Table of Contents

Page No.

Introduction

2

Addition of public bodies - Municipalities

3-4

Addition of public bodies - Post-secondary educational institutions

5-6

Records for which solicitor-client privilege is claimed

7-8

Time Period Amendment, from 20 years to 15 years, ss. 19, 20 21, and 22

9-10

Periodic statutory review

11

1 Page

 The Freedom of Information and Protection of Privacy Act (“the FOIPP Act”) is an often-used
law. Last year, the Access and Privacy Services Office processed
almost 200 access to information requests, and may exceed this
number in 2017. The number of requests for access has
Brief History of Amendments to

increased considerably since the original proclamation of the

the FOIPP Act:

FOIPP Act. In addition, people are more aware of, and

PEI’s FOIPP Act was proclaimed
in November, 2002. The
Standing Committee on
Community Affairs and
Economic Development began a
review of the FOIPP Act in May,
2004, and made
recommendations for
amendment in December, 2004.
The Office of the Information
and Privacy Commissioner (“the
OIPC”) was among the
presenters to the Committee.
Amendments were incorporated
into Bill 10, which received Royal
Assent on December 15, 2005.
Pursuant to section 79 of the
FOIPP Act, beginning on
December 12, 2008, a formal
review of the FOIPP Act was
undertaken by the Standing
Committee. The Committee
received remarks from the
Acting Commissioner, and made
recommendations for
amendment in April, 2009. No
additional amendments to the
FOIPP Act resulted from this
review.

concerned about, protection of their personal information,
which is a core obligation of public bodies set out at Part II of
the FOIPP Act.
The FOIPP Act is well-written, and has proven to be an effective
law. Over the years, some issues have arisen, which
Commissioners and courts have clarified through statutory
interpretation. There are still amendments which the OIPC
encourages this Committee to consider to improve access to
information and protection of privacy, and to bring the FOIPP
Act in line with similar statutes in other jurisdictions.
The recommendations herein arise from the OIPC’s review of
the FOIPP Act, and Alberta’s FOIP statute, upon which the FOIPP
Act was originally modelled. In addition, as discussed in the
following pages, the OIPC has gathered information from other
jurisdictions, for comparison purposes. If the Committee
considers other amendments to the FOIPP Act, not described
herein, the OIPC requests the opportunity to provide comment.
I thank the Committee for the invitation to make
recommendations.

Karen A. Rose
Information and Privacy Commissioner
2 Page

 Addition of public bodies - Municipalities
What is the issue? Islanders do not have a legislated right to access information in the custody
or control of municipalities, and municipalities are not subject to the same obligations as public
bodies to protect the privacy of the personal information that they hold.
Some municipalities provide access to some information, but they are not required to do so,
and, importantly, there is no independent oversight of their decisions. For example, if a
municipality declines to provide access to information, there
is no designated Commissioner to independently review
In March 2015, the Saskatchewan
OIPC made a recommendation to
the Saskatchewan Legislative
Assembly regarding its Local
Authority Freedom of Information
and Protection of Privacy Act, to
include municipal police forces as
local authorities covered under
this law.
This recommendation was
incorporated into Bill No. 30, and
received Royal Assent on May 17,
2017. It is awaiting proclamation.

that decision.
The Legislature passed the Municipal Government Act, Bill
No. 58, on December 15, 2016 (not yet proclaimed), which
includes a requirement for councils to create bylaws to
address access to information and protection of privacy.
The statutory standard is far less detailed than the statutory
standards of the FOIPP Act, with no independent oversight.
In order to provide better services to individuals or families
who may be at risk, there has been a move within
governments to develop models which may involve
collaboration among service providers, and sharing of

personal information of those who are identified as being at risk of harm. The PEI Bridge is one
such model, which has been operational for the past year. Collaboration within the PEI Bridge
may involve local police services. The OIPC is particularly concerned that local police services
are not public bodies under the FOIPP Act. While the RCMP fall under federal legislation, the
Privacy Act and the Access to Information Act, there is no access or privacy legislation which
applies to local police in Prince Edward Island. This creates a gap in oversight. Until recently,
this was also the case in Saskatchewan, but has been remedied by an amendment to their
legislation (see text box above). Inclusion of municipalities, and municipal police services, as
public bodies under the FOIPP Act, would eliminate this gap in Prince Edward Island.
3 Page

 In the 2015-2016 Annual Report of
the Information and Privacy
Commissioner for the Northwest
Territories, Commissioner KeenanBengts stated:
“It will come as no surprise that the
need to ensure that municipal
governments become subject to some
form of access and privacy regulation
remains on my wish list.
Municipalities have had nearly twenty
years to get their heads around how
to achieve this. While I understand
the limitations that municipalities face
in terms of resources, expertise and
infrastructure, it is no longer
acceptable, in 2016, that a public
government has no legal obligation to
provide access to public records and,
perhaps more importantly, to protect
the personal information it collects.”
Commissioner Keenan-Bengts is also
the commissioner for Nunavut and
made a similar recommendation for
Nunavut.

