; corporate-wide fee and research schedules and ongoing staff training. DISCUSSION The corporate duties imposed on the City by the Act are considerable. Currently, they are the responsibility of one staff member of the City Clerk's Office who has been assigned the role of Acting Coordinator of Information and Privacy. The Act requires that the City respond to applications within a strict time frame, assist applicants in meeting their information needs and also safeguard the public's and the City's rights by withholding records that legitimately meet the exceptions to disclosure afforded by the Act. The Acting Coordinator must also respond to the Provincial Office of the Information and Privacy Commissioner with regard to any appeals by applicants and carry forward the City's position and arguments to formal hearings before the Provincial Information and Privacy Commissioner. Staff from the Law Department, in a limited capacity, are able to provide some assistance in the area of preparation for formal hearings, and with policy and procedure development. In addition to managing the application process, the Acting Coordinator is developing corporate policies and procedures with regard to information access and the protection of privacy; is developing research and fee schedules; is assisting with the delivery of staff training seminars on the Act; and will manage ongoing training for all City departments; and is developing City forms that ensure personal information collected is in accord with the Act. The Acting Coordinator is responsible for complying with other administrative responsibilities of the Act, including providing the Province with reports on the City's response to the Act and maintaining and delivering a Directory of the City's personal information banks. On June 15, 1995, the authority of the Office of the Provincial Ombudsman was extended to cover municipalities. It has been the City's experience to date that applicants under the Freedom of Information and Privacy Act sometimes combine their applications with appeals to the Office of the Ombudsman. It has been practical to combine the responsibilities of the Acting Information and Privacy Coordinator with the duties of the City's Ombudsman's contact. This gives the City the ability to provide effective responses to both the Office of the Privacy Commissioner and to the Office of the Ombudsman, not only for responding to specific issues, but also in developing guidelines and complaint management systems with the Ombudsman's Office. It is clear that the duties and workload imposed by the Freedom of Information and Privacy Act require the establishment of a permanent position of Information and Privacy Officer for the City. If this position is filled from within the City Clerk's Office, the vacancy thereby created will be filled on a temporary basis pending the outcome of the City Clerk's customer service process improvement project. COSTS ASSOCIATED WITH THE ACT For the purposes of the Act, the City of Vancouver is actually considered four separate public bodies: The City of Vancouver, the Vancouver Police Board, the Board of Parks and Recreation and the Vancouver Library Board. The Board of Parks and Recreation and the Vancouver Library Board have delegated senior staff to act as Information and Privacy Coordinators in addition to their regular duties. Upon receipt of a problematic application, staff in these two public bodies have been able to consult with the City's Acting Coordinator. These public bodies have received few formal requests and, apart from staff training costs which were handled on a corporate-wide basis with the assistance of a consultant specializing in the training requirements of the Act, the costs incurred by the Library Board and Park Board have been negligible. On July 25, 1995, Council approved a three-person Information and Privacy Unit for the Vancouver Police Department, at an approximate annual staff cost of $160,000. There have also been some additional costs in staff time for the retrieval of requested records. The Information and Privacy Unit is responsible for complying with all parts of the Act on behalf of the Police Department, and manages a very high number of formal applications, estimated to reach 300 for 1995. Cost recovery for these applications has been negligible. The City of Vancouver will receive an estimated 100 applications in 1995. Staff costs are approximately $45,000. There have also been some additional staff costs in departments other than the City Clerk's Office for the retrieval of requested records. Cost recovery for the applications to date is approximately $2,000. The City retained a consultant to assist with the training requirements of the Act. The costs of this program were approximately $8,000. Other Lower Mainland municipalities must also cope with the staffing requirements imposed by the Act. Most have not received as many applications as Vancouver and have been able to combine the role of Coordinator with an existing staff position. As well, many municipalities are not pursuing the records management and policy issues raised by the Act. The City of Surrey, however, has received approximately the