1. Introduction

The Town of Smooth Rock Falls is committed to complying with the requirements of the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M.56 and the regulations made thereunder and to implementing practices that will facilitate access to records in the Town’s custody or under its control while safeguarding the privacy of personal information.

2. Application

This policy governs Town Officials, staff, affiliates, agents and contractors and every agency, board, commission, corporation or other body whose members or officers are appointed or chosen under the authority of the Town’s council.

3. Definitions

“Consistent Purpose” means a purpose of a use or disclosure of personal information that an individual from whom Personal Information has been directly collected might reasonably have expected.

“Head” means the individual or body determined to be a head under section 4 of this policy.

“Information and Privacy Commissioner” and “Commissioner” means the Commissioner appointed under subsection 4(1) of the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31.

“Law enforcement” means,

1. policing,
2. investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, or
3. the conduct of proceedings referred to in clause (b).

“MFIPPA” means the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M.56.

“Minister” means the minister designated under section 3 of the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31, as the responsible minister for the purposes of that Act.

“Official” means a person who holds a public office or membership on a Council Committee with the Town whether obtained by election or by nomination of Council or the Town.

“Personal Information”, means recorded information about an identifiable individual including,

1. information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,
2. information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
3. any identifying number, symbol or other particular assigned to the individual,
4. the address, telephone number, fingerprints or blood type of the individual,
5. the personal opinions or views of the individual except if they relate to another individual,
6. correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,
7. the views or opinions of another individual about the individual, and
8. the individual’s name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual.

Personal Information does not include information about an individual who has been dead for more than thirty years.

“Record” means any record of information however recorded, whether in printed form, on film, by electronic means or otherwise, and includes,

1. correspondence, a memorandum, a book, a plan, a map, a drawing, a diagram, a pictorial or graphic work, a photograph, a film, a microfilm, a sound recording, a videotape, a machine readable record, any other documentary material, regardless of physical form or characteristics, and any copy thereof, and
2. subject to the regulations, any record that is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution.

“Town” means the Town of Smooth Rock Falls,

4. Accountability

The accountability guidelines set out in this Section 4 have been established to facilitate the Town’s compliance with MFIPPA.

4.1. Designation of Head

The members of Town’s Council may designate from among themselves an individual or Council committee to act as Head of the Town for the purposes of MFIPPA. This designation shall be enacted by by-law. If the Town’s Council does not so designate a Head, the Head shall be the Town’s Council.

4.2. Responsibilities of the Head

The responsibilities of the Head include, but are not necessarily limited to:

• adhering to time limits and notification requirements under MFIPPA;
• considering representations from third parties;
• providing a response to access requests;
• determining the method of disclosure;
• responding to requests for correction of personal information;
• calculating and collecting fees;
• providing access by the public to manuals and guidelines prepared by the Town;
• where necessary, defending decisions made under MFIPPA at an appeal; and
• administering the privacy protection provisions of MFIPPA.

4.3. Delegation by Head

Notwithstanding that the Head shall be accountable for the Town’s compliance with MFIPPA, the Head may delegate some or all of the Head’s powers and duties under MFIPPA to the CAO or other senior member of the Town’s staff in writing subject to limitations, restrictions or conditions placed on the delegation by the Head.

4.4. Conflicts of Interest

A conflict of interest may exist where the Head (or delegate) knows they have a private interest that is sufficiently connected to their powers and duties under MFIPPA to influence those powers and duties. The focus for conflict of interest is frequently financial matters. It may also arise when the Head (or delegate) is meeting their decision-making responsibilities under MFIPPA.

The Head (or delegate) may be in a conflict of interest situation where it is reasonable to assume that they are making decisions based on their personal interest rather than the public interest. In some instances, the conflict of interest may be more apparent than real. All delegations of the Head’s powers and duties under MFIPPA shall reflect the possibility of conflict of interest and provide for alternate decision-makers in those instances.

5. Personal Information Practices

5.1. Notice of Collection of Personal Information

When Personal Information is collected, the Town shall provide notice stating:

1. the legal authority for the collection;
2. the reason for the collection;
3. how the information is to be used; and
4. who to contact for more information.

Notice may be given either orally – in person, over the telephone, or in writing – on an application form, on, a posted sign, on the Town’s website or in any other manner which informs the individual about the collection.