How do we compare to other Canadian jurisdictions?
Prince Edward Island is the only province whose
municipalities do not have a statute governing access to
information or protection of privacy. Saskatchewan will
soon include local police services. The Territories have not
yet included local public bodies in their freedom of
information and protection of privacy legislation, but the
OIPCs overseeing their legislation have recommended a
similar amendment (see text box at left).
Recommendation: It is the recommendation of the OIPC
that municipalities be added as public bodies under the
FOIPP Act.
Timing: The PEI Legislature may wish to consider adding
municipalities as a public body, with a delayed statutory
effective date. The approach of other jurisdictions to add
municipal governments to the different access to
information and protection of privacy laws has varied, with
most provinces adding municipalities years after the
original proclamation of their freedom of information and
protection of privacy legislation. This is also how the PEI
Legislature brought Regional Health Authorities and School

Boards, into the FOIPP Act, one year following the original proclamation.
Other consequential considerations: Based on the OIPC’s review of the FOIPP Act, adding
municipalities as public bodies should be a straightforward exercise. Aside from including
municipalities in the definition of “public body” under section 1 of the FOIPP Act, and listing
them in Schedule 1, there is one other provision which may require amendment: Section 19 is
a discretionary exception to disclosure if disclosure would be harmful to intergovernmental
relations. This section should be amended to include intergovernmental relations with
municipal governments.

4 Page

 Addition of public bodies - Post-secondary educational
University of Alberta website:
The Freedom of Information and
Protection of Privacy Act (the
Act) has applied to the University
of Alberta since September 1,
1999. This Act applies to all
public bodies including
ministries, Crown agencies and
corporations, municipalities,
hospitals, schools, universities
and colleges.

institutions
What is the issue? Islanders do not have a right to access
information in the custody or control of post-secondary
educational institutions in this province. In addition, these
institutions are not required to protect individuals’ personal
information in their custody or control.
While the two Island post-secondary educational institutions

University of Saskatchewan
website:

have recently adopted policies about access to information

The purpose of this policy is to
ensure that the University of
Saskatchewan complies with its
obligations under The Local
Authority Freedom of
Information and Protection of
Privacy Act (the "Act") to provide
appropriate public access to
information and to protect the
privacy of Personal Information
that is in the possession or under
the control of the University of
Saskatchewan ….

the discretion of the institutions and, further, there is no

1. Freedom of Information:

and protection of personal information, these policies are at

independent oversight of their processes or decisions.
Post-secondary educational institutions hold significant
personal information, but have no legislated obligation to
protect the privacy of the personal information that they hold.
How does PEI compare with other Canadian jurisdictions?
Prince Edward Island is the only province whose freedom of
information legislation does not apply to post-secondary
educational institutions. All other Canadian provinces include

As a publicly funded institution,
the University will act in an
accountable and open manner
when receiving and responding
to Requests for information.

such institutions as public bodies under their freedom of
information legislation. The Territories also include postsecondary educational institutions as public bodies under their
legislation.

Recommendation: It is the recommendation of the OIPC that post-secondary educational
institutions be added as public bodies under the FOIPP Act.

5 Page

 Timing: The PEI Legislature may wish to consider adding post-secondary educational institutions
as public bodies, with a delayed statutory effective date, to permit these institutions to
properly prepare to comply with the FOIPP Act.
Other consequential considerations: Alberta’s FOIP, upon which the PEI FOIPP Act is based,
includes the following provisions, relating to post-secondary educational institutions, which are
worthy of consideration for amendment to the PEI FOIPP Act:
Alberta
FOIP
Section
1
4

Equivalent
PEI FOIPP
Act Section
1
4

Effect of specific Alberta FOIP provision
1: Defines local public body to include universities and colleges
4(1)(h) and (i): FOIP does not apply to teaching materials and
employee research information.
4(1)(n): FOIP does not apply to personal records of an appointed
or elected member of a board of governors.

17

15

The PEI FOIPP Act already states that disclosure is not an
unreasonable invasion of personal privacy if it only reveals
enrolment in a school [s. 15(2)(j)(i)]. S. 17(2)(j)(i) of the AB FOIP
adds “school or post-secondary institution”.

39

36

39(2) and (3): Post-secondary educational institutions may use
personal information in alumni records for fund-raising, unless
the individual requests the post-secondary educational
institution to discontinue this use.