same number of applications as Vancouver and has found it necessary to have both a Coordinator and a Coordinator's assistant, so that staff are able to respond to the applications received while retaining some of their existing responsibilities. FEES The Act does not allow full cost recovery for the processing of applications. Fees are not to be a barrier to access. The first three hours of time spent on any application must be provided free. The City may then charge for staff time to locate, retrieve, produce and photocopy the records, and $0.25 per page for photocopies. There are significant costs that are not recoverable. The City may not charge for providing an applicant's personal information. The City may not charge for the line by line review of the records which is required to determine if they contain third-party business information or personal information that might need to be severed from the records. Where staff find that third-party business information may be releasable, it is then necessary to provide the third parties copies of this material and seek their representations as to whether its release might cause harm to the third-party. Neither the third-party notification procedure or severing of personal or business interest information from the record is chargeable to the applicant. Nor can the City charge for the costs of any internal consultations. The City may not charge for copies of the records that are produced for processing the application, only for copies that are released to the applicant. STATUS OF THE APPLICATIONS The attached status report dated November 1, 1995 (Appendix A)* is the first of quarterly reports requested by Council on the formal applications received by the City. A copy of this report has been provided to VMREU/CUPE 15 for information. * * * * Limited Distribution (on file in City Clerk's Office) APPENDIX A FOI APPLICATIONS - Status as of November 21, 1995 1994 1170-1*** C.A.I.R. (staff member) for Human Resource records, etc., - response completed - review requested by applicant. In response to the Office of the Information and Privacy Commissioner's (OPC) review, the applicant is provided a cost estimate for two records. Applicant requests second review from the OPC. Reviews complete. 1170-2 U-TV News for S.E. False Creek Soils reports - response completed. 1170-3*** NDP for Fraserlands, et al - response completed ($1,714.94) - review of four fee issues requested by applicant. OPC upholds City's process, but orders that the fees be revised ($1,022.75) and the City respond to the applicant's enquiry regarding a calendar of meetings. Transcript of calendar provided, personal information severed. Written Hearing held June 28, 1995, with rebuttals exchanged July 6, 1995, regarding refusal of the fee waiver and quality of the City's fee estimates. On September 21, 1995, the Privacy Commissioner issues an order upholding the City's fees. Payment received November 1, 1995. 1170-3.1 NDP for City Clerk's Office file regarding 1170-3 - response completed (Liberal Party also requested and received this record). 1170-4*** Professor at UNBC for transportation planning information - response completed - review requested by applicant. Additional material provided to applicant and also forwarded to the OPC. Second set of additional information provided. Engineering staff to discuss topic with applicant and the applicant has been provided a cost estimate for building line setback information. Review complete. 1170-5 Vancouver Sun for health records of two care facilities - response completed.- 2 - 1170-6*** BCNU for health records of a care facility - response prepared, applicant requests a review of City's and Ministry of Health's decisions. Copy of complete record and index forwarded to the OPC for review process. Review completed. 1170-7 Individual and Advocate for personal health records - handled at staff level - completed. 1995 1171-1 Individual for noise complaint file - response completed. 1171-2 Individual for quality assurance report of a care facility - response completed. 1171-3 Individual for relative's health records - response completed. 1171-4 Tenants organization for Nelson Park Site (In Camera) records - response completed. 1171-5 Staff member for his personnel records - application transferred to VPB. 1171-6** C.A.I.R. #2 (staff member) for Human Resources records, etc., - response completed - applicant requests fee waivers and an OPC review of the City's response. City denies fee waivers. 1171-7 Westender Newspaper for Real Estate file on the Fraserlands project - response completed. 1171-8 Individual for property use (secondary suite) complaint file - response completed, personal identifiers of complainant severed under S. 22. 1171-9 NDP for 1993 contracts - response completed - Payment $5.03 received. 1171-10 Liberal Party for NDP's Fraserlands et al - response completed parallel with 1170-3 ($1,079.24). Fees revised to $583.50. Payment received August 8, 1995. - 3 - 1171-11 Consulting company for NDP's Fraserlands et al - response completed parallel with 1170-3. 1171-12 Liberal Party for additional Fraserlands records - response completed ($76.28). Fees revised to $19.25. Payment received August 8, 1995. 