Ombudsman concerned about access to information bill

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This article was published 17/4/2021 (235 days ago), so information in it may no longer be current.

MANITOBA’S ombudsman has written a six-page letter to the government expressing concern that pending legislation will make accessing information more difficult.

In a letter to Legislative and Public Affairs Minister Kelvin Goertzen, ombudsman Jill Perron said Bill 49 (The Freedom of Information and Protection of Privacy Amendment Act) "will have significant practical implications for the access and privacy rights of Manitobans."

"One of the main purposes of access to information legislation is to provide transparency so that people can see and understand the actions and decisions of government," the April 14 letter said. "The presumption is that government information is open to citizens unless it is subject to limited and specific exceptions to disclosure."

The independent officer, who oversees information and privacy legislation, listed examples of how Bill 49 could thwart Manitobans’ right to access information and what needs to be amended.

It increases the deadline for a response to an access request for general and personal information to up to 90 days from the current limit of 30 days. That would be the longest wait allowed in Canada, she wrote.

Delaying the response time fails "to acknowledge that some citizens may need timely access to their own information in order to make informed decisions that affect their lives," the ombudsman said.

"Often, citizens seek access to municipal records to help them understand local issues and enable their participation in local issues, particularly where there is a financial impact to the citizen."

The bill expands the grounds for disregarding or extending the timeline for a response to a request for access. It would allow a public agency to refuse a request deemed "unduly repetitive or systematic" or "excessively broad."

That could, the ombudsman wrote, put an applicant in a catch 22 situation: if their request is too broad, it will be disregarded, but if they break it down into smaller requests, it’s deemed unduly repetitive or systematic.

Not having proper records management, efficient processes and adequate resources could also be used as the basis for disregarding a request if it’s seen to "interfere with operations," the letter said.

Bill 49 expands the basis for refusing access to information to anything subject to solicitor-client privilege, litigation privilege as well as any other "legal privilege."

The ombudsman — who has the authority to ensure there’s compliance with freedom of information legislation by reviewing the decisions of public bodies and reviewing citizen complaints — called for clarity regarding what is meant by "legal privilege."

The vaguely worded provision may not be a well-supported reason to refuse a request for information, she said, and it could end up costing both the public body and the ombudsman time and money to determine whether the refusal is legitimate.

The ombudsman expressed concern that in a rapidly changing, high-tech world, the period of review for FIPPA legislation would be increased to 10 years from the current mandatory review held every five years.

"As advanced technologies, such as machine learning and artificial intelligence become more prominent in the provision of public services, it is imperative that the legislation be reviewed to ensure the privacy protection over personal health information is at a level that citizens expect."

Bill 49 has received second reading, been reviewed by committee but has not yet been passed.

"Since the consultation process on the state of FIPPA started in 2017, recommendations were raised by the Ombudsman and others. This consultation continued through the development and committee review of this bill. Bill 49 was further modified to address items raised by the Ombudsman, specifically cutting the time frame review from 10 years to 5 and reducing the extension period provided for in the bill from 45 to 30 days. We thank the Ombudsman for her comments to improve the bill for all Manitobans," Kelvin Goertzen, minister of legislative and public affairs, said through a spokesperson. 

carol.sanders@freepress.mb.ca