LA FOIP, Municipalities and Cities

August 11, 2017 - Sharon Young, Analyst

Access to information under LA FOIP

One of the purposes of The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) is to ensure that local authorities are transparent and accountable to the public. One way of facilitating transparency and accountability is to provide individuals with the right to access records in the possession or under the control of a local authority. Section 5 of LA FOIP provides individuals with the right to access to records in the possession or under the control of a local authority:

5 Subject to this Act and the regulations, every person has a right to and, on an application made in accordance with this Part, shall be permitted access to records that are in the possession or under the control of a local authority.

Individuals may use this form to submit an access to information request to a local authority: http://www.qp.gov.sk.ca/documents/Forms/L27-1R1-B.pdf.

When a local authority receives a written request, it should process the request formally under LA FOIP. This includes assisting the Applicant to identify the record he/she is seeking, issuing a fee estimate if it is appropriate to do so, conducting a reasonable search for records, consulting with third parties, and issuing a formal response in accordance with section 7 of LA FOIP. For more information, please consult my office’s Best Practices for Responding to Access Requests: https://oipc.sk.ca/assets/best-practices-for-responding-to-access-requests.pdf.

Are there records that citizens may access without submitting a formal request under LA FOIP?

A person is entitled under section 117 of The Municipalities Act (MA) to inspect and obtain copies of certain types of records, including contracts approved by council, financial statements prepared in accordance with section 185 of MA, and council’s approved meeting minutes. What this means is that individuals should not have to submit a formal request under LA FOIP to obtain the records they are entitled to under the MA.

Similarly, a person is entitled under section 91 of The Cities Act (CA) and section 133 of The Northern Municipalities Act, 2010 (NMA) to inspect and obtain copies of similar types of records described above. What this means is that individuals should not have to submit a formal request under LA FOIP to obtain the records they are entitled to under the CA.

Do councillors have a right to records?

As a part of their duties, councillors are to represent the interests of the citizens living within their constituency at council meetings and council committee meetings. Councillors must also be informed in order to effectively participate in such meetings. In order to stay informed, councillors should have access to records related to the municipality/city business without requiring them to make a formal access to information request under LA FOIP to gain access.

Municipalities and cities should have policies and procedures in place that enables councillors to have access to records related to municipality/city business. Councillors should also agree to keep matters confidential until the matter is discussed publicly at a council meeting or council committee meeting.

Section 92 of the MA outlines the duties of councillors as follows:

92 Councillors have the following duties:

(a) to represent the public and to consider the well-being and interests of the municipality;

(b) to  participate  in  developing  and  evaluating  the  policies,  services  and  programs of the municipality;

(c) to  participate  in  council  meetings  and  council  committee  meetings  and  meetings of other bodies to which they are appointed by the council;

(d) to  ensure  that  administrative  practices  and  procedures  are  in  place  to  implement the decisions of council;

(e) subject to the bylaws made pursuant to section 81.1, to keep in confidence matters discussed in private or to be discussed in private at a council or council committee meeting until discussed at a meeting held in public;

(f) to maintain the financial integrity of the municipality;

(g) to perform any other duty or function imposed on councillors by this or any other Act or by the council.

Section 65 of the CA and section 106 of the NMA is very similar to the above.

When should council meetings or council committee meetings be held in-camera?

The MA, CA, and NMA requires councils and council committees to meet in public. Parts or all of a meeting can be closed to the public if the matter being discussed is within one of the exemptions in Part III of LA FOIP. Part III of LA FOIP provides for limited and specific circumstances in which information should not be disclosed.  Generally speaking, councils and council committees should make efforts to conduct most of their meetings in public unless one of the limited and specific circumstances in Part III of LA FOIP exists.

An example of when councils or council committees should hold part of a meeting closed to the public is if a matter to be discussed includes personal information of a citizen. This is because Part III of LA FOIP includes the following exemption:

15 (1) A head may refuse to give access to a record that:

(b) discloses agendas or the substance of deliberations of meetings of a local authority if:

(ii) the  matters  discussed  at  the  meetings  are  of  such  a  nature  that  access to the records could be refused pursuant to this Part or Part IV.

Part IV of LA FOIP provides that local authorities must not disclose personal information unless it has consent of an individual or the disclosure is in accordance with section 28 or 29 of LA FOIP:

28 (1) No  local  authority  shall  disclose  personal  information  in  its  possession  or  under  its  control  without  the  consent,  given  in  the  prescribed  manner,  of  the  individual to whom the information relates except in accordance with this section or section 29.

To understand when a meeting should be closed to the public, municipalities and cities should have a sound understanding of LA FOIP. For support, municipalities should contact the Ministry of Government Relations. They should also contact the Ministry of Justice (Access and Privacy Branch) at 306-798-0222 or accessprivacyjustice@gov.sk.ca, who makes training available to cities and municipalities.

Open Government, proactive disclosure, and routine disclosure

Municipalities and cities across Canada are leading the way in open government initiatives, including the City of Regina and the City of Saskatoon. These initiatives allow for citizens to gain access to information without submitting a formal access to information request. Check out the City of Regina’s website at http://open.regina.ca/pages/access and the City of Saskatoon’s website at http://opendata-saskatoon.cloudapp.net/.

I also note that many other cities and municipalities in Saskatchewan are proactively preparing and publishing information on their websites such as council agendas and meeting minutes. Such proactive disclosure of information facilitates transparency and accountability and enhances active participation of citizens in civic life.

Check out my office’s blog entry on what a municipality or city should consider when publishing agendas and meeting minutes on its website: https://oipc.sk.ca/council-agendas-and-meeting-minutes/.

Other helpful resources

A resource about LA FOIP for councillors: https://oipc.sk.ca/assets/what-councillors-should-know-about-lafoip.pdf

Mayors, reeves, and councilors may have a steep learning curve when they are elected, including how to handle personal information and personal health information. Here’s a resource on best practices on how to handle records that contain personal information and personal health information: https://oipc.sk.ca/assets/best-practices-for-mayors-reeves-councillors-and-school-boards.pdf

LA FOIP 101: The Basics for Cities, Towns, Municipalities Webinar: https://oipc.sk.ca/resources/webinars/la-foip-101-the-basics-for-cities-towns-municipalities-etc/

Resources by the Ministry of Justice, Access and Privacy Branch: http://www.publications.gov.sk.ca/deplist.cfm?d=9&c=3570

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