The foregoing does not apply if:

1. the head (or delegate) may refuse to disclose the Personal Information under subsection 8(1) or (2) of MFIPPA (law enforcement), section 8.1 (Civil Remedies act, 2001) or section 8.2 (Prohibiting Profiting from Recounting Crimes Act, 2002);
2. the Minister waives the notice; or
3. under any of the following circumstances, if the head (or delegate) makes available for public inspection a statement describing the purpose of the collection of personal information and the reason notice has not been given:
   1. providing the notice would frustrate the purpose of the collection;
   2. providing notice might result in an unjustifiable invasion of another individual’s privacy; or
   3. the collection is for the purpose of determining suitability for an award or honour

5.2. Manner of Collection of Personal Information

The Town collects Personal Information directly from the individual to whom the information relates unless,

1. the individual authorizes another manner of collection;
2. the Personal Information may be disclosed to the Town under section 32 or under section 42 of the Freedom of Information and Protection of Privacy Act;
3. the Commissioner has authorized the manner of collection under clause 46 (c);
4. the information is in a report from a reporting agency in accordance with the Consumer Reporting Act;
5. the information is collected for the purpose of determining suitability for an honour or award to recognize outstanding achievement or distinguished service;
6. the information is collected for the purpose of the conduct of a proceeding or a possible proceeding before a court or judicial or quasi-judicial tribunal;
7. the information is collected for the purpose of law enforcement; or
8. another manner of collection is authorized by or under a statute.

5.3. Use of Personal Information

The Town may only use Personal Information if:

1. the individual consents to its use;
2. it is used only for the reason for which it was collected or a Consistent Purpose; or
3. for a purpose for which the information may be disclosed under this Policy.

5.4. Disclosure of Personal Information

The circumstances in which the Town may disclose Personal Information include:

1. where the individual to whom the information relates has consented to the disclosure;
2. for the purpose for which it was obtained or a Consistent Purpose;
3. if the disclosure is made to an officer, employee, consultant or agent of the Town who needs the record in the performance of their duties and if the disclosure is necessary and proper in the discharge of the Towns functions;
4. to comply with legislation, a court order or subpoena or to aid in a law enforcement investigation conducted by a law enforcement agency;
5. in compelling circumstances affecting the health or safety of an individual (provided that notice of the disclosure is mailed to the last known address of the individual to whom the information relates);
6. in compassionate circumstances, to facilitate contact with the next of kin or a friend of an individual who is injured ill or deceased;
7. to the Minister;
8. to the Information and Privacy Commissioner; and
9. to the Government of Canada in order to facilitate the auditing of shared cost programs.

5.5. Retention of Personal Information

The Town shall retain the personal information it collects in accordance with regulations made under MFIPPA which provide that municipalities must keep all personal information for at least one year, unless:

1. a shorter retention schedule is established by means of a by-law or resolution passed by the Town’s Council;
2. the individual to whom the information relates consented to an earlier disposal; or
3. the information is credit or debit card payment data.

5.6. Safeguards

To prevent unauthorized access, maintain data accuracy, and ensure the correct use of personal information, the Town has put in place appropriate physical, electronic, and managerial procedures to safeguard and secure the personal information the Town collects.

5.7. Personal Information Access and Correction Rights

Every individual has a right to request: (1) access to their personal information under the custody or control of the Town; and (2) correction of their personal information under the custody or control of the Town that is incorrect and incomplete. Town staff can assist individuals with the correction of their personal information.

6. Access to Records

Every person has a right of access to a Record or part of a Record in the custody or under the control of the Town unless:

1. The Record or part of the record falls within one of the exemptions set out in section 6.2 of this policy; or
2. the Head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.

6.1. Exemptions

Under MFIPPA there are two types of exemptions that affect the right of access to a Record or part of a Record in the custody or under the control of the Town; mandatory and discretionary.

6.1.1.   Mandatory Exemptions

Mandatory exemptions require the Head to refuse to disclose a record. They include, but are not necessarily limited to, Records that reveal:

• information the Town has received in confidence without consent to its disclosure from the Government of Canada or Ontario, the government of a foreign country or state, an agency of one of the foregoing, or an international organization of state of a body of such an organization;
• a trade secret or scientific, technical, commercial, financial or labour relations information supplied in confidence if the information could prejudice the third party’s interests.
• Personal Information about individuals other than the requester except in certain circumstances such as those affecting the health or safety of an individual or where the disclosure does not constitute an unjustified invasion of personal privacy.