40

37

40(2): Post secondary educational institutions may disclose
personal information in alumni records for fund-raising, if there
is a written agreement with the person to whom the personal
information is disclosed, to provide access and to discontinue if
requested by the individual.
40(3): Post secondary educational institutions may disclose
teaching and course evaluations to assist students in selecting
courses.

6 Page

 Solicitor-client privilege
Section 25 of the PEI FOIPP Act
states, in part:
Privileged Information
25. (1) The head of a public body
may refuse to disclose to an
applicant

What is solicitor-client privilege? The courts have given
broad protections to records created when someone
(including a public body) seeks legal advice. These
protections are based on the public policy objective of
encouraging people to be forthright with their lawyers when

(a) information that is subject to
any type of legal privilege,
including solicitor-client privilege
or parliamentary privilege;

they are seeking legal advice; legal advice is optimal if the

…

How the FOIPP Act protects solicitor-client privilege: Section

(2) The head of a public body shall
refuse to disclose information
described in clause (1)(a) that
relates to a person other than a
public body.

25 (in text box at left) permits a public body to refuse to

lawyer has all of the relevant information.

disclose to an applicant information that is the subject of
legal privilege. Solicitor-client privilege is specified as one
type of legal privilege.

What is the Issue? As with any claimed exception to disclosure, if a public body relies on
section 25 to refuse to disclose information to an applicant, and a review is requested
by the applicant, the Commissioner must decide whether the public body has properly
applied section 25 to the information. The Commissioner requires adequate evidence
to make this determination, which may require ordering production of the record
containing the information over which the section 25 exception is claimed. A problem
sometimes arises when the public body refuses to provide a copy of the record to the
Commissioner.

The Supreme Court of Canada has recently stated that the current wording of the FOIPP
Act does not give the Commissioner authority to require the public body to produce
records containing solicitor-client privileged information, to the Commissioner. The
Supreme Court interpreted provisions in Alberta’s FOIP statute, which are, in effect, the
same as PEI’s sections 25 and 53 of the FOIPP Act. The Supreme Court decided that the
7 Page

 Section 53 of the PEI FOIPP Act states,
inSection
part: 25 of the PEI FOIPP Act
states, in part:
Powers of the Commissioner in
Privileged Information
conducting
inquiries
53.
conducting
investigation
25.(1)
(1)InThe
head of aan
public
body
may refuse
disclose
under
clauseto
50(1)(a)
orto
anan
inquiry
applicant
under section 64 or in giving advice and
recommendations
under
sectionto51, the
(a) information that
is subject
Commissioner
hasprivilege,
all the powers,
any type of legal
privileges
immunitiesprivilege
of a
includingand
solicitor-client
or parliamentary
privilege;
commissioner
under
the Public Inquiries
Act R.S.P.E.I. 1988, Cap. P-31 and the
…
powers given by subsection (2).
(2) The head of a public body shall
(2)
The Commissioner
may require any
refuse
to disclose information
record
to beinproduced
to the
described
clause (1)(a)
that
Commissioner
and may
examine
relates to a person
other
than a any
public body.in a record, including
information
personal information whether or not
the record is subject to the provisions
of this Act.
(3) Despite any other enactment or any
privilege of the law of evidence, a
public body shall produce to the
Commissioner within 10 days any
record or a copy of any record required
under subsection (1) or (2).

provisions, relating to the power of the Commissioner to
compel records, are not clear enough to encompass
information over which a public body has claimed
solicitor client-privilege. It stated that solicitor-client
privilege is a substantive rule rather than merely an
evidentiary rule, so the expression “privilege of the law
of evidence” in Alberta’s equivalent to section 53(3) of
the FOIPP Act (in text box at left) does not apply to
solicitor-client privileged records.1

The lack of statutory authority to order production of
records, containing information over which a public
body has claimed solicitor-client privilege, makes it
difficult for the Commissioner to properly perform her
oversight function.

Recommendation: It is the recommendation of the
OIPC that the FOIPP Act be amended to explicitly state:


The Commissioner may require public bodies to

….

produce records containing information over which

(5) After completing a review or
investigating a complaint, the
Commissioner shall return any record
or any copy of any record produced.

solicitor-client privilege is claimed; and


Solicitor-client privilege is not waived when the

solicitor-client privileged records are provided to the
Commissioner.

1

Alberta (Information and Privacy Commissioner) v. University of Calgary, [2016] 2 SCR 555, 2016 SCC 53 (CanLII),
<http://canlii.ca/t/gvskr>, retrieved on 2017-07-25 at paragraph 44

8 Page

 Sections 19, 20, 21, and 22 of
the FOIPP Act state, in part:
Disclosure harmful to
intergovernmental relations

19. (4) This section does not
apply to information that has
been in existence in a record
for 20 years or more.
…
Cabinet Confidences
20. (2) Subsection (1) does
not apply to
(a) information in a record
that has been in existence
for 20 years or more; or
...
Public Body confidences
21. (2) Subsection (1)
does not apply if
…
(a) the information referred
to in that subsection is in a
record that has been in
existence for 20 years or
more.