1171-13 NDP for financial information on Library Square - response completed: annual report provided, as per the terms of a focused application. 1171-14*** NDP for Mayor's Office tel/fax/cell records - Review of time extension requested by applicant. OPC finds the time extension is warranted. Report to the head May 4, 1995 - access to destination telephone numbers denied. Applicant requests a review of the City's decision. Report to the head July 13, 1995 for reconsideration of the application. Application again denied. Written Hearing held July 28, 1995, rebuttals exchanged August 4, 1995. Privacy Commissioner upholds City's decision on November 21, 1995. 1171-15.1 Individual for copies of a property's blueprints, response completed - copies denied under S. 19. Third party also opposed to release of plans. 1171-15.2 Individual for copies of same property's Fire Inspection Reports - routed as a routine request. 1171-15.3 Individual for copies of same property's Property Inspection Reports - routed as a routine request. 1171-16*** NDP for 1992 and 1993 accounting records of two corporate credit cards - response completed ($283.09) Review of fee issues requested by applicant. OPEC validates City's process, but orders that the fees be revised to $136.50. Payment received July 31, 1995. 1171-17 NDP for 1993 accounting records of restaurant use - records reviewed by applicant. 1171-18 NDP for City records from 1989-1993 regarding a research consultant - applicant provided a fee estimate - application abandoned. - 4 - 1171-19*** Kitsilano News for Mayor's Office telephone records. Report to the head May 4, 1995 - access to destination telephone numbers denied. Applicant requests the OPC review of the City's decision. Report to the head July 13, 1995 for reconsideration of the application. Application again denied. Written Hearing held July 28, 1995, with rebuttals exchanged August 4, 1995. Privacy Commissioner upholds City's decision on November 21, 1995. 1171-20 Individual for by-law fines records re pestering - response completed - summary, but not personal information, provided under S. 22. 1171-21 Liberal Party for copies of all NDP applications and copies of all records released - response for file 1171- 16 completed ($283.09). Fees revised to $136.50. Payment received August 8, 1995. 1171-22 Magazine for records relating to Riots; A Review of Major Events - response completed, applicant reviewed original files and was provided some copies. 1171-23 Courier Newspaper for NDP and Liberal applications and fees - response completed. 1171-24 NDP for records related to the City's settlement with a senior police officer - response completed, record severed under S. 14 and 22, courtesy notice sent to the third party. 1171-25 IBEW for records regarding an electrical contractor - response completed: correspondence file provided as per the terms of a focused application. 1171-26*** C.A.I.R. (staff member) for Engineering staffing information - response completed. Applicant requests a review of the timeliness of the City's response. OPC review complete. 1171-26.1** Follow-up application received. Some records recommended to be excepted under S. 17. Applicant requests review from the OPC. Applicant requests fee waivers. City denies fee waivers and severs a portion of the record under S. 17. - 5 - 1171-27 Heritage Group for a City contract with a development consultant - response completed: applicant reviewed files and was provided some copies. 1171-28 Individual for copies of the NDP applications - response completed. 1171-29 Kitsilano News for access to all records related to contaminated sites in the city - response completed: applicant provided a list of the sites and interviews staff in the Permits and Licenses Department. 1171-30 Individual for the identity of complainant in a property use file (institutional use) - response completed, access denied under S. 22. 1171-31*** Individual for own property inspection file (building permit) - response completed - severed copies, under S. 15, 19 and 22, of complaint correspondence provided, third parties notified. Applicant requests a review of the City's response. Applicant requests and receives copies of further correspondence. Review completed. 1171-32 NDP for copies of City records regarding Portfolio; The Marketing Collaborative Inc. and Marketplace Communications - response completed - no records found. 1171-33 Individual for copies of their own health records and care facility records response completed. 1171-34 NDP for Cityrecords regarding Atlas Travel Service Ltd. - fee estimate provided, on hold May 12 - July 10. Applicant accepts fee ($130.00) - payment received August 11, 1995 - response completed. 1171-35 Vancouver Sun for by-law fines records - nature of the record discussed with applicant - applicant advised of fees, application abandoned. 1171-36 Individual for identity of complainants (renovations and dog) - response completed - no records found. - 6 - 1171-37 Individual for their own home care assessment records - response completed, information identifying third parties severed under S. 22. 