Fourth Session, 47th

General Assembly

64 Elizabeth II,

BILL 1

AN ACT TO PROVIDE THE

PUBLIC WITH ACCESS TO INFORMATION AND PROTECTION OF PRIVACY

Received and Read the First Time ..................................................................

Second Reading .............................................................................................

Committee ......................................................................................................

Third Reading ................................................................................................

Royal Assent ..................................................................................................

HONOURABLE STEVE

KENT

Minister of Health and Community Services and

Minister Responsible for the Office of Public Engagement

Ordered to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would revise the law

respecting access to records and protection of personal information held by

public bodies. The Bill would maintain the ombuds model for access and personal

information protection but give the commissioner decision-making power in

certain procedural matters. With respect to access to a record or correction of

personal information, the Bill would

provide a public interest

override for specified discretionary exceptions to access;

require anonymity in most

requests;

require the access and privacy

coordinator to be the only person on behalf of a public body to communicate

with an applicant or third party;

enable disclosure of datasets;

require the commissioners

approval before a public body disregards a request;

provide for extensions of time

beyond 20 business days only where approved by the commissioner, whose decision

is final;

eliminate application fees and

reduce the costs to access records, with disputes respecting an estimate or

waiver of costs to be determined by the commissioner, whose decision is final;

remove the mandatory exemption

from disclosure of briefing materials created for ministers assuming new

portfolios or preparing for a sitting of the House of Assembly;

revise the exceptions to access

in the provisions respecting cabinet confidences, policy advice or recommendations,

legal advice, information from a workplace investigation, third party business

interests, disclosure harmful to personal privacy, and disclosure of statutory

office records;

provide for and require a more

expeditious complaint and investigation process;

allow a third party to complain

to the commissioner or commence an appeal directly in the Trial Division of a

public bodys decision to disclose the third partys business information or

personal information to an applicant;

where the commissioner

recommends access to a record or correction of personal information, require

the head of a public body either to comply with the commissioners

recommendation or seek a declaration in the Trial Division that the head is not

required by law to comply; and

enable the commissioner to file

an order of the court in the circumstances where the head of a public body

fails to comply with the commissioners recommendation to grant access to a

record or make a correction to personal information or fails to seek a

declaration.

With respect to privacy, the Bill

would

require public bodies to notify

affected individuals of a privacy breach that creates a risk of significant

harm to the individual and to report all privacy breaches to the commissioner;

require government departments

to prepare privacy impact assessments during the development of programs or

services unless a preliminary assessment of the program or service indicates a

full assessment is not necessary;

provide for privacy

investigations on the commissioners own motion or on receipt of a complaint by

an individual or by a representative of a group of individuals;

require the commissioner to

prepare a report following a privacy investigation and require the head of a

public body to respond to that report, and enable certain recommendations to be

filed as orders of the court;

where the commissioner

recommends that a public body stop collecting, using or disclosing personal

information in contravention of the Act or destroy personal information

collected in contravention of the Act, require the head of a public body either

to comply with the commissioners recommendation or seek a declaration in the

Trial Division that the head is not required by law to comply; and

provide for an order that the

Trial Division may make.

The Bill would strengthen the role of

the Office of the Information and Privacy Commissioner as an advocate for

access and protection of personal information. The Bill would

provide an appointment process,

term and salary that supports the independence of the commissioner;

give the commissioner the power

to review cabinet records, solicitor-client privileged records and other

records in the custody or under the control of a public body, except for some

of the records to which the Act does not apply;

give the commissioner the power

to carry out investigations and audits and make special reports to the House of

Assembly; and

require the commissioner to

create a standard template for the publication of information by public bodies

and to review proposed Bills that could have implications for access to

information and protection of privacy.

The Bill would make further changes

expand the application of the

Act to corporations and other entities that are owned by or created by or for municipalities;

and

strengthen the offence

provision.

A BILL

AN ACT TO PROVIDE THE PUBLIC WITH ACCESS TO

INFORMATION AND PROTECTION OF PRIVACY

Analysis

Short title

PART

INTERPRETATION

Definitions

Purpose

Schedule of excluded public bodies

Application

Relationship to Personal Health

Information Act

Conflict with other Acts

PART

ACCESS AND CORRECTION

DIVISION

THE REQUEST

Right of access

Public interest

Right to request correction of personal

information

Making a request

Anonymity

Duty to assist applicant

Transferring a request

Advisory response

Time limit for final response

Content of final response for access

Content of final response for correction

of personal information

Third party notification

Provision of information

Disregarding a request

Published material

Extension of time limit

Extraordinary circumstances

Costs

Estimate and waiver of costs

DIVISION

EXCEPTIONS TO ACCESS

Cabinet confidences

Local public body confidences

Policy advice or recommendations

Legal advice

Disclosure harmful to law enforcement

Confidential evaluations

Information from a workplace

investigation

Disclosure harmful to intergovernmental

relations or negotiations

Disclosure harmful to the financial or

economic interests of a public body

Disclosure harmful to conservation

Disclosure harmful to individual or

public safety

Disclosure harmful to labour relations

interests of public body as employer

Disclosure harmful to business interests

of a third party

Disclosure harmful to personal privacy

Disclosure of House of Assembly service

and statutory office records

DIVISION

COMPLAINT

Access or correction complaint

Burden of proof

Investigation

Authority of commissioner not to

investigate a complaint

Time limit for formal investigation

Recommendations

Report

Response of public body

Head of public body seeks declaration in

court

Filing an order with the Trial Division

DIVISION

APPEAL TO THE TRIAL DIVISION

Direct appeal to Trial Division by an

applicant

Direct appeal to Trial Division by a

third party

Appeal of public body decision after

receipt of commissioners recommendation

No right of appeal

Procedure on appeal

Practice and procedure

Solicitor and client privilege

Conduct of appeal

Disposition of appeal

PART

III

PROTECTION OF PERSONAL INFORMATION

DIVISION

COLLECTION, USE AND DISCLOSURE

Purpose for which personal information

may be collected

How personal information is to be

collected

Accuracy of personal information

Protection of personal information

Retention of personal information

Use of personal information

Use of personal information by post-secondary

educational bodies

Disclosure of personal information

Definition of consistent purposes

Disclosure for research or statistical

purposes

Disclosure for archival or historical

purposes

Privacy impact assessment

DIVISION

PRIVACY COMPLAINT

Privacy complaint

Investigation privacy complaint

Authority of commissioner not to

investigate a privacy complaint

Recommendations privacy complaint

Report privacy complaint

Response of public body privacy

complaint

Head of public body seeks declaration in

court

Filing an order with the Trial Division

DIVISION

APPLICATION TO THE TRIAL DIVISION FOR A DECLARATION

Practice and procedure

Solicitor and client privilege

Conduct

Disposition

PART

OFFICE AND POWERS OF THE INFORMATION AND PRIVACY COMMISSIONER

DIVISION

OFFICE

Appointment of the Information and

Privacy Commissioner

Status of the commissioner

Term of office

Removal or suspension

Acting commissioner

Salary, pension and benefits

Expenses

Commissioner's staff

Oath of office

Oath of staff

DIVISION

POWERS OF THE COMMISSIONER

General powers and duties of

commissioner

Representation during an investigation

Production of documents

Right of entry

Admissibility of evidence

Privilege

Section 8.1 of the Evidence Act

Disclosure of information

Delegation

Protection from liability

Annual report

Special report

Report investigation or audit

PART

GENERAL

Exercising rights of another person

Designation of head by local public body

Designation and delegation by the head

of a public body

Publication scheme

Amendments to statutes and regulations

Report of minister responsible

Limitation of liability

Offence

Regulations

Review

Transitional

SNL2013 cA-3.1 Amdt.

SNL1991 c22 Amdt.

RSNL1990 cC-2 Amdt.

SNL2004 cC-5.1 Amdt.

SNL2010 cC-12.2 Amdt.

SNL2001 cC-14.1 Amdt.

SNL2007 cE-11.01 Amdt.

SNL1995 cP-37.1 Amdt.

RSNL1990 cH-10 Amdt.

SNL2007cH-10.1 Amdt.

SNL1999 cM-5.1 Amdt.

SNL2014 cM-16.2 Amdt.

SNL2008 cP-7.01 Amdt.

SNL2008 cR-13.1 Amdt.

SNL2014 c23 Amdt.

SNL2005 cR-15.1 Amdt.

SNL2009 cV-6.01 Amdt.

Repeal

Commencement

Schedule

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Access to

Information and Protection of Privacy Act, 2015 .

PART I

INTERPRETATION

Definitions

2. In this Act

(a) "applicant" means a person who makes

a request under

section 11 for access to a

record, including a record containing personal information about the person, or

for correction of personal information;

(b) "business day" means a day that is

not a Saturday, Sunday or a holiday;

(c) "Cabinet" means the executive

council appointed under the Executive

Council Act , and includes a committee of the executive council;

(d) "commissioner" means the Information

and Privacy Commissioner appointed under

section 85 ;

(e) "complaint" means a complaint filed

under

section 42 ;

(f) "coordinator" means the person

designated by the head of the public body as coordinator under subsection 110 (1);

(g) "dataset" means information

comprising a collection of information held in electronic form where all or

most of the information in the collection

(

i) has been obtained or recorded for the purpose

of providing a public body with information in connection with the provision of

a service by the public body or the carrying out of another function of the

public body,

(ii) is factual information

(

A) which is not the product of analysis or

interpretation other than calculation, and

(

B) to which

section 13 of the Statistics Agency Act does not apply,

and

(iii) remains presented in a way that, except for

the purpose of forming part of the collection, has not been organized, adapted

or otherwise materially altered since it was obtained or recorded;

(h) "educational body" means

(

i) Memorial

University of Newfoundland ,

(ii) College of the North

Atlantic ,

(iii) Centre for Nursing Studies,

(iv) Western

Regional School

of Nursing,

(

v) a school board, school district constituted or

established under the Schools Act, 1997, including

the conseil scolaire francophone, and

(vi) a body designated as an educational body in

the regulations made under

section 116 ;

(i) "employee", in relation to a public

body, includes a person retained under a contract to perform services for the

public body;

(j) "head", in relation to a public

body, means

(

i) in the case of a department, the minister who

presides over it,

(ii) in the case of a corporation, its chief

executive officer,

(iii) in the case of an unincorporated body, the

minister appointed under the Executive

Council Act to administer the Act under which the body is established, or

the minister who is otherwise responsible for the body,

(iv) in the case of the House of Assembly the Speaker

and in the case of the statutory offices as defined in the House of Assembly Accountability, Integrity and Administration Act , the applicable officer of each

statutory office, or

(

v) in another case, the person or group of

persons designated under

section 109 or in the

regulations as the head of the public body;

(k) "health care body" means

(

i) an authority as defined in the Regional Health Authorities Act ,

(ii) the Mental Health Care and Treatment Review

Board,

(iii) the Newfoundland

and Labrador Centre for Health Information, and

(iv) a body designated as a health care body in the

regulations made under

section 116 ;

(l) "House of Assembly Management

Commission" means the commission continued under

section 18 of the House of Assembly Accountability, Integrity

and Administration Act ;