6.1.2.   Discretionary Exemptions

Discretionary exemptions require the Head to exercise judgment when determining whether to disclose a Record. They include, but are not necessarily limited to, Records that:

• contain draft by-laws, draft private bills or that reveal the substance of deliberations of closed meetings where such meetings are authorized by statute;
• advice or recommendations of Town staff and consultants.
• would interfere with law enforcement matters;
• contain specified information belonging to the Town having monetary value or that would prejudice the commercial interests of the Town;
• contain solicitor-client privileged information
• could reasonably be expected to threaten the safety or health of an individual;
• contain information that is publicly available, published, or soon to be published.

6.2. Access Procedure

A person seeking to access a Record shall,

1. make a written request to the Town;
2. provide sufficient detail to enable and experienced member of the Town’s staff to identify the Record using reasonable efforts; and
3. at the time of making the request pay a fee of $5 or such other fee as may be prescribed regulation.

6.2.1. Request to be Forwarded

If the Town receives a request and the Head determines the Town does not have the Record in its custody or under its control, the Head shall make reasonable inquiries to determine whether another institution has the Record in its custody or under its control and, if the Head determines this to be the case, the Head shall forward the request to that institution within 15 days of receiving the request. In such circumstances the Head shall give written notice of the forwarding to the person who made the request.

6.2.2. Transfer of Request

If the Town receives a request for access to a Record and the Head considers that the Record was originally produced by another institution or that another institution was the first to receive the record or a copy of it, the Head may transfer the request and, if necessary, the Record to the other institution within 15 days after the request is received. In such circumstances the Head shall give written notice of the transfer to the person who made the request.

6.2.3. Notice by Head

The Head shall, with 30 days of receiving the request, give written notice to a person requesting a record whether access to the Record or part of it shall be given and, if so, the Head shall give the person access to the Record or part, or if necessary for the purpose, have the Record produced.

The Head may extent the above-noted time limit for a reasonable period if the request is for a large number of Records and meeting the time limit would unreasonably interfere with the Town’s operations or if the request necessitates consultations with outside persons and such consultations cannot reasonably be completed within the time limit.

Where a request relates to information affecting the interests of a third party, the third party shall be given notice about the request including a description of the contents of the Record and a statement that within 20 days they may make representations to the Head about why the Record or part should not be disclosed. The Head shall make a decision about disclosure and provide notice to the requester and third party within 30 days of the request being received, but not before the earliest of, the day the response from the third party is received or 21 days after the notice is given to the third party.

Where the decision is:

1. to disclose, the notice shall state that the third party may appeal the decision to the Commissioner within 30 days and that the Record or part will be provided to the requester unless an appeal is so commenced;
2. not to disclose, the notice shall set out that:
   1. there is no such Record and the requester can appeal to the Commissioner the question of whether the Record exists; or
   2. that there is such Record, the refusal is based on a specific provision of MFIPPA, how such provision applies, the name of the person responsible for making the decision, and that an appeal may be made to the Commissioner to review the decision.

7. Payment of Fees

The Head shall require those requesting access or disclosure to Records to pay fees for the costs of searching for and preparing the Records, computer and other costs associated with process and copying Records; shipping costs; and any other costs incurred in responding to a request for access to a record.

An estimate shall be provided to the requester where the fee required to be paid is over $25.If the estimate is more than $100, the Head may require the requestor pay a 50% deposit of the estimate before the Head takes any further steps to respond to the request.

Fees may be waived by the Head if, in the Head’s opinion, it is fair and equitable to do so.

8. Appeals to the Commissioner

An individual making an appeal to the Commissioner of an access or disclosure decision must pay the fee prescribed in the regulations made under MFIPPA and file with the IPC written notice of the appeal within thirty days after receiving the decision. The written notice to the appeal must include a copy of the decision and a copy of the access request made to the Town.

9. Policy Contraventions

Town staff found to have contravened this policy shall be dealt with in accordance with the applicable Town policy governing their discipline.

Effective Date: November, 2017
Revision History: Version 1
Related Documents: Municipal Freedom of Information and Protection of Privacy Act RRO 1990, Reg 823