1171-38 Individual for Environmental Health reports and orders issued to a property managed by the applicant - response completed, personal information not directly supporting the reports severed under S. 22. 1171-39 Individual for copies of records regarding complaints and conflict with a health care facility - request transferred to the Ministry of Health. 1171-40 Heritage group for city records regarding a heritage neighbourhood - response completed, (In Camera) report provided. Supplemental information request received - response completed. 1171-41 Individual for City records regarding the proposal to underground the Boundary Road transmission lines - application narrowed to pertinent Council reports - response completed. 1171-42 Advocacy Group for information regarding special events - response completed: report provided, request referred to City Engineer for further information. 1171-43 NDP for records of the Property Endowment Fund - some records provided, applicant provided a fee estimate for remainder - application abandoned. 1171-44 Law firm for records of a City-owned property - response completed, records withheld under S. 14. 1171-45 Pacific Press for records of 1-900 telephone calls - response completed, no records found. 1171-46 Health Care Facility Manager for copy of a letter of complaint - response completed, third party's personal information severed under S. 22. 1171-47 Individual (former staff member) for Quality Assurance files of a Health Care Facility - response completed, some information severed under S. 14, 21 and 22. - 7 - 1171-47.1 Further application for additional records associated with the quality assurance audits - response completed, personal information severed under S. 22. 1171-48*** Individual for file and identity of complainant regarding renovations response completed, complainant identity withheld under S. 15, 19 and 22. Applicant requests the OPC to review the City's response. Review completed. 1171-49*** Private school for various City records - Applicant requests the OPC review the City's 30-day extension - review and response completed. 1171-49.1** Second information request received, response in process; third party consultations undertaken - partial response provided, additional records provided, some records excepted under Section 14. Applicant requests a further review. 1171-50 Individual (staff member) for Human Resource Department grievance records regarding references contacted by the City - response completed. 1171-51 Individual for all City records regarding complaints received about his property - response completed. 1171-52 Same individual for all City records regarding complaints received about his neighbour's property - response completed. 1171-53 Applicant to the Board of Variance for Board records - response completed. 1171-54 Hospitality organization for records regarding the Angus Reid Smoking Poll - response completed. 1171-54.1 Same organization for comprehensive records on the no- smoking initiative - response completed. 1171-55 Individual (staff member) for two consultants' reports and recommendations - response completed. - 8 - 1171-56 Citizen Group for records regarding a development permit for a casino - response completed, applicant given access to City/developer correspondence, not to identities of individuals balloted on the proposal. 1171-57 Individual (staff member) for HR and IS records regarding specific "red-circled" positions, and background information on the "red-circling" process - response completed. 1171-58* Westender Newspaper for costs and expense records of City Council home fax and cellular telephones - response in process. 1171-59 Individual (former staff member) for records of Phase II of the Carnegie Centre and Oppenheimer Park project - response completed. 1171-60** Same individual for comprehensive records of the Carnegie Centre - response completed. Applicant registers a complaint that the City improperly shared information with another public body. 1171-61 BCNU for correspondence file regarding licensed graduate nurses. File severed under S. 22. - response complete. 1171-62* Westender Newspaper for usage records of City Council home fax and cellular telephones - response in process. 1171-63 Westender Newspaper for all records of a Council workshop - response in completed, portions of the record severed under S. 12.1, 13 and 17 (1) (c). 1171-64 Student for records of the Mayor's expenses - response completed. 1171-65 The Leader Newspaper for Council reimbursements from the UBCM Conference - response completed. 1171-66 Individual for City records regarding complaints received about his property - response completed. 1171-67 Individual for records of metered water consumption - response completed.- 9 - 1171-68* NDP for records of the lease of the Racetrack to the B.C. Jockey Club - response in process. 1171-69* IBEW for records regarding the certification of alarm system technicians - response in process. 1171-70 Tenants organization for information on a payment-in-lieu proposal - response completed, information withheld as it will be made public within 60 days (S. 20). * = in process (4) ** = under review/formal hearing (4) *** = review/hearing completed (11). TOTAL: 84