Time Period Amendment
Sections 19, 20, 21, and 22 of the FOIPP Act are discretionary

exceptions to disclosure. If the circumstances outlined in
these sections apply to information requested by an
applicant, a public body may exercise its discretion to
withhold the information. All four sections contain a
provision that the exception does not apply to information in
records that have been in existence for 20 years or more.

What is the issue? The underlying rationale for these four
time limits is that the harm which could be caused from
disclosure, decreases with the passage of time. When
balanced with the goal of transparency, twenty years seems
a long period to wait.

How do we compare to other Canadian Jurisdictions? The
time limits vary for similar provisions, in access to
information legislation in other Canadian jurisdictions, from
10 to 25 years.

Advice from Officials
22. (2) Subsection (1) does
not apply to information that
(a) has been in existence for
20 years or more;

In four provincial/territorial jurisdictions, similar sections cite
a 15-year term. In three jurisdictions, the time limit is 20
years, and in one jurisdiction, 25 years. Remaining
jurisdictions cite time limits which vary from provision to
provision. For example, in British Columbia, while cabinet
confidences maintain a 15-year time limit, advice from
officials requires 10 years.

9 Page

 The federal Office of the
Information Commissioner has
stated:
“…in light of the public interest
in citizen engagement and the
government’s Open
Government commitments, the
20-year time frame included in
section 21 is unnecessarily
long. This time limit should be
reduced to provide certainty as
to when the exemption can no
longer be applied.”
Suzanne Legault,
Federal Information
Commissioner
Striking the Right Balance for
Transparency –
Recommendations to
Modernize the Access to
Information Act, page 56,
March 2015
[referring to section 21, Advice
and Recommendations]

In Alberta, the Standing Committee reviewing their FOIP
statute in November, 2010, recommended reducing the 15
year time limit for cabinet confidences, and advice from
officials, to 10 years. This amendment was not made.
Similarly, during a 2015-2016 review of British Columbia’s
FIPPA statute, the B.C. Freedom of Information and Privacy
Association, and the Centre for Law and Democracy, submitted
that the 15 year time limit for cabinet confidences be
shortened to 10 years. The reviewing Committee did not make
this recommendation. The federal Information Commissioner
has recommended reducing the time limit of the exemption for
advice and recommendations to five years or once a decision
has been made, whichever comes first (see text box at left).
A 15-year time limit for disclosure of information in these
sections of the FOIPP Act is in keeping with the trend toward
decreasing these time limits.

Recommendation: It is the recommendation of the OIPC that
sections 19(4), 20(2)(a), 21(2)(a), and 22(2)(a) of the FOIPP Act
be amended to replace the time limit of 20 years, with a time
limit of 15 years.

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 Periodic Review
Section 79 of
the PEI FOIPP
Act states:
79. A Standing
Committee of
the Legislative
Assembly shall
begin a
comprehensive
review of this
Act within 3
years after the
coming into
force of this
section and
shall submit to
the Legislative
Assembly a
report that
includes any
amendments
recommended
by the
Committee.

Currently, the only provision for review of the FOIPP Act is section 79, a
provision added in 2005 that a comprehensive review of the FOIPP Act
would be undertaken three years after the section came into force.
Limited reviews of the FOIPP Act have been undertaken, but there is
nothing in the legislation to require them.
What is the issue? There is no statutory requirement for periodic reviews
of the FOIPP Act. Access and privacy issues have proven to be dynamic.
Reviews should be performed to respond to evolving needs, and to
provide clarification.
How does PEI compare with other Canadian jurisdictions? Most
jurisdictions have a similar provision to section 79 of the FOIPP Act, to
conduct a review of the legislation within several years of the statute first
coming into force. There is a statutory requirement at section 80 of
British Columbia’s access to information and protection of privacy
legislation (FIPPA), and at section 69 of Yukon’s ATIPPA, that a review
should take place at least once every six years. Similarly, Quebec’s ATI
requires a statutory review every five years.
In a November, 2010 report reviewing Alberta’s FOIP Act, the legislative
committee recommended that a review of the Act occur every six years.

Recommendation: It is the recommendation of the OIPC that section 79 of the FOIPP Act be
replaced by the following:
Review of Act
79 (1) At least once every 6 years, a standing committee of the Legislative Assembly shall begin
a comprehensive review of this Act and shall submit a report respecting this Act to the
Legislative Assembly within one year after the date of the commencement of the review.
(2) A report submitted under subsection (1) may include any recommended amendments to
this Act.
(3) For the purposes of subsection (1), the first 6 year period begins on ______, 2017.

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