(m) "judicial administration record"

means a record containing information relating to a judge, master or justice of

the peace, including information respecting

(

i) the scheduling of judges, hearings and trials,

(ii) the content of judicial training programs,

(iii) statistics of judicial activity prepared by or

for a judge,

(iv) a judicial directive, and

(

v) a record of the Complaints Review Committee or

an adjudication tribunal established under the Provincial Court Act, 1991 ;

(n) "law enforcement" means

(

i) policing, including criminal intelligence

operations, or

(ii) investigations, inspections or proceedings

conducted under the authority of or for the purpose of enforcing an enactment

which lead to or could lead to a penalty or sanction being imposed under the

enactment;

(o) "local government body" means

(

i) the City of Corner Brook ,

(ii) the City of Mount Pearl ,

(iii) the City of St. Johns ,

(iv) a municipality as defined in the Municipalities Act, 1999 , and

(

v) a body designated as a local government body

in the regulations made under

section 116 ;

(p) "local public body" means

(

i) an educational body,

(ii) a health care body, and

(iii) a local government body;

(q) "minister" means a member of the

executive council appointed under the Executive

Council Act ;

(r) "minister responsible for this Act"

means the minister appointed under the Executive

Council Act to administer this Act;

(s) "officer of the House of Assembly"

means the Speaker of the House of Assembly, the Clerk of the House of Assembly,

the Chief Electoral Officer, the Auditor General of Newfoundland and Labrador,

the Commissioner for Legislative Standards, the Citizens' Representative, the

Child and Youth Advocate and the Information and Privacy Commissioner, and a

position designated to be an officer of the House of Assembly by the Act

creating the position;

(t) "person" includes an individual,

corporation, partnership, association, organization or other entity;

(u) "personal information" means

recorded information about an identifiable individual, including

(

i) the individual's name, address or telephone

number,

(ii) the individual's race, national or ethnic

origin, colour, or religious or political beliefs or associations,

(iii) the individual's age, sex, sexual orientation,

marital status or family status,

(iv) an identifying number, symbol or other

particular assigned to the individual,

(

v) the individual's fingerprints, blood type or

inheritable characteristics,

(vi) information about the individual's health care

status or history, including a physical or mental disability,

(vii) information about the individual's

educational, financial, criminal or employment status or history,

(viii) the opinions of a person about the individual,

and

(ix) the individual's personal views or opinions,

except where they are about someone else;

(v) "privacy complaint" means a privacy

complaint filed under subsection 73 (1) or

(2) or an investigation initiated on the commissioners own motion under subsection

73 (3);

(w) "privacy impact assessment" means an

assessment that is conducted by a public body as defined under subparagraph

(x)(

i) to determine if a current or proposed program or service meets or will

meet the requirements of

Part III of this Act;

(x) "public body" means

(

i) a department created under the Executive

Council Act , or a branch of the executive government of the province,

(ii) a corporation, the ownership of which, or a

majority of the shares of which is vested in the Crown,

(iii) a corporation, commission or body, the

majority of the members of which, or the majority of members of the board of

directors of which are appointed by

an Act, the Lieutenant-Governor in Council

or a minister,

(iv) a local public body,

(

v) the House of Assembly and statutory offices,

as defined in the House of Assembly

Accountability, Integrity and Administration Ac t , and

(vi) a corporation or other entity owned by or

created by or for a local government body or group of local government bodies,

which has as its primary purpose the management of a local government asset or

the discharge of a local government responsibility,

and includes a body designated for this

purpose in the regulations made under

section 116 ,

but does not include

(vii) the constituency office of a member of the

House of Assembly wherever located,

(viii) the Court of Appeal, the Trial Division, or

the Provincial Court ,

(ix) a body listed in

Schedule B;

(y) "record" means a record of

information in any form, and includes a dataset, information that is machine

readable, written, photographed, recorded or stored in any manner, but does not

include a computer program or a mechanism that produced records on any storage

medium;

(z) "remuneration" includes salary,

wages, overtime pay, bonuses, allowances, honorariums, severance pay, and the aggregate

of the contributions of a public body to pension, insurance, health and other

benefit plans;

(aa) "request" means a request made under

section 11 for access to a record, including a

record containing personal information about the applicant, or correction of

personal information, unless the context indicates otherwise;

(bb) "Schedule B" means the

schedule of

bodies excluded from the definition of public body; and

(cc) "third party", in relation to a

request for access to a record or for correction of personal information, means

a person or group of persons other than

(

i) the person who made the request, or

(ii) a public body.

Purpose

(1) The purpose of this Act is to

facilitate democracy through

(

a) ensuring that citizens have the information

required to participate meaningfully in the democratic process;

(

b) increasing transparency in government and

public bodies so that elected officials, officers and employees of public bodies

remain accountable; and

(

c) protecting the privacy of individuals with

respect to personal information about themselves held and used by public bodies.

(2) The purpose is to be achieved by

(

a) giving the public a right of access to

records;

(

b) giving individuals a right of access to, and a

right to request correction of, personal information about themselves;

(

c) specifying the limited exceptions to the

rights of access and correction that are necessary to

(

i) preserve the ability of government to function

efficiently as a cabinet government in a parliamentary democracy,

(ii) accommodate established and accepted rights

and privileges of others, and

(iii) protect from harm the confidential proprietary

and other rights of third parties;

(

d) providing that some discretionary exceptions

will not apply where it is clearly demonstrated that the public interest in

disclosure outweighs the reason for the exception;

(

e) preventing the unauthorized collection, use or

disclosure of personal information by public bodies; and

(

f) providing for an oversight agency that

(

i) is an advocate for access to information and

protection of privacy,

(ii) facilitates timely and user friendly

application of this Act,

(iii) provides independent review of decisions made

by public bodies under this Act,

(iv) provides independent investigation of privacy

complaints,

(

v) makes recommendations to government and to

public bodies as to actions they might take to better achieve the objectives of

this Act, and

(vi) educates the public and public bodies on all

aspects of this Act.

(3) This Act does not replace other procedures for

access to information or limit access to information that is not personal

information and is available to the public.

Schedule of excluded

public bodies

4. When the House of Assembly is not in session, the

Lieutenant-Governor in Council, on the recommendation of the House of Assembly

Management Commission, may by order amend

Schedule B, but the order shall not

continue in force beyond the end of the next sitting of the House of Assembly.

Application

(1) This Act applies to all records in the

custody of or under the control of a public body but does not apply to

(

a) a record in a court file, a record of a judge

of the Court of Appeal, Trial Division, or Provincial Court, a judicial administration

record or a record relating to support services provided to the judges of those

courts;

(

b) a note, communication or draft decision of a

person acting in a judicial or quasi-judicial capacity;

(

c) a personal or constituency record of a member

of the House of Assembly, that is in the possession or control of the member;

(

d) records of a registered political party or

caucus as defined in the House of

Assembly Accountability, Integrity and Administration Act ;

(

e) a personal or constituency record of a

minister;

(

f) a record of a question that is to be used on

an examination or test;

(

g) a record containing teaching materials or

research information of an employee of a post-secondary educational institution;

(

h) material placed in the custody of the

Provincial Archives of Newfoundland and Labrador

by or for a person other than a public body;

(

i) material placed in the archives of a public

body by or for a person other than the public body;

(

j) a record relating to a prosecution if all

proceedings in respect of the prosecution have not been completed;

(

k) a record relating to an investigation by the

Royal Newfoundland Constabulary if all matters in respect of the investigation

have not been completed;

(

l) a record relating to an investigation by the

Royal Newfoundland Constabulary that would reveal the identity of a confidential

source of information or reveal information provided by that source with

respect to a law enforcement matter; or

(

m) a record relating to an investigation by the

Royal Newfoundland Constabulary in which suspicion of guilt of an identified person

is expressed but no charge was ever laid, or relating to prosecutorial

consideration of that investigation.

(2) This Act

(

a) is in addition to existing procedures for

access to records or information normally available to the public, including a

requirement to pay fees;

(

b) does not prohibit the transfer, storage or

destruction of a record in accordance with

an Act of the province or Canada

or a by-law or resolution of a local public body;

(

c) does not limit the information otherwise

available by law to a party in a legal proceeding; and

(

d) does not affect the power of a court or

tribunal to compel a witness to testify or to compel the production of a

document.

Relationship to Personal Health Information Act

(1) Notwithstanding

section 5 , but except as provided in sections 92 to 94 , this Act

and the regulations shall not apply and the Personal

Health Information Act and regulations under that Act shall apply where

(

a) a public body is a custodian; and

(

b) the information or record that is in the

custody or control of a public body that is a custodian is personal health

information.

(2) For the purpose of this section,

"custodian" and "personal health information" have the

meanings ascribed to them in the Personal

Health Information Act .

Conflict with

other Acts

(1) Where there is a conflict between this

Act or a regulation made under this Act and another Act or regulation enacted

before or after the coming into force of this Act, this Act or the regulation

made under it shall prevail.

(2) Notwithstanding subsection (1), where access

to a record is prohibited or restricted by, or the right to access a record is

provided in a provision designated in

Schedule A, that provision shall prevail

over this Act or a regulation made under it.

(3) When the House of Assembly is not in session,

the Lieutenant-Governor in Council may by order amend

Schedule A, but the order

shall not continue in force beyond the end of the next sitting of the House of

Assembly.

PART II

ACCESS AND CORRECTION

DIVISION 1

THE REQUEST

Right of access

(1) A person who makes a request under

section 11 has a right of access to a record in

the custody or under the control of a public body, including a record

containing personal information about the applicant.

(2) The right of access to a record does not

extend to information excepted from disclosure under this Act, but if it is

reasonable to sever that information from the record, an applicant has a right

of access to the remainder of the record.

(3) The right of access to a record may be subject

to the payment, under

section 25 , of the costs

of reproduction, shipping and locating a record.

Public interest

(1) Where the head of a public body may

refuse to disclose information to an applicant under a provision listed in

subsection (2), that discretionary exception shall not apply where it is

clearly demonstrated that the public interest in disclosure of the information

outweighs the reason for the exception.

(2) Subsection (1) applies to the following

sections:

(

a) section 28

(local public body confidences);

(

b) section 29

(policy advice or recommendations);

(c) subsection 30 (1)

(legal advice);

(

d) section 32

(confidential evaluations);

(

e) section 34

(disclosure harmful to intergovernmental relations or negotiations);

(

f) section 35

(disclosure harmful to the financial or economic interests of a public body);

(

g) section 36

(disclosure harmful to conservation); and

(

h) section 38

(disclosure harmful to labour relations interests of public body as employer).

(3) Whether or not a request for access is made,

the head of a public body shall, without delay, disclose to the public, to an

affected group of people or to an applicant, information about a risk of significant

harm to the environment or to the health or safety of the public or a group of

people, the disclosure of which is clearly in the public interest.

(4) Subsection (3) applies notwithstanding a

provision of this Act.

(5) Before disclosing information under subsection

(3), the head of a public body shall, where practicable, give notice of disclosure

in the form appropriate in the circumstances to a third party to whom the

information relates.

Right to request

correction of personal information

(1) An individual who believes there is an

error or omission in his or her personal information may request the head of

the public body that has the information in its custody or under its control to

correct the information.

(2) A cost shall not be charged for a request for

correction of personal information or for a service in response to that request.

Making a request

(1) A person may access a record or seek a

correction of personal information by making a request to the public body that

the person believes has custody or control of the record or personal information.

(2) A request shall

(

a) be in the form set by the minister responsible

for this Act;

(

b) provide sufficient details about the

information requested so that an employee familiar with the records of the

public body can identify and locate the record containing the information with

reasonable efforts; and

(

c) indicate how and in what form the applicant

would prefer to access the record.

(3) An applicant may make an oral request for

access to a record or correction of personal information where the applicant

(

a) has a limited ability to read or write

(

b) has a disability or condition that impairs his

or her ability to make a request.

(4) A request under subsection (2) may be

transmitted by electronic means.

Anonymity

(1) The head of a public body shall ensure

that the name and type of the applicant is disclosed only to the individual who

receives the request on behalf of the public body, the coordinator, the coordinators

assistant and, where necessary, the commissioner.

(2) Subsection (1) does not apply to a request

(

a) respecting personal information about the

applicant; or

(

b) where the name of the applicant is necessary

to respond to the request and the applicant has consented to its disclosure.

(3) The disclosure of an applicants name in a

request referred to in subsection (2) shall be limited to the extent necessary

to respond to the request.

(4) The limitation on disclosure under subsection

(1) applies until the final response to the request is sent to the applicant.

Duty to assist

applicant

(1) The head of a public body shall make

every reasonable effort to assist an applicant in making a request and to

respond without delay to an applicant in an open, accurate and complete manner.

(2) The applicant and the head of the public body

shall communicate with one another under this Part through the coordinator.

Transferring a

request

(1) The head of a public body may, upon

notifying the applicant in writing, transfer a request to another public body

not later than 5 business days after receiving it, where it appears that

(

a) the record was produced by or for the other

public body; or

(

b) the record or personal information is in the

custody of or under the control of the other public body.

(2) The head of the public body to which a request

is transferred shall respond to the request, and the provisions of this Act

shall apply, as if the applicant had originally made the request to and it was

received by that public body on the date it was transferred to that public body.

Advisory response

(1) The head of a public body shall, not

more than 10 business days after receiving a request, provide an advisory

response in writing to

(

a) advise the applicant as to what will be the

final response where

(

i) the record is available and the public body is

neither authorized nor required to refuse access to the record under this Act,

(ii) the request for correction of personal

information is justified and can be readily made; or

(

b) in other circumstances, advise the applicant

of the status of the request.

(2) An advisory response under paragraph (1)(

b) shall inform the applicant about one or more of the following matters, then

known:

(

a) a circumstance that may result in the request

being refused in full or in part;

(

b) a cause or other factor that may result in a

delay beyond the time period of 20 business days and an estimated length of

that delay, for which the head of the public body may seek approval from the

commissioner under

section 23 to extend the

time limit for responding;

(

c) costs that may be estimated under

section 26 to respond to the request;

(

d) a third party interest in the request; and

(

e) possible revisions to the request that may

facilitate its earlier and less costly response.

(3) The head of the public body shall, where it is

reasonable to do so, provide an applicant with a further advisory response at a

later time where an additional circumstance, cause or other factor, costs or a

third party interest that may delay receipt of a final response, becomes known.

Time limit for

final response

(1) The head of a public body shall

respond to a request in accordance with

section 17

or 18 , without delay and in any event not more

than 20 business days after receiving it, unless the time limit for responding

is extended under

section 23 .

(2) Where the head of a public body fails to

respond within the period of 20 business days or an extended period, the head

is considered to have refused access to the record or refused the request for

correction of personal information.

Content of final

response for access

(1) In a final response to a request for

access to a record, the head of a public body shall inform the applicant in

writing

(

a) whether access to the record or part of the

record is granted or refused;

(

b) if access to the record or part of the record

is granted, where, when and how access will be given; and

(

c) if access to the record or part of the record

is refused,

(

i) the reasons for the refusal and the provision

of this Act on which the refusal is based, and

(ii) that the applicant may file a complaint with

the commissioner under

section 42 or appeal

directly to the Trial Division under

section 52 ,

and advise the applicant of the applicable time limits and how to file a complaint

or pursue an appeal.

(2) Notwithstanding paragraph (1)(c), the head of

a public body may in a final response refuse to confirm or deny the existence

(

a) a record containing information described in

section 31 ;

(

b) a record containing personal information of a

third party if disclosure of the existence of the information would be an unreasonable

invasion of a third partys personal privacy under

section 40 ; or

(

c) a record that could threaten the health and

safety of an individual.

Content of final

response for correction of personal information

(1) In a final response to a request for

correction of personal information, the head of a public body shall inform the

applicant in writing

(

a) whether the requested correction has been

made; and

(

b) if the request is refused,

(

i) the reasons for the refusal,

(ii) that the record has been annotated, and

(iii) that the applicant may file a complaint with

the commissioner under

section 42 or appeal

directly to the Trial Division under

section 52 ,

and advise the applicant of the applicable time limits and how to file a complaint

or pursue an appeal.

(2) Where no correction is made in response to a

request, the head of the public body shall annotate the information with the correction

that was requested but not made.

(3) Where personal information is corrected or

annotated under this section, the head of the public body shall notify a public

body or a third party to whom that information has been disclosed during the

one year period before the correction was requested.

(4) Where a public body is notified under

subsection (3) of a correction or annotation of personal information, the

public body shall make the correction or annotation on a record of that

information in its custody or under its control.

Third party

notification

(1) Where the head of a public body

intends to grant access to a record or part of a record that the head has

reason to believe contains information that might be excepted from disclosure

under

section 39 or 40 ,

the head shall make every reasonable effort to notify the third party.

(2) The time to notify a third party does not

suspend the period of time referred to in subsection 16 (1).

(3) The head of the public body may provide or

describe to the third party the content of the record or part of the record for

which access is requested.

(4) The third party may consent to the disclosure

of the record or part of the record.

(5) Where the head of a public body decides to

grant access to a record or part of a record and the third party does not

consent to the disclosure, the head shall inform the third party in writing

(

a) of the reasons for the decision and the

provision of this Act on which the decision is based;

(

b) of the content of the record or part of the

record for which access is to be given;

(

c) that the applicant will be given access to the

record or part of the record unless the third party, not later than 15 business

days after the head of the public body informs the third party of this

decision, files a complaint with the commissioner under

section 42 or appeals directly to the Trial Division under

section

53 ; and

(

d) how to file a complaint or pursue an appeal.

(6) Where the head of a public body decides to

grant access and the third party does not consent to the disclosure, the head

shall, in a final response to an applicant, state that the applicant will be

given access to the record or part of the record on the completion of the

period of 15 business days referred to in subsection (5), unless a third party

files a complaint with the commissioner under

section 42

or appeals directly to the Trial Division under

section 53 .

(7) The head of the public body shall not give

access to the record or part of the record until

(

a) he or she receives confirmation from the third

party or the commissioner that the third party has exhausted any recourse under

this Act or has decided not to file a complaint or commence an appeal; or

(

b) a court order has been issued confirming the

decision of the public body.

(8) The head of the public body shall advise the

applicant as to the status of a complaint filed or an appeal commenced by the

third party.

(9) The third party and the head of the public

body shall communicate with one another under this Part through the

coordinator.

Provision of information

(1) Where the head of a public body

informs an applicant under

section 17 that

access to a record or part of a record is granted, he or she shall

(

a) give the applicant a copy of the record or

part of it, where the applicant requested a copy and the record can reasonably

be reproduced; or

(

b) permit the applicant to examine the record or

part of it, where the applicant requested to examine a record or where the

record cannot be reasonably reproduced.

(2) Where the requested information is in

electronic form in the custody or under the control of a public body, the head

of the public body shall produce a record for the applicant where

(

a) it can be produced using the normal computer

hardware and software and technical expertise of the public body; and

(

b) producing it would not interfere unreasonably

with the operations of the public body.

(3) Where the requested information is information

in electronic form that is, or forms part of, a dataset in the custody or under

the control of a public body, the head of the public body shall produce the information

for the applicant in an electronic form that is capable of re-use where

(

a) it can be produced using the normal computer hardware

and software and technical expertise of the public body;

(

b) producing it would not interfere unreasonably

with the operations of the public body; and

(

c) it is reasonably practicable to do so.

(4) Where information that is, or forms part of, a

dataset is produced, the head of the public body shall make it available for

re-use in accordance with the terms of a licence that may be applicable to the

dataset.

(5) Where a record exists, but not in the form

requested by the applicant, the head of the public body may, in consultation

with the applicant, create a record in the form requested where the head is of

the opinion that it would be simpler or less costly for the public body to do

so.

Disregarding a

request

(1) The head of a public body may, not

later than 5 business days after receiving a request, apply to the commissioner

for approval to disregard the request where the head is of the opinion that

(

a) the request would unreasonably interfere with

the operations of the public body;

(

b) the request is for information already

provided to the applicant; or

(

c) the request would amount to an abuse of the

right to make a request because it is

(

i) trivial, frivolous or vexatious,

(ii) unduly repetitive or systematic,

(iii) excessively broad or incomprehensible, or

(iv) otherwise made in bad faith.

(2) The commissioner shall, without delay and in

any event not later than 3 business days after receiving an application, decide

to approve or disapprove the application.

(3) The time to make an application and receive a

decision from the commissioner does not suspend the period of time referred to

in subsection 16 (1).

(4) Where the commissioner does not approve the

application, the head of the public body shall respond to the request in the manner

required by this Act.

(5) Where the commissioner approves the

application, the head of a public body who refuses to give access to a record

or correct personal information under this

section shall notify the person who

made the request.

(6) The notice shall contain the following

information:

(

a) that the request is refused because the head

of the public body is of the opinion that the request falls under subsection

(1) and of the reasons for the refusal;

(

b) that the commissioner has approved the

decision of the head of a public body to disregard the request; and

(

c) that the person who made the request may

appeal the decision of the head of the public body to the Trial Division under

subsection 52 (1).

Published

material

(1) The head of a public body may refuse

to disclose a record or part of a record that

(

a) is published and is available to the public

whether without cost or for purchase; or

(

b) is to be published or released to the public

within 30 business days after the applicants request is received.

(2) The head of a public body shall notify an

applicant of the publication or release of information that the head has

refused to give access to under paragraph (1)(b).

(3) Where the information is not published or

released within 30 business days after the applicants request is received, the

head of the public body shall reconsider the request as if it were a new

request received on the last day of that period, and access may not be refused

under paragraph (1)(b).

Extension of time

limit

(1) The head of a public body may, not

later than 15 business days after receiving a request, apply to the

commissioner to extend the time for responding to the request.

(2) The commissioner may approve an application

for an extension of time where the commissioner considers that it is necessary

and reasonable to do so in the circumstances, for the number of business days

the commissioner considers appropriate.

(3) The commissioner shall, without delay and not

later than 3 business days after receiving an application, decide to approve or

disapprove the application.

(4) The time to make an application and receive a

decision from the commissioner does not suspend the period of time referred to

in subsection 16 (1).

(5) Where the commissioner does not approve the

application, the head of the public body shall respond to the request under subsection

16 (1) without delay and in any event not later

than 20 business days after receiving the request.

(6) Where the commissioner approves the

application and the time limit for responding is extended, the head of the

public body shall, without delay, notify the applicant in writing

(

a) of the reason for the extension;

(

b) that the commissioner has authorized the

extension; and

(

c) when a response can be expected.

Extraordinary circumstances

(1) The head of a public body, an

applicant or a third party may, in extraordinary circumstances, apply to the

commissioner to vary a procedure, including a time limit imposed under a

procedure, in this Part.

(2) Where the commissioner considers that

extraordinary circumstances exist and it is necessary and reasonable to do so,

the commissioner may vary the procedure as requested or in another manner that

the commissioner considers appropriate.

(3) The commissioner shall, without delay and not

later than 3 business days after receiving an application, make a decision to

vary or not vary the procedure.

(4) The time to make an application and receive a

decision from the commissioner does not suspend the period of time referred to

in subsection 16 (1).

(5) Where the commissioner decides to vary a

procedure upon an application of a head of a public body or a third party, the

head shall notify the applicant in writing

(

a) of the reason for the procedure being varied; and

(

b) that the commissioner has authorized the

variance.

(6) Where the commissioner decides to vary a

procedure upon an application of an applicant to a request, the commissioner

shall notify the head of the public body of the variance.

(7) An application cannot be made to vary a

procedure for which the commissioner is responsible under this Part.

Costs

(1) The head of a public body shall not

charge an applicant for making an application for access to a record or for the

services of identifying, retrieving, reviewing, severing or redacting a record.

(2) The head of a public body may charge an

applicant a modest cost for locating a record only, after

(

a) the first 10 hours of locating the record,

where the request is made to a local government body; or

(

b) the first 15 hours of locating the record,

where the request is made to another public body.

(3) The head of a public body may require an

applicant to pay

(

a) a modest cost for copying or printing a

record, where the record is to be provided in hard copy form;

(

b) the actual cost of reproducing or providing a

record that cannot be reproduced or printed on conventional equipment then in

use by the public body; and

(

c) the actual cost of shipping a record using the

method chosen by the applicant.

(4) Notwithstanding subsections (2) and (3), the

head of the public body shall not charge an applicant a cost for a service in response

to a request for access to the personal information of the applicant.

(5) The cost charged for services under this

section shall not exceed either

(

a) the estimate given to the applicant under

section 26 ; or

(

b) the actual cost of the services.

(6) The minister responsible for the

administration of this Act may set the amount of a cost that may be charged

under this section.

Estimate and

waiver of costs

(1) Where an applicant is to be charged a

cost under

section 25 , the head of the public

body shall give the applicant an estimate of the total cost before providing

the services.

(2) The applicant has 20 business days from the

day the estimate is sent to accept the estimate or modify the request in order

to change the amount of the cost, after which time the applicant is considered

to have abandoned the request, unless the applicant applies for a waiver of all

or part of the costs or applies to the commissioner to revise the estimate.

(3) The head of a public body may, on receipt of

an application from an applicant, waive the payment of all or part of the costs

payable under

section 25 where the head is

satisfied that

(

a) payment would impose an unreasonable financial

hardship on the applicant; or

(

b) it would be in the public interest to disclose

the record.

(4) Within the time period of 20 business days

referred to in subsection (2), the head of the public body shall inform the

applicant in writing as to the heads decision about waiving all or part of the

costs and the applicant shall either accept the decision or apply to the commissioner

to review the decision.

(5) Where an applicant applies to the commissioner

to revise an estimate of costs or to review a decision of the head of the

public body not to waive all or part of the costs, the time period of 20

business days referred to in subsection (2) is suspended until the application

has been considered by the commissioner.

(6) Where an estimate is given to an applicant

under this section, the time within which the head of the public body is

required to respond to the request is suspended until the applicant notifies

the head to proceed with the request.

(7) On an application to revise an estimate, the

commissioner may

(

a) where the commissioner considers that it is

necessary and reasonable to do so in the circumstances, revise the estimate and

set the appropriate amount to be charged and a refund, if any; or

(

b) confirm the decision of the head of the public

body.

(8) On an application to review the decision of

the head of the public body not to waive the payment of all or part of the costs,

the commissioner may

(

a) where the commissioner is satisfied that

paragraph (3)(

a) or (

b) is applicable, waive the payment of the costs or part

of the costs in the manner and in the amount that the commissioner considers

appropriate; or

(

b) confirm the decision of the head of the public

body.

(9) The head of the public body shall comply with

a decision of the commissioner under this section.

(10) Where an estimate of costs has been provided

to an applicant, the head of a public body may require the applicant to pay 50%

of the cost before commencing the services, with the remainder to be paid upon

completion of the services.

DIVISION 2

EXCEPTIONS TO ACCESS

Cabinet

confidences

(1) In this section, "cabinet record"

means

(

a) advice, recommendations or policy

considerations submitted or prepared for submission to the Cabinet;

(

b) draft legislation or regulations submitted or

prepared for submission to the Cabinet;

(

c) a memorandum, the purpose of which is to

present proposals or recommendations to the Cabinet;

(

d) a discussion paper, policy analysis, proposal,

advice or briefing material prepared for Cabinet, excluding the sections of

these records that are factual or background material;

(

e) an agenda, minute or other record of Cabinet

recording deliberations or decisions of the Cabinet;

(

f) a record used for or which reflects

communications or discussions among ministers on matters relating to the making

of government decisions or the formulation of government policy;

(

g) a record created for or by a minister for the

purpose of briefing that minister on a matter for the Cabinet;

(

h) a record created during the process of

developing or preparing a submission for the Cabinet; and

(

i) that portion of a record which contains information

about the contents of a record within a class of information referred to in

paragraphs (

a) to (h).

(2) The head of a public body shall refuse to

disclose to an applicant

(

a) a cabinet record; or

(

b) information in a record other than a cabinet

record that would reveal the substance of deliberations of Cabinet.

(3) Notwithstanding subsection (2), the Clerk of

the Executive Council may disclose a cabinet record or information that would

reveal the substance of deliberations of Cabinet where the Clerk is satisfied

that the public interest in the disclosure of the information outweighs the

reason for the exception.

(4) Subsections (1) and (2) do not apply to

(

a) information in a record that has been in

existence for 20 years or more; or

(

b) information in a record of a decision made by

the Cabinet on an appeal under

an Act.

Local public body confidences

(1) The head of a local public body may

refuse to disclose to an applicant information that would reveal

(

a) a draft of a resolution, by-law or other legal

instrument by which the local public body acts;

(

b) a draft of a private Bill; or

(

c) the substance of deliberations of a meeting of

its elected officials or governing body or a committee of its elected officials

or governing body, where

an Act authorizes the holding of a meeting in the

absence of the public.

(2) Subsection (1) does not apply where

(

a) the draft of a resolution, by-law or other

legal instrument, a private Bill or the subject matter of deliberations has

been considered, other than incidentally, in a meeting open to the public; or

(

b) the information referred to in subsection

(1) is in a record that has been in existence for 15 years or more.

Policy advice or

recommendations

(1) The head of a public body may refuse

to disclose to an applicant information that would reveal

(

a) advice, proposals, recommendations, analyses

or policy options developed by or for a public body or minister;

(

b) the contents of a formal research report or

audit report that in the opinion of the head of the public body is incomplete

and in respect of which a request or order for completion has been made by the

head within 65 business days of delivery of the report; or

(

c) draft legislation or regulations.

(2) The head of a public body shall not refuse to

disclose under subsection (1)

(

a) factual material;

(

b) a public opinion poll;

(

c) a statistical survey;

(

d) an appraisal;

(

e) an environmental impact statement or similar

information;

(

f) a final report or final audit on the

performance or efficiency of a public body or on any of its programs or

policies;

(

g) a consumer test report or a report of a test

carried out on a product to test equipment of the public body;

(

h) a feasibility or technical study, including a

cost estimate, relating to a policy or project of the public body;

(

i) a report on the results of field research

undertaken before a policy proposal is formulated;

(

j) a report of an external task force, committee,

council or similar body that has been established to consider a matter and make

a report or recommendations to a public body;

(

k) a plan or proposal to establish a new program

or to change a program, if the plan or proposal has been approved or rejected

by the head of the public body;

(

l) information that the head of the public body

has cited publicly as the basis for making a decision or formulating a policy;

(

m) a decision, including reasons, that is made in

the exercise of a discretionary power or an adjudicative function and that affects

the rights of the applicant.

(3) Subsection (1) does not apply to information

in a record that has been in existence for 15 years or more.

Legal advice

(1) The head of a public body may refuse

to disclose to an applicant information

(

a) that is subject to solicitor and client

privilege or litigation privilege of a public body; or

(

b) that would disclose legal opinions provided to

a public body by a law officer of the Crown.

(2) The head of a public body shall refuse to

disclose to an applicant information that is subject to solicitor and client

privilege or litigation privilege of a person other than a public body.

Disclosure

harmful to law enforcement

(1) The head of a public body may refuse

to disclose information to an applicant where the disclosure could reasonably

be expected to

(

a) interfere with or harm a law enforcement

matter;

(

b) prejudice the defence of Canada or of a

foreign state allied to or associated with Canada or harm the detection,

prevention or suppression of espionage, sabotage or terrorism;

(

c) reveal investigative techniques and procedures

currently used, or likely to be used, in law enforcement;

(

d) reveal the identity of a confidential source

of law enforcement information or reveal information provided by that source

with respect to a law enforcement matter;

(

e) reveal law enforcement intelligence

information;

(

f) endanger the life or physical safety of a law

enforcement officer or another person;

(

g) reveal information relating to or used in the

exercise of prosecutorial discretion;

(

h) deprive a person of the right to a fair trial

or impartial adjudication;

(

i) reveal a record that has been confiscated from

a person by a peace officer in accordance with

an Act or regulation;

(

j) facilitate the escape from custody of a person

who is under lawful detention;

(

k) facilitate the commission or tend to impede

the detection of an offence under

an Act or regulation of the province or Canada ;

(

l) reveal the arrangements for the security of

property or a system, including a building, a vehicle, a computer system or a

communications system;

(

m) reveal technical information about weapons

used or that may be used in law enforcement;

(

n) adversely affect the detection, investigation,

prevention or prosecution of an offence or the security of a centre of lawful

detention;

(

o) reveal information in a correctional record

supplied, implicitly or explicitly, in confidence; or

(

p) harm the conduct of existing or imminent legal

proceedings.

(2) The head of a public body may refuse to

disclose information to an applicant if the information

(

a) is in a law enforcement record and the

disclosure would be an offence under

an Act of Parliament;

(

b) is in a law enforcement record and the disclosure

could reasonably be expected to expose to civil liability the author of the record

or a person who has been quoted or paraphrased in the record; or

(

c) is about the history, supervision or release

of a person who is in custody or under supervision and the disclosure could reasonably

be expected to harm the proper custody or supervision of that person.

(3) The head of a public body shall not refuse to

disclose under this

section

(

a) a report prepared in the course of routine

inspections by an agency that is authorized to enforce compliance with

an Act;

(

b) a report, including statistical analysis, on

the degree of success achieved in a law enforcement program unless disclosure

of the report could reasonably be expected to interfere with or harm the

matters referred to in subsection (1) or (2); or

(

c) statistical information on decisions to

approve or not to approve prosecutions.

Confidential

evaluations

32. The head of a public body may refuse to

disclose to an applicant personal information that is evaluative or opinion

material, provided explicitly or implicitly in confidence, and compiled for the

purpose of

(

a) determining suitability, eligibility or

qualifications for employment or for the awarding of contracts or other

benefits by a public body;

(

b) determining suitability, eligibility or

qualifications for admission to an academic program of an educational body;

(

c) determining suitability, eligibility or

qualifications for the granting of tenure at a post-secondary educational body;

(

d) determining suitability, eligibility or

qualifications for an honour or award to recognize outstanding achievement or

distinguished service; or

(

e) assessing the teaching materials or research

of an employee of a post-secondary educational body or of a person associated

with an educational body.

Information from

a workplace investigation

(1) For the purpose of this

section

(a) "harassment" means comments or

conduct which are abusive, offensive, demeaning or vexatious that are known, or

ought reasonably to be known, to be unwelcome and which may be intended or

unintended;

(b) "party" means a complainant,

respondent or a witness who provided a statement to an investigator conducting

a workplace investigation; and

(c) "workplace investigation" means an

investigation related to

(

i) the conduct of an employee in the workplace,

(ii) harassment, or

(iii) events related to the interaction of an employee

in the public body's workplace with another employee or a member of the public

which may give rise to progressive

discipline or corrective action by the public body employer.

(2) The head of a public body shall refuse to

disclose to an applicant all relevant information created or gathered for the

purpose of a workplace investigation.

(3) The head of a public body shall disclose to an

applicant who is a party to a workplace investigation the information referred

to in subsection (2).

(4) Notwithstanding subsection (3), where a party

referred to in that subsection is a witness in a workplace investigation, the

head of a public body shall disclose only the information referred to in

subsection (2) which relates to the witness' statements provided in the course

of the investigation.

Disclosure

harmful to intergovernmental relations or negotiations

(1) The head of a public body may refuse

to disclose information to an applicant if the disclosure could reasonably be

expected to

(

a) harm the conduct by the government of the

province of relations between that government and the following or their

agencies:

(ii) the council of a local government body,

(iii) the government of a foreign state,

(iv) an international organization of states, or

(

v) the Nunatsiavut Government; or

(

b) reveal information received in confidence from

a government, council or organization listed in paragraph (

a) or their

agencies.

(2) The head of a public body shall not disclose

information referred to in subsection (1) without the consent of

(

a) the Attorney General, for law enforcement

information; or

(

b) the Lieutenant-Governor in Council, for any

other type of information.

(3) Subsection (1) does not apply to information

that is in a record that has been in existence for 15 years or more unless the

information is law enforcement information.

Disclosure

harmful to the financial or economic interests of a public body

(1) The head of a public body may refuse

to disclose to an applicant information which could reasonably be expected to

disclose

(

a) trade secrets of a public body or the

government of the province;

(

b) financial, commercial, scientific or technical

information that belongs to a public body or to the government of the province

and that has, or is reasonably likely to have, monetary value;

(

c) plans that relate to the management of

personnel of or the administration of a public body and that have not yet been

implemented or made public;

(

d) information, the disclosure of which could

reasonably be expected to result in the premature disclosure of a proposal or

project or in significant loss or gain to a third party;

(

e) scientific or technical information obtained

through research by an employee of a public body, the disclosure of which could

reasonably be expected to deprive the employee of priority of publication;

(

f) positions, plans, procedures, criteria or

instructions developed for the purpose of contractual or other negotiations by

or on behalf of the government of the province or a public body, or

considerations which relate to those negotiations;

(

g) information, the disclosure of which could

reasonably be expected to prejudice the financial or economic interest of the

government of the province or a public body; or

(

h) information, the disclosure of which could

reasonably be expected to be injurious to the ability of the government of the

province to manage the economy of the province.

(2) The head of a public body shall not refuse to

disclose under subsection (1) the results of product or environmental testing

carried out by or for that public body, unless the testing was done

(

a) for a fee as a service to a person or a group

of persons other than the public body; or

(

b) for the purpose of developing methods of

testing.

Disclosure

harmful to conservation

36. The head of a public body may refuse to

disclose information to an applicant if the disclosure could reasonably be

expected to result in damage to, or interfere with the conservation of

(

a) fossil sites, natural sites or sites that have

an anthropological or heritage value;

(

b) an endangered, threatened or vulnerable

species, sub-species or a population of a species; or

(

c) a rare or endangered living resource.

Disclosure

harmful to individual or public safety

(1) The head of a public body may refuse

to disclose to an applicant information, including personal information about

the applicant, where the disclosure could reasonably be expected to

(

a) threaten the safety or mental or physical

health of a person other than the applicant; or

(

b) interfere with public safety.

(2) The head of a public body may refuse to

disclose to an applicant personal information about the applicant if the

disclosure could reasonably be expected to result in immediate and grave harm

to the applicant's safety or mental or physical health.

Disclosure

harmful to labour relations interests of public body as employer

(1) The head of a public body may refuse

to disclose to an applicant information that would reveal

(

a) labour relations information of the public

body as an employer that is prepared or supplied, implicitly or explicitly, in

confidence, and is treated consistently as confidential information by the

public body as an employer; or

(

b) labour relations information the disclosure of

which could reasonably be expected to

(

i) harm the competitive position of the public

body as an employer or interfere with the negotiating position of the public

body as an employer,

(ii) result in significant financial loss or gain

to the public body as an employer, or

(iii) reveal information supplied to, or the report

of, an arbitrator, mediator, labour relations officer, staff relations

specialist or other person or body appointed to resolve or inquire into a

labour relations dispute, including information or records prepared by or for

the public body in contemplation of litigation or arbitration or in contemplation

of a settlement offer.

(2) Subsection (1) does not apply where the information

is in a record that is in the custody or control of the Provincial Archives of

Newfoundland and Labrador or the archives of a

public body and that has been in existence for 50 years or more.

Disclosure

harmful to business interests of a third party

(1) The head of a public body shall refuse

to disclose to an applicant information

(

a) that would reveal

(

i) trade secrets of a third party, or

(ii) commercial, financial, labour relations, scientific

or technical information of a third party;

(

b) that is supplied, implicitly or explicitly, in

confidence; and

(

c) the disclosure of which could reasonably be

expected to

(

i) harm significantly the competitive position or

interfere significantly with the negotiating position of the third party,

(ii) result in similar information no longer being

supplied to the public body when it is in the public interest that similar

information continue to be supplied,

(iii) result in undue financial loss or gain to any

person, or

(iv) reveal information supplied to, or the report

of, an arbitrator, mediator, labour relations officer or other person or body appointed

to resolve or inquire into a labour relations dispute.

(2) The head of a public body shall refuse to

disclose to an applicant information that was obtained on a tax return,

gathered for the purpose of determining tax liability or collecting a tax, or

royalty information submitted on royalty returns, except where that information

is non-identifying aggregate royalty information.

(3) Subsections (1) and (2) do not apply where

(

a) the third party consents to the disclosure; or

(

b) the information is in a record that is in the

custody or control of the Provincial Archives of Newfoundland and Labrador or the archives of a public body and that has

been in existence for 50 years or more.

Disclosure

harmful to personal privacy

(1) The head of a public body shall refuse

to disclose personal information to an applicant where the disclosure would be

an unreasonable invasion of a third party's personal privacy.

(2) A disclosure of personal information is not an

unreasonable invasion of a third party's personal privacy where

(

a) the applicant is the individual to whom the

information relates;

(

b) the third party to whom the information

relates has, in writing, consented to or requested the disclosure;

(

c) there are compelling circumstances affecting a

persons health or safety and notice of disclosure is given in the form

appropriate in the circumstances to the third party to whom the information

relates;

(

d) an Act or regulation of the province or of Canada

authorizes the disclosure;

(

e) the disclosure is for a research or

statistical purpose and is in accordance with

section 70 ;

(

f) the information is about a third party's

position, functions or remuneration as an officer, employee or member of a public

body or as a member of a minister's staff;

(

g) the disclosure reveals financial and other

details of a contract to supply goods or services to a public body;

(

h) the disclosure reveals the opinions or views

of a third party given in the course of performing services for a public body,

except where they are given in respect of another individual;

(

i) public access to the information is provided

under the Financial Administration Act ;

(

j) the information is about expenses incurred by

a third party while travelling at the expense of a public body;

(

k) the disclosure reveals details of a licence,

permit or a similar discretionary benefit granted to a third party by a public

body, not including personal information supplied in support of the application

for the benefit;

(

l) the disclosure reveals details of a

discretionary benefit of a financial nature granted to a third party by a

public body, not including

(

i) personal information that is supplied in support

of the application for the benefit, or

(ii) personal information that relates to

eligibility for income and employment support under the Income and Employment Support Act or to the determination of income

or employment support levels; or

(

m) the disclosure is not contrary to the public

interest as described in subsection (3) and reveals only the following personal

information about a third party:

(

i) attendance at or participation in a public

event or activity related to a public body, including a graduation ceremony,

sporting event, cultural program or club, or field trip, or

(ii) receipt of an honour or award granted by or

through a public body.

(3) The disclosure of personal information under

paragraph (2)(

m) is an unreasonable invasion of personal privacy where the

third party whom the information is about has requested that the information

not be disclosed.

(4) A disclosure of personal information is

presumed to be an unreasonable invasion of a third party's personal privacy

where

(

a) the personal information relates to a medical,

psychiatric or psychological history, diagnosis, condition, treatment or

evaluation;

(

b) the personal information is an identifiable

part of a law enforcement record, except to the extent that the disclosure is

necessary to dispose of the law enforcement matter or to continue an

investigation;

(

c) the personal information relates to employment

or educational history;

(

d) the personal information was collected on a

tax return or gathered for the purpose of collecting a tax;

(

e) the personal information consists of an

individual's bank account information or credit card information;

(

f) the personal information consists of personal

recommendations or evaluations, character references or personnel evaluations;

(

g) the personal information consists of the third

party's name where

(

i) it appears with other personal information

about the third party, or

(ii) the disclosure of the name itself would reveal

personal information about the third party; or

(

h) the personal information indicates the third

party's racial or ethnic origin or religious or political beliefs or

associations.

(5) In determining under subsections (1) and

(4) whether a disclosure of personal information constitutes an unreasonable

invasion of a third party's personal privacy, the head of a public body shall

consider all the relevant circumstances, including whether

(

a) the disclosure is desirable for the purpose of

subjecting the activities of the province or a public body to public scrutiny;

(

b) the disclosure is likely to promote public

health and safety or the protection of the environment;

(

c) the personal information is relevant to a fair

determination of the applicant's rights;

(

d) the disclosure will assist in researching or

validating the claims, disputes or grievances of aboriginal people;

(

e) the third party will be exposed unfairly to

financial or other harm;

(

f) the personal information has been supplied in

confidence;

(

g) the personal information is likely to be

inaccurate or unreliable;

(

h) the disclosure may unfairly damage the

reputation of a person referred to in the record requested by the applicant;

(

i) the personal information was originally

provided to the applicant; and

(

j) the information is about a deceased person

and, if so, whether the length of time the person has been deceased indicates

the disclosure is not an unreasonable invasion of the deceased persons

personal privacy.

Disclosure of

House of Assembly service and statutory office records

41. The Speaker of the House of Assembly, the

officer responsible for a statutory office, or the head of a public body shall

refuse to disclose to an applicant information

(

a) where its non-disclosure is required for the

purpose of avoiding an infringement of the privileges of the House of Assembly

or a member of the House of Assembly;

(

b) that is advice or a recommendation given to

the Speaker or the Clerk of the House of Assembly or the House of Assembly

Management Commission that is not required by law to be disclosed or placed in

the minutes of the House of Assembly Management Commission; or

(

c) in the case of a statutory office as defined

in the House of Assembly Accountability,

Integrity and Administration Act , records

connected with the investigatory functions of the statutory office.

DIVISION 3

COMPLAINT

Access or

correction complaint

(1) A person who makes a request under

this Act for access to a record or for correction of personal information may

file a complaint with the commissioner respecting a decision, act or failure to

act of the head of the public body that relates to the request.

(2) A complaint under subsection (1) shall be

filed in writing not later than 15 business days

(

a) after the applicant is notified of the

decision of the head of the public body, or the date of the act or failure to

act; or

(

b) after the date the head of the public body is

considered to have refused the request under subsection 16 (2).

(3) A third party informed under

section 19 of a decision of the head of a public body to grant

access to a record or part of a record in response to a request may file a

complaint with the commissioner respecting that decision.

(4) A complaint under subsection (3) shall be

filed in writing not later than 15 business days after the third party is

informed of the decision of the head of the public body.

(5) The commissioner may allow a longer time

period for the filing of a complaint under this section.

(6) A person or third party who has appealed

directly to the Trial Division under subsection 52

(1) or 53 (1) shall not file a complaint with the

commissioner.

(7) The commissioner shall refuse to investigate a

complaint where an appeal has been commenced in the Trial Division.

(8) A complaint shall not be filed under this

section with respect to

(

a) a request that is disregarded under

section 21 ;

(

b) a decision respecting an extension of time

under

section 23 ;

(

c) a variation of a procedure under

section 24 ; or

(

d) an estimate of costs or a decision not to

waive a cost under

section 26 .

(9) The commissioner shall provide a copy of the

complaint to the head of the public body concerned.

Burden of proof

(1) On an investigation of a complaint

from a decision to refuse access to a record or part of a record, the burden is

on the head of a public body to prove that the applicant has no right of access

to the record or part of the record.

(2) On an investigation of a complaint from a

decision to give an applicant access to a record or part of a record containing

personal information that relates to a third party, the burden is on the head

of a public body to prove that the disclosure of the information would not be

contrary to this Act or the regulations.

(3) On an investigation of a complaint from a

decision to give an applicant access to a record or part of a record containing

information, other than personal information, that relates to a third party,

the burden is on the third party to prove that the applicant has no right of

access to the record or part of the record.

Investigation

(1) The commissioner shall notify the

parties to the complaint and advise them that they have 10 business days from

the date of notification to make representations to the commissioner.

(2) The parties to the complaint may, not later

than 10 business days after notification of the complaint, make a

representation to the commissioner in accordance with

section 96 .

(3) The commissioner may take additional steps

that he or she considers appropriate to resolve the complaint informally to the

satisfaction of the parties and in a manner consistent with this Act.

(4) Where the commissioner is unable to informally

resolve the complaint within 30 business days of receipt of the complaint, the

commissioner shall conduct a formal investigation of the subject matter of the

complaint where he or she is satisfied that there are reasonable grounds to do

so.

(5) Notwithstanding subsection (4), the

commissioner may extend the informal resolution process for a maximum of 20

business days where a written request is received from each party to continue

the informal resolution process.

(6) The commissioner shall not extend the informal

resolution process beyond the date that is 50 business days after receipt of

the complaint.

(7) Where the commissioner has 5 active complaints

from the same applicant that deal with similar or related records, the commissioner

may hold an additional complaint in abeyance and not commence an investigation

until one of the 5 active complaints is resolved.

Authority of commissioner

not to investigate a complaint

(1) The commissioner may, at any stage of

an investigation, refuse to investigate a complaint where he or she is

satisfied that

(

a) the head of a public body has responded

adequately to the complaint;

(

b) the complaint has been or could be more

appropriately dealt with by a procedure or proceeding other than a complaint

under this Act;

(

c) the length of time that has elapsed between

the date when the subject matter of the complaint arose and the date when the

complaint was filed is such that an investigation under this Part would be

likely to result in undue prejudice to a person or that a report would not

serve a useful purpose; or

(

d) the complaint is trivial, frivolous, vexatious

or is made in bad faith.

(2) Where the commissioner refuses to investigate

a complaint, he or she shall

(

a) give notice of that refusal, together with

reasons, to the person who made the complaint;

(

b) advise the person of the right to appeal to

the Trial Division under subsection 52 (3) or 53 (3) the decision of the head of the public body

that relates to the request; and

(

c) advise the person of the applicable time limit

and how to pursue an appeal.

Time limit for

formal investigation

(1) The commissioner shall complete a

formal investigation and make a report under

section 48

within 65 business days of receiving the complaint, whether or not the time for

the informal resolution process has been extended.

(2) The commissioner may, in extraordinary

circumstances, apply to a judge of the Trial Division for an order to extend

the period of time under subsection (1).

Recommendations

47. On completing an investigation, the

commissioner may recommend that

(

a) the head of the public body grant or refuse

access to the record or part of the record;

(

b) the head of the public body reconsider its

decision to refuse access to the record or part of the record;

(

c) the head of the public body either make or not

make the requested correction to personal information; and

(

d) other improvements for access to information

be made within the public body.

Report

(1) On completing an investigation, the

commissioner shall

(

a) prepare a report containing the commissioners

findings and, where appropriate, his or her recommendations and the reasons for

those recommendations; and

(

b) send a copy of the report to the person who

filed the complaint, the head of the public body concerned and a third party

who was notified under

section 44 .

(2) The report shall include information

respecting the obligation of the head of the public body to notify the parties

of the heads response to the recommendation of the commissioner within 10 business

days of receipt of the recommendation.

Response of

public body

(1) The head of a public body shall, not

later than 10 business days after receiving a recommendation of the

commissioner,

(

a) decide whether or not to comply with the

recommendation in whole or in part; and

(

b) give written notice of his or her decision to

the commissioner and a person who was sent a copy of the report.

(2) Where the head of the public body does not

give written notice within the time required by subsection (1), the head of the

public body is considered to have agreed to comply with the recommendation of

the commissioner.

(3) The written notice shall include notice of the

right

(

a) of an applicant or third party to appeal under

section 54 to the Trial Division and of the

time limit for an appeal; or

(

b) of the commissioner to file an order with the

Trial Division in one of the circumstances referred to in subsection 51 (1).

Head of public

body seeks declaration in court

(1) This

section applies to a

recommendation of the commissioner under

section 47

that the head of the public body

(

a) grant the applicant access to the record or

part of the record; or

(

b) make the requested correction to personal

information.

(2) Where the head of the public body decides not

to comply with a recommendation of the commissioner referred to in subsection

(1) in whole or in part, the head shall, not later than 10 business days after

receipt of that recommendation, apply to the Trial Division for a declaration

that the public body is not required to comply with that recommendation because

(

a) the head of the public body is authorized

under this Part to refuse access to the record or part of the record, and,

where applicable, it has not been clearly demonstrated that the public interest

in disclosure of the information outweighs the reason for the exception;

(

b) the head of the public body is required under

this Part to refuse access to the record or part of the record; or

(

c) the decision of the head of the public body

not to make the requested correction to personal information is in accordance

with this Act or the regulations.

(3) The head shall, within the time frame referred

to in subsection (2), serve a copy of the application for a declaration on the

commissioner, the minister responsible for the administration of this Act, and

a person who was sent a copy of the commissioners report.

(4) The commissioner, the minister responsible for

this Act, or a person who was sent a copy of the commissioners report may intervene

in an application for a declaration by filing a notice to that effect with the

Trial Division.

(5) Sections 57 to

60 apply, with the necessary modifications, to

an application by the head of a public body to the Trial Division for a

declaration.

Filing an order

with the Trial Division

(1) The commissioner may prepare and file

an order with the Trial Division where

(

a) the head of the public body agrees or is

considered to have agreed under

section 49 to

comply with a recommendation of the commissioner referred to in subsection 50 (1) in whole or in part but fails to do so within

15 business days after receipt of the commissioners recommendation; or

(

b) the head of the public body fails to apply

under

section 50 to the Trial Division for a

declaration.

(2) The order shall be limited to a direction to

the head of the public body either

(

a) to grant the applicant access to the record or

part of the record; or

(

b) to make the requested correction to personal

information.

(3) An order shall not be filed with the Trial

Division until the later of the time periods referred to in paragraph (1)(

a) and

section 54 has passed.

(4) An order shall not be filed with the Trial

Division under this

section if the applicant or third party has commenced an

appeal in the Trial Division under

section 54 .

(5) Where an order is filed with the Trial

Division, it is enforceable against the public body as if it were a judgment or

order made by the court.

DIVISION 4

APPEAL TO THE TRIAL DIVISION

Direct appeal to

Trial Division by an applicant

(1) Where an applicant has made a request

to a public body for access to a record or correction of personal information

and has not filed a complaint with the commissioner under

section 42 , the applicant may appeal the decision, act or

failure to act of the head of the public body that relates to the request

directly to the Trial Division.

(2) An appeal shall be commenced under subsection

(1) not later than 15 business days

(

a) after the applicant is notified of the

decision of the head of the public body, or the date of the act or failure to

act; or

(

b) after the date the head of the public body is

considered to have refused the request under subsection 16 (2).

(3) Where an applicant has filed a complaint with

the commissioner under

section 42 and the

commissioner has refused to investigate the complaint, the applicant may

commence an appeal in the Trial Division of the decision, act or failure to act

of the head of the public body that relates to the request for access to a

record or for correction of personal information.

(4) An appeal shall be commenced under subsection

(3) not later than 15 business days after the applicant is notified of the commissioners

refusal under subsection 45 (2).

Direct appeal to

Trial Division by a third party

(1) A third party informed under

section 19 of a decision of the head of a public body to

grant access to a record or part of a record in response to a request may

appeal the decision directly to the Trial Division.

(2) An appeal shall be commenced under subsection

(1) not later than 15 business days after the third party is informed of the

decision of the head of the public body.

(3) Where a third party has filed a complaint with

the commissioner under

section 42 and the

commissioner has refused to investigate the complaint, the third party may

commence an appeal in the Trial Division of the decision of the head of the

public body to grant access in response to a request.

(4) An appeal shall be commenced under subsection

(3) not later than 15 business days after the third party is notified of the commissioners

refusal under subsection 45 (2).

Appeal of public

body decision after receipt of commissioners recommendation

54. An applicant or a third party may, not later

than 10 business days after receipt of a decision of the head of the public

body under

section 49 , commence an appeal in

the Trial Division of the heads decision to

(

a) grant or refuse access to the record or part

of the record; or

(

b) not make the requested correction to personal

information.

No right of

appeal

55. An appeal does not lie against

(

a) a decision respecting an extension of time

under

section 23 ;

(

b) a variation of a procedure under

section 24 ; or

(

c) an estimate of costs or a decision not to

waive a cost under

section 26 .

Procedure on

appeal

(1) Where a person appeals a decision of

the head of a public body, the notice of appeal shall name the head of the

public body involved as the respondent.

(2) A copy of the notice of appeal shall be served

by the appellant on the commissioner and the minister responsible for this Act.

