This new bulletin explains the provisions for consent and authentication in section 6 of the FOIP Regulation and provides guidance with respect to the policies or "rules" that public bodies must establish in order to accept consent electronically or orally.

See http://www.foip.gov.ab.ca/resources/publications/bulletin17.cfm.

The FOIP concordance and legislative history table on the FOIP web site has been updated to reflect the recent amendments to the FOIP Act and Regulation. The table tracks changes to the FOIP Act since it received Royal Assent, and allows users to find out whether provisions interpreted in Commissioner's Orders have been renumbered or amended since an Order was issued.

The table of legislation paramount over the FOIP Act has also been updated. The table lists those Acts and Regulations which have provisions that prevail despite the FOIP Act.

The Applicant requested his mental health records from three hospitals in the Calgary Health Region (CHR). The CHR provided all records but withheld the names, initials, signatures, position titles, professional designations and credentials of individuals in the health, law enforcement corrections and legal systems. The CHR cited sections 11(1)(a)(ii) and 11(1)(a)(iii) of the Health Information Act (HIA) – disclosure reasonably expected to threaten mental or physical health or safety of other individuals and to pose a threat to public safety – in withholding the information. The CHR also argued that, if the information was not health information under the HIA, it was personal information under the FOIP Act and could be withheld under section (18)(a) – disclosure expected to threaten health or safety of someone else, or section 17 – unreasonable invasion of privacy.

The Commissioner found that the information of both CHR staff and individuals in the justice, law enforcement, corrections and legal systems was “health information” under the HIA. Because the Applicant moved between the justice and health systems, all of the information became part of the hospital records for the purpose of providing health services to the Applicant. Therefore, the Commissioner found that the CHR had properly processed the request under the HIA. He did not have to consider whether the FOIP Act applied.

The Commissioner found that the CHR properly withheld the information under section 11 of the HIA. He did not give weight to an expert opinion, which he said provided insufficient evidence to support application of the exception to access However, the Commissioner found that the evidence in records submitted for the inquiry provided sufficient evidence to demonstrate the legitimate health and safety concerns in disclosing the information.

The Applicant made a request to the City of St. Albert for a copy of a Fisheries Inspector’s Direction. The Direction was issued to the City by Environment Canada, under the federal Fisheries Act. The Direction related to the discharge of a substance from a former landfill site within the City. The City withheld the record under the exception to disclosure for law enforcement (section 20). The Applicant asked the Information and Privacy Commissioner to review the City’s decision.

The City submitted that the Applicant’s right of access was under the federal Access to Information Act. The City also submitted that if the record were released, the resulting publicity would harm, or interfere with, an ongoing federal investigation. In addition, the City claimed that the record was used in the exercise of prosecutorial discretion.

The Adjudicator found that the Applicant could have made the request under either the federal or provincial Acts. A right of access under the federal legislation does not preclude an Applicant from making a request under provincial legislation.

While the Adjudicator agreed that the record fit the definition of law enforcement, he found that the City of St. Albert did not adequately demonstrate any specific harm that might result from release of the record, such as substantive evidence that withholding the record was necessary to defend itself in the event the matter is heard by the courts.

The Adjudicator highlighted that the “purpose of the law enforcement exception is to ensure that legitimate law enforcement activities are not compromised. It is not to protect public bodies from public opinion and pressure when law enforcement is directed at them. Any anticipated harm must relate to the law enforcement matter and not to the public body.”

The City was ordered to disclose the record.

The Applicant requested access to her personal files from the University. The University disclosed a large number of the 4,200 pages of responsive records, but withheld some on the basis of specified exceptions, and indicated that some had been destroyed.

The Applicant alleged that a record she had requested had been purposely taken off campus to avoid providing access. The Applicant also alleged that the University destroyed records before the one-year retention period required under section 35(b) of the FOIP Act had expired.

This Order provides the first consideration by the Commissioner of what is an acceptable written agreement allowing for a retention period of less than a year under section 35(b). The Applicant requested information which had been destroyed less than one year after the relevant decision was made. The collective agreement between the University and the Association of Academic Staff contains a provision allowing for the destruction of certain documents six weeks after the decision is issued. The Adjudicator found that this constituted a written agreement for the purpose of section 35(b). The Applicant was not a personal signatory, but she was a member of the Association at the relevant time, which signed on her behalf. Nothing in the language of section 35(b) requires the written agreement be created to address a specific case rather than a pre-existing agreement.

The actions of the University of Alberta were upheld.

The Applicant made an access request to the Calgary Health Region (CHR) for psychological questionnaires in her daughter’s hospital records. The CHR refused to disclose the records under section 11(1)(e) – standardized diagnostic tests or assessments – of the Health Information Act (HIA). Prior to inquiry, the CHR also claimed that the FOIP Act exception to disclosure for third party business interests (section 16(1)) applied to the records.

A preliminary issue was raised at inquiry as to whether the Applicant had authority to exercise the rights or powers of her daughter (a minor) under section 104(1) of the HIA.

The Commissioner found that the records contained health information under the HIA and, as such, were carved out of the FOIP Act by virtue of the FOIP Act’s exclusion for health information in section 4(1)(u) (for the reasons discussed in Order F2004-005).

The Commissioner found that the Applicant did not have the authority under section 104(1)(c) of the HIA to exercise her daughter’s right if access. The Applicant failed to prove that the daughter did not understand the nature of her right or power under section 104(1)(b) of the HIA and the consequences of exercising that right or power. Records written at the time of the request showed that the then 15 ½ year old daughter was a mature minor. The Applicant failed to produce any evidence to the contrary.

In his decision, the Commissioner examined the meaning of the word “understand” and canvassed case law and other legislation for their approach to mature minors.

Since the Applicant did not have the authority to exercise her daughter’s right of access, the Commissioner found that he did not have jurisdiction to decide whether the CHR had properly applied the HIA in withholding the records.

The Applicant made a request to the David Thompson Health Region for records about himself. The health region did not locate any records responsive to the request. The Applicant appealed the decision of the health region - in particular, the adequacy of the search for records.

The Applicant stated that his wife had also made an access request to the health region for her own personal information. In response, the health region provided her with records that contained several references to him. The Applicant stated that the existence of these records suggested that the health region did not complete an adequate search in response to his request.

The records provided to the Applicant’s wife did contain references to the Applicant, but only indirectly by using the words “he”, “him” and “husband”. The Applicant himself had not had any contact with the David Thompson Health Region.

In a recent news release, the Information and Privacy Commissioner responded to a study by Ryerson University into employee monitoring and surveillance. The study, Under the Radar, surveyed medium and large private-sector employers about activities such as the use of closed circuit television cameras, email monitoring and GPS tracking of company vehicles.

For a copy of the news release, see http://www.oipc.ab.ca/ims/client/upload/NR-RyersonStudy_July_12_2006.pdf. For a copy of the study, see http://www.ryerson.ca/faculties/business/news/archive/UnderTheRadar.pdf.