By Pepper Parr
March 17, 2014
BURLINGTON, ON.
Information is power. Knowing what is happening gives the person with the information an advantage over the person who doesn’t have that information.
City hall has tons of information – getting at it is not always easy.
The city recently released a report, it was put together by Andrea Holland of the Clerks department and covers almost every sin imaginable when it comes to what information there is, what you can have, what you can’t have and how you get it. It’s not exactly an easy read but the information is there.
Transparency, accountability and privacy are common themes today. The City of Burlington is committed to fostering a culture of transparency, based on the principle that city information:
Must be provided to the public, limited by a few exceptions
Should be released proactively and responsibly.
Early in this decade the provincial government created the Freedom of Information and Protection of Privacy Act; FIPPA for short. The purposes of this Act are,
(a) to provide a right of access to information under the control of institutions in accordance with the principles that,
(i) information should be available to the public,
(ii) necessary exemptions from the right of access should be limited and specific, and
(iii) decisions on the disclosure of government information should be reviewed independently of government; and
(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.
The province then created a sub set for the municipal sector and called that MFIPPA. In order to provide clarity around the FIPPA legislation with regards to records of members of council and the protection of personal information contained within those records, staff have prepared a reference guide – Access, Privacy and Records, A Guide for Council. It is to provide you with information to make informed decisions about the personal information you have within your office.
The guide was prepared in consultation with staff and members of council to ensure that the information provided was clear and informative. Further research was conducted on Information and Privacy Commission orders that have been issued with respect to councilor records as well discussions with staff from the Ministry of Government Services.
The Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) came in to effect on January 1, 1991. It applies to all municipalities in Ontario, including local agencies, boards and commissions, school boards and police services.
MFIPPA has two purposes:
Allows every person to request information from a municipality
Describes how the municipality must respond to requests, step by step
Lists limited and specific situations where access must not or may not be granted
Allows individuals to access and correct their own personal information
Requires that municipalities protect personal information in their care
Establishes rules for how personal information must be managed, including proper collection, use and disclosure
Compliance with MFIPPA is overseen by the Office of the Information and Privacy Commissioner of Ontario (IPC). If a requester is not satisfied with the quantity or quality of information released by a municipality in an access to information decision (e.g. adequacy of a record search, information withheld under an exemption), or if an individual feels that their privacy has been breached while interacting with a
municipality, appeals and complaints may be made to the commissioner. Following an investigation, the IPC will then issue a public order or report describing the circumstances of an appeal or complaint, and what must be done to resolve the matter.
Transparency, accountability and privacy are common themes today. The City of Burlington is committed to fostering a culture of transparency, based on the principle that city information:
Must be provided to the public, limited by a few exceptions
Should be released proactively and responsibly.
This report explains how MFIPPA applies to elected officials at the City of Burlington, and provides guidance for how to comply with the Act in daily practice.
MFIPPA and the City of Burlington:
The City Clerk has been delegated with the responsibility for overseeing and administering MFIPPA within the municipality. Within the Clerks Department, the Records and Information Coordinator is responsible for the receipt and processing of access requests, providing advice and consultation to corporate staff, serving members of the public, and advocating for privacy and confidentiality throughout the organization.
FOI request process:
1. A request is received via mail, or in person at the Service Burlington counter. Requests must be accompanied by a legislated $5 fee.
2. The records and information coordinator sends a search memo to all affected departments and staff, which may include individual members of council.
3. Within 7 days, the affected departments and/or individuals provide unaltered and entire records to the records and information coordinator, along with recommendations on release, for analysis.
4. The records and information coordinator analyzes each record to determine whether or not it should be released under MFIPPA. At this stage, the Clerk’s department may seek an opinion from the City’s legal counsel.
5. When analysis is complete, a release package is prepared and approved by the City Clerk. Records may be released in part or in full, or withheld in their entirety, in situations where all responsive records are exempt from disclosure, or where no records exist.
6. All records pertaining to the request are securely stored in a locked cabinet in the Clerks Department until the required retention period has expired.
What is a record:
MFIPPA defines ‘record’ as “any record of information however recorded, whether in printed form, on film, by electronic means or otherwise.” The definition is broad in order to include the full range of possible information formats.
Under MFIPPA, councillors are not considered to be officers or employees of the corporation and records related to interactions with their constituents as elected officials (constituency records) are therefore not covered by MFIPPA and therefore not accessible under the Act. However, if a member of council holds corporate records 
created by the City of Burlington, or is discussing city business, or where they relate to city business such as communicating directly with City staff, that information may be accessible under MFIPPA.
Councillor Assistants are considered to be City of Burlington employees, to which MFIPPA access provisions do apply.
Constituency records:
Records of a councillor acting on behalf of a constituent and representing their interests are not accessible under MFIPPA. This includes all content, opinions and personal information contained in any correspondence to and from a constituent, i.e. name, phone number, email and mailing address. For more details on what constitutes personal information, see Definitions below.
Examples:
Correspondence from a constituent concerning a pothole in their neighbourhood
Email from a constituent requesting that the councillor attend a community event
Correspondence between a councillor and a private sector company
City business records:
Corporate records include information that is related to the business of the city, its agencies and boards, and may be requested through MFIPPA. All corporate records related to city business are also governed by the City of Burlington records retention by law 97-2005 and amending by-law 62-2013.
Examples:
Email sent to city staff and members of council, including carbon copies (cc).
Councillor records that advance the interests of the city.
Councillor forwards request for pothole repair to Roads and Parks Maintenance.
Roads and Parks Maintenance receives a request sent via email directly from a constituent to repair a city owned asset.
Email from a citizen, forwarded to a city department by a Councillor’s Assistant for follow up
Records related to a Council member’s involvement with a City agency, when acting on behalf of the city.
Email:
Email between Council members and city staff is typically accessible under MFIPPA. Other email contents which are not generally accessible under MFIPPA include:
Citizen contact lists, addresses and phone numbers stored in email systems (hosted and on site, i.e. Outlook; Constant Contact.)
Emails between a member of council and a constituent or local business
Personal emails sent from one member of Council to another.
When a FOI request is received for councillor records, all requests will be analyzed on their own merit and a decision will be made whether the records are subject to MFIPPA or not, and if they are, a further decision will be made to release or withhold. Each request represents a unique set of circumstances that will need to be considered.
Councillor records management: During the term of office and when re-elected.
At the start of each term of office, members of Council will receive training on MFIPPA as part of Council orientation.
Corporate records related to city business must be retained and disposed of according to the City of Burlington records retention by-law.
Confidential and Transitory information, including draft or working documents and duplicate copies, can be securely destroyed in a locked shredding bin or with a cross-cut shredder when no longer required. On-site shredding services are highly recommended for secure disposal of personal, confidential and sensitive information.
Constituent records fall under the sole custody and control of the member of council. Even though MFIPPA does not apply to these records, each councillor should take steps to safeguard any personal information that is in their possession from unintended use or disclosure.
Constituent records can be treated as “General Correspondence” for retention purposes, with a suggested retention period of Current + 4 years.
Any constituent records and/or personal information that has been collected by a member of Council or received through the Councillor’s office, including contact details, that resides on city email or other city-owned resources, can not be shared or used for any purpose without the individual’s prior consent. Similarly, contact information cannot be shared with election teams without prior consent to do so from the individual. The voter’s list is not intended for use related to constituency business.
Before leaving office, a councillor may forward any outstanding constituency matters or ward-related documents to their assistant for future follow up with a request to the affected constituent for approval to send the unresolved matter to the incoming councillor.
Private or personal contacts saved in Outlook folders must be destroyed.
If an elected official wishes to retain a copy of any records associated with their time in office, contact the City Clerk.
Any records and documents retained by former councillors must be kept according to the City of Burlington records retention by-law