(3) The minister responsible for this Act, the

commissioner, the applicant or a third party may intervene as a party to an

appeal under this Division by filing a notice to that effect with the Trial

Division.

(4) Notwithstanding subsection (3), the

commissioner shall not intervene as a party to an appeal of

(

a) a decision of the head of the public body

under

section 21 to disregard a request; or

(

b) a decision, act or failure to act of the head

of a public body in respect of which the commissioner has refused under

section

45 to investigate a complaint.

(5) The head of a public body who has refused

access to a record or part of it shall, on receipt of a notice of appeal by an

applicant, make reasonable efforts to give written notice of the appeal to a

third party who

(

a) was notified of the request for access under

section 19 ; or

(

b) would have been notified under

section 19 if the head had intended to give access to the

record or part of the record.

(6) Where an appeal is brought by a third party,

the head of the public body shall give written notice of the appeal to the

applicant.

(7) The record for the appeal shall be prepared by

the head of the public body named as the respondent in the appeal.

Practice and procedure

57. The practice and procedure under the Rules of the Supreme Court, 1986

providing for an expedited trial, or such adaption of those rules as the court

or judge considers appropriate in the circumstances, shall apply to the appeal.

Solicitor and

client privilege

58. The solicitor and client privilege or

litigation privilege of a record in dispute shall not be affected by disclosure

to the Trial Division.

Conduct of appeal

(1) The Trial Division shall review the

decision, act or failure to act of the head of a public body that relates to a

request for access to a record or correction of personal information under this

Act as a new matter and may receive evidence by affidavit.

(2) The burden of proof in

section 43 applies, with the necessary modifications, to an

appeal.

(3) In exercising its powers to order production

of documents for examination, the Trial Division shall take reasonable

precautions, including where appropriate, receiving representations without

notice to another person, conducting hearings in private and examining records

in private, to avoid disclosure of

(

a) any information or other material if the

nature of the information or material could justify a refusal by a head of a public

body to give access to a record or part of a record; or

(

b) the existence of information, where the head

of a public body is authorized to refuse to confirm or deny that the information

exists under subsection 17 (2).

Disposition of

appeal

(1) On hearing an appeal the Trial Division

may

(

a) where it determines that the head of the

public body is authorized to refuse access to a record under this Part and,

where applicable, it has not been clearly demonstrated that the public interest

in disclosure of the information outweighs the reason for the exception,

dismiss the appeal;

(

b) where it determines that the head of the

public body is required to refuse access to a record under this Part, dismiss

the appeal; or

(

c) where it determines that the head is not

authorized or required to refuse access to all or part of a record under this

Part,

(

i) order the head of the public body to give the

applicant access to all or part of the record, and

(ii) make an order that the court considers appropriate.

(2) Where the Trial Division finds that a record

or part of a record falls within an exception to access under this Act and,

where applicable, it has not been clearly demonstrated that the public interest

in disclosure of the information outweighs the reason for the exception, the court

shall not order the head to give the applicant access to that record or part of

it, regardless of whether the exception requires or merely authorizes the head

to refuse access.

(3) Where the Trial Division finds that to do so

would be in accordance with this Act or the regulations, it may order that

personal information be corrected and the manner in which it is to be

corrected.

PART III

PROTECTION OF PERSONAL INFORMATION

DIVISION 1

COLLECTION, USE AND DISCLOSURE

Purpose for which

personal information may be collected

61. No personal information may be collected by or

for a public body unless

(

a) the collection of that information is

expressly authorized by or under

an Act;

(

b) that information is collected for the purposes

of law enforcement; or

(

c) that information relates directly to and is

necessary for an operating program or activity of the public body.

How personal

information is to be collected

(1) A public body shall collect personal

information directly from the individual the information is about unless

(

a) another method of collection is authorized by

(

i) that individual,

(ii)

the commissioner under paragraph 95 (1)(c), or

(iii)

an Act or regulation;

(

b) the information may be disclosed to the public

body under sections 68 to 71 ;

(

c) the information is collected for the purpose

(

i) determining suitability for an honour or award

including an honorary degree, scholarship, prize or bursary,

(ii) an existing or anticipated proceeding before a

court or a judicial or quasi-judicial tribunal,

(iii) collecting a debt or fine or making a payment,

(iv) law enforcement; or

(

d) collection of the information is in the

interest of the individual and time or circumstances do not permit collection directly

from the individual.

(2) A public body shall tell an individual from

whom it collects personal information

(

a) the purpose for collecting it;

(

b) the legal authority for collecting it; and

(

c) the title, business address and business

telephone number of an officer or employee of the public body who can answer

the individual's questions about the collection.

(3) Subsection (2) does not apply where

(

a) the information is about law enforcement or

anything referred to in subsection 31 (1) or

(2); or

(

b) in the opinion of the head of the public body,

complying with it would

(

i) result in the collection of inaccurate information,

(ii) defeat the purpose or prejudice the use for

which the information is collected.

Accuracy of personal

information

63. Where an individual's personal information will

be used by a public body to make a decision that directly affects the

individual, the public body shall make every reasonable effort to ensure that

the information is accurate and complete.

Protection of personal

information

(1) The head of a public body shall take

steps that are reasonable in the circumstances to ensure that

(

a) personal information in its custody or control

is protected against theft, loss and unauthorized collection, access, use or

disclosure;

(

b) records containing personal information in its

custody or control are protected against unauthorized copying or modification;

and

(

c) records containing personal information in its

custody or control are retained, transferred and disposed of in a secure

manner.

(2) For the purpose of paragraph (1)(c), "disposed

of in a secure manner" in relation to the disposition of a record of

personal information does not include the destruction of a record unless the

record is destroyed in such a manner that the reconstruction of the record is

not reasonably foreseeable in the circumstances.

(3) Except as otherwise provided in subsections

(6) and (7), the head of a public body that has custody or control of personal

information shall notify the individual who is the subject of the information

at the first reasonable opportunity where the information is

(

a) stolen;

(

b) lost;

(

c) disposed of, except as permitted by law; or

(

d) disclosed to or accessed by an unauthorized

person.

(4) Where the head of a public body reasonably

believes that there has been a breach involving the unauthorized collection,

use or disclosure of personal information, the head shall inform the commissioner

of the breach.

(5) Notwithstanding a circumstance where, under

subsection (7), notification of an individual by the head of a public body is

not required, the commissioner may recommend that the head of the public body,

at the first reasonable opportunity, notify the individual who is the subject

of the information.

(6) Where a public body has received personal

information from another public body for the purpose of research, the

researcher may not notify an individual who is the subject of the information

that the information has been stolen, lost, disposed of in an unauthorized

manner or disclosed to or accessed by an unauthorized person unless the public

body that provided the information to the researcher first obtains that

individuals consent to contact by the researcher and informs the researcher

that the individual has given consent.

(7) Subsection (3) does not apply where the head

of the public body reasonably believes that the theft, loss, unauthorized

disposition, or improper disclosure or access of personal information does not

create a risk of significant harm to the individual who is the subject of the

information.

(8) For the purpose of this section, "significant

harm" includes bodily harm, humiliation, damage to reputation or

relationships, loss of employment, business or professional opportunities,

financial loss, identity theft, negative effects on the credit record and

damage to or loss of property.

(9) The factors that are relevant to determining

under subsection (7) whether a breach creates a risk of significant harm to an

individual include

(

a) the sensitivity of the personal information;

and

(

b) the probability that the personal information

has been, is being, or will be misused.

Retention of personal

information

(1) Where a public body uses an

individual's personal information to make a decision that directly affects the

individual, the public body shall retain that information for at least one year

after using it so that the individual has a reasonable opportunity to obtain

access to it.

(2) A public body that has custody or control of

personal information that is the subject of a request for access to a record or

correction of personal information under

Part II shall retain that information

for as long as necessary to allow the individual to exhaust any recourse under

this Act that he or she may have with respect to the request.

Use of personal

information

(1) A public body may use personal

information only

(

a) for the purpose for which that information was

obtained or compiled, or for a use consistent with that purpose as described in

section 69 ;

(

b) where the individual the information is about

has identified the information and has consented to the use, in the manner set

by the minister responsible for this Act; or

(

c) for a purpose for which that information may

be disclosed to that public body under sections 68

to 71 .

(2) The use of personal information by a public

body shall be limited to the minimum amount of information necessary to accomplish

the purpose for which it is used.

Use of personal

information by post-secondary educational bodies

(1) Notwithstanding

section 66 , a post-secondary educational body may, in

accordance this section, use personal information in its alumni records for the

purpose of its own fundraising activities where that personal information is

reasonably necessary for the fundraising activities.

(2) In order to use personal information in its

alumni records for the purpose of its own fundraising activities, a

post-secondary educational body shall

(

a) give notice to the individual to whom the

personal information relates when the individual is first contacted for the purpose

of soliciting funds for fundraising of his or her right to request that the

information cease to be used for fundraising purposes;

(

b) periodically and in the course of soliciting

funds for fundraising, give notice to the individual to whom the personal

information relates of his or her right to request that the information cease

to be used for fundraising purposes; and

(

c) periodically and in a manner that is likely to

come to the attention of individuals who may be solicited for fundraising,

publish in an alumni magazine or other publication, a notice of the

individual's right to request that the individual's personal information cease

to be used for fundraising purposes.

(3) A post-secondary educational body shall, where

requested to do so by an individual, cease to use the individual's personal information

under subsection (1).

(4) The use of personal information by a

post-secondary educational body under this

section shall be limited to the

minimum amount of information necessary to accomplish the purpose for which it

is used.

Disclosure of personal

information

(1) A public body may disclose personal

information only

(

a) in accordance with

Part II;

(

b) where the individual the information is about

has identified the information and consented to the disclosure in the manner

set by the minister responsible for this Act;

(

c) for the purpose for which it was obtained or

compiled or for a use consistent with that purpose as described in

section 69 ;

(

d) for the purpose of complying with

an Act or

regulation of, or with a treaty, arrangement or agreement made under

an Act or

regulation of the province or Canada ;

(

e) for the purpose of complying with a subpoena,

warrant or order issued or made by a court, person or body with jurisdiction to

compel the production of information;

(

f) to an officer or employee of the public body

or to a minister, where the information is necessary for the performance of the

duties of, or for the protection of the health or safety of, the officer,

employee or minister;

(

g) to the Attorney General for use in civil

proceedings involving the government;

(

h) for the purpose of enforcing a legal right the

government of the province or a public body has against a person;

(

i) for the purpose of

(

i) collecting a debt or fine owing by the individual

the information is about to the government of the province or to a public body,

(ii) making a payment owing by the government of

the province or by a public body to the individual the information is about;

(

j) to the Auditor General or another person or

body prescribed in the regulations for audit purposes;

(

k) to a member of the House of Assembly who has been

requested by the individual the information is about to assist in resolving a

problem;

(

l) to a representative of a bargaining agent who

has been authorized in writing by the employee, whom the information is about,

to make an inquiry;

(

m) to the Provincial Archives of Newfoundland and

Labrador , or the archives of a public body,

for archival purposes;

(

n) to a public body or a law enforcement agency

in Canada

to assist in an investigation

(

i) undertaken with a view to a law enforcement

proceeding, or

(ii) from which a law enforcement proceeding is

likely to result;

(

o) where the public body is a law enforcement

agency and the information is disclosed

(

i) to another law enforcement agency in Canada ,

(ii) to a law enforcement agency in a foreign

country under an arrangement, written agreement, treaty or legislative

authority;

(

p) where the head of the public body determines

that compelling circumstances exist that affect a persons health or safety and

where notice of disclosure is given in the form appropriate in the

circumstances to the individual the information is about;

(

q) so that the next of kin or a friend of an

injured, ill or deceased individual may be contacted;

(

r) in accordance with

an Act of the province or Canada

that authorizes or requires the disclosure;

(

s) in accordance with sections 70 and 71 ;

(

t) where the disclosure would not be an

unreasonable invasion of a third party's personal privacy under

section 40 ;

(

u) to an officer or employee of a public body or

to a minister, where the information is necessary for the delivery of a common

or integrated program or service and for the performance of the duties of the

officer or employee or minister to whom the information is disclosed; or

(

v) to the surviving spouse or relative of a

deceased individual where, in the opinion of the head of the public body, the

disclosure is not an unreasonable invasion of the deceased's personal privacy.

(2) The disclosure of personal information by a

public body shall be limited to the minimum amount of information necessary to

accomplish the purpose for which it is disclosed.

Definition of consistent

purposes

69. A use of personal information is consistent

under

section 66 or 68

with the purposes for which the information was obtained or compiled where the

use

(

a) has a reasonable and direct connection to that

purpose; and

(

b) is necessary for performing the statutory

duties of, or for operating a legally authorized program of, the public body

that uses or discloses the information.

Disclosure for

research or statistical purposes

70. A public body may disclose personal information

for a research purpose, including statistical research, only where

(

a) the research purpose cannot reasonably be

accomplished unless that information is provided in individually identifiable

form;

(

b) any record linkage is not harmful to the

individuals that information is about and the benefits to be derived from the

record linkage are clearly in the public interest;

(

c) the head of the public body concerned has

approved conditions relating to the following:

(

i) security and confidentiality,

(ii) the removal or destruction of individual identifiers

at the earliest reasonable time, and

(iii) the prohibition of any subsequent use or disclosure

of that information in individually identifiable form without the express

authorization of that public body; and

(

d) the person to whom that information is

disclosed has signed an agreement to comply with the approved conditions, this

Act and the public body's policies and procedures relating to the

confidentiality of personal information.

Disclosure for

archival or historical purposes

71. The Provincial Archives of Newfoundland and Labrador , or the archives of a public body, may disclose

personal information for archival or historical purposes where

(

a) the disclosure would not be an unreasonable

invasion of a third partys personal privacy under

section 40 ;

(

b) the disclosure is for historical research and

is in accordance with

section 70 ;

(

c) the information is about an individual who has

been dead for 20 years or more; or

(

d) the information is in a record that has been

in existence for 50 years or more.

Privacy impact

assessment

(1) A minister shall, during the

development of a program or service by a department or branch of the executive

government of the province, submit to the minister responsible for this Act

(

a) a privacy impact assessment for that

ministers review and comment; or

(

b) the results of a preliminary assessment

showing that a privacy impact assessment of the program or service is not required.

(2) A minister shall conduct a preliminary

assessment and, where required, a privacy impact assessment in accordance with

the directions of the minister responsible for this Act.

(3) A minister shall notify the commissioner of a

common or integrated program or service at an early stage of developing the program

or service.

(4) Where the minister responsible for this Act

receives a privacy impact assessment respecting a common or integrated program

or service for which disclosure of personal information may be permitted under

paragraph 68 (1)(u), the minister shall, during

the development of the program or service, submit the privacy impact assessment

to the commissioner for the commissioners review and comment.

DIVISION 2

PRIVACY COMPLAINT

Privacy complaint

(1) Where an individual believes on

reasonable grounds that his or her personal information has been collected,

used or disclosed by a public body in contravention of this Act, he or she may

file a privacy complaint with the commissioner.

(2) Where a person believes on reasonable grounds

that personal information has been collected, used or disclosed by a public

body in contravention of this Act, he or she may file a privacy complaint with

the commissioner on behalf of an individual or group of individuals, where that

individual or those individuals have given consent to the filing of the privacy

complaint.

(3) Where the commissioner believes that personal

information has been collected, used or disclosed by a public body in contravention

of this Act, the commissioner may on his or her own motion carry out an

investigation.

(4) A privacy complaint under subsection (1) or

(2) shall be filed in writing with the commissioner within

(

a) one year after the subject matter of the

privacy complaint first came to the attention of the complainant or should reasonably

have come to the attention of the complainant; or

(

b) a longer period of time as permitted by the

commissioner.

(5) The commissioner shall provide a copy or

summary of the privacy complaint, including an investigation initiated on the

commissioners own motion, to the head of the public body concerned.

Investigation privacy complaint

(1) The commissioner may take the steps

that he or she considers appropriate to resolve a privacy complaint informally

to the satisfaction of the parties and in a manner consistent with this Act.

(2) Where the commissioner is unable to informally

resolve a privacy complaint within a reasonable period of time, the commissioner

shall conduct a formal investigation of the subject matter of the privacy

complaint where he or she is satisfied that there are reasonable grounds to do

so.

(3) The commissioner shall complete a formal

investigation and make a report under

section 77

within a time that is as expeditious as possible in the circumstances.

(4) Where the commissioner has 5 active privacy

complaints from the same person that deal with similar or related records, the

commissioner may hold an additional complaint in abeyance and not commence an

investigation until one of the 5 active complaints is resolved.

Authority of commissioner

not to investigate a privacy complaint

75. The commissioner may, at any stage of an

investigation, refuse to investigate a privacy complaint where he or she is

satisfied that

(

a) the head of a public body has responded

adequately to the privacy complaint;

(

b) the privacy complaint has been or could be

more appropriately dealt with by a procedure or proceeding other than a

complaint under this Act;

(

c) the length of time that has elapsed between

the date when the subject matter of the privacy complaint arose and the date

when the privacy complaint was filed is such that an investigation under this

Part would be likely to result in undue prejudice to a person or that a report

would not serve a useful purpose; or

(

d) the privacy complaint is trivial, frivolous,

vexatious or is made in bad faith.

Recommendations

privacy complaint

(1) On completing an investigation of a

privacy complaint, the commissioner may recommend that the head of a public

body

(

a) stop collecting, using or disclosing personal

information in contravention of this Act; or

(

b) destroy personal information collected in

contravention of this Act.

(2) The commissioner may also make

(

a) a recommendation that an information practice,

policy or procedure be implemented, modified, stopped or not commenced; or

(

b) a recommendation on the privacy aspect of the

matter that is the subject of the privacy complaint.

Report privacy complaint

(1) On completing an investigation of a

privacy complaint, the commissioner shall

(

a) prepare a report containing the commissioners

findings and, where appropriate, his or her recommendations and the reasons for

those recommendations; and

(

b) send a copy of the report to the person who

filed the privacy complaint and the head of the public body concerned.

(2) The report shall include information respecting

the obligation of the head of the public body to notify the person who filed

the privacy complaint of the heads response to the recommendation of the

commissioner within 10 business days of receipt of the recommendation.

Response of

public body privacy complaint

(1) The head of a public body shall, not

later than 10 business days after receiving a recommendation of the

commissioner,

(

a) decide whether or not to comply with the

recommendation in whole or in part; and

(

b) give written notice of his or her decision to

the commissioner and a person who was sent a copy of the report.

(2) Where the head of the public body does not

give written notice within the time required by subsection (1), the head of the

public body is considered to have agreed to comply with the recommendation of

the commissioner.

Head of public body

seeks declaration in court

(1) Where the head of the public body

decides under

section 78 not to comply with a

recommendation of the commissioner under subsection 76

(1) in whole or in part, the head shall, not later than 10 business days after

receipt of that recommendation,

(

a) apply to the Trial Division for a declaration

that the public body is not required to comply with that recommendation because

the collection, use or disclosure of the personal information is not in

contravention of this Act, and

(

b) serve a copy of the application for a

declaration on the commissioner, the minister responsible for the administration

of this Act, and a person who was sent a copy of the commissioners report.

(2) The commissioner or the minister responsible

for this Act may intervene in an application for a declaration by filing a

notice to that effect with the Trial Division.

Filing an order

with the Trial Division

(1) The commissioner may prepare and file

an order with the Trial Division where

(

a) the head of the public body agrees or is

considered to have agreed under

section 78 to

comply with a recommendation of the commissioner under subsection 76 (1) in whole or in part but fails to do so within

one year after receipt of the commissioners recommendation; or

(

b) the head of the public body fails to apply

under

section 79 to the Trial Division for a

declaration.

(2) The order shall be limited to a direction to

the head of the public body to do one or more of the following:

(

a) stop collecting, using or disclosing personal

information in contravention of this Act; or

(

b) destroy personal information collected in

contravention of this Act.

(3) An order shall not be filed with the Trial

Division until the time period referred to in paragraph (1)(

a) has passed.

(4) Where an order is filed with the Trial

Division, it is enforceable against the public body as if it were a judgment or

order made by the court.

DIVISION 3

APPLICATION TO THE TRIAL DIVISION FOR A DECLARATION

Practice and procedure

81. The practice and procedure under the Rules of the Supreme Court, 1986

providing for an expedited trial, or such adaption of those rules as the court

or judge considers appropriate in the circumstances, shall apply to an

application to the Trial Division for a declaration.

Solicitor and

client privilege

82. The solicitor and client privilege or

litigation privilege of a record which may contain personal information shall

not be affected by disclosure to the Trial Division.

Conduct

(1) The Trial Division shall review the

act or failure to act of the head of a public body that relates to the

collection, use or disclosure of personal information under this Act as a new

matter and may receive evidence by affidavit.

(2) In exercising its powers to order production

of documents for examination, the Trial Division shall take reasonable

precautions, including where appropriate, receiving representations without notice

to another person, conducting hearings in private and examining records in

private, to avoid disclosure of

(

a) any information or other material if the

nature of the information or material could justify a refusal by a head of a public

body to give access to a record or part of a record; or

(

b) the existence of information, where the head

of a public body is authorized to refuse to confirm or deny that the information

exists under subsection 17 (2).

Disposition

84. On hearing an application for a declaration,

the Trial Division may

(

a) where it determines that the head of the

public body is authorized under this Act to use, collect or disclose the personal

information, dismiss the application;

(

b) where it determines that the head is not authorized

under this Act to use, collect or disclose the personal information,

(

i) order the head of the public body to stop

using, collecting or disclosing the information, or

(ii) order the head of the public body to destroy

the personal information that was collected in contravention of this Act; or

(

c) make an order that the court considers

appropriate.

PART IV

OFFICE AND POWERS OF THE INFORMATION AND PRIVACY COMMISSIONER

DIVISION 1

OFFICE

Appointment of

the Information and Privacy Commissioner

(1) The office of the Information and

Privacy Commissioner is continued.

(2) The office shall be filled by the

Lieutenant-Governor in Council on a resolution of the House of Assembly.

(3) Before an appointment is made, the Speaker

shall establish a selection committee comprising

(

a) the Clerk of the Executive Council or his or

her deputy;

(

b) the Clerk of the House of Assembly or, where

the Clerk is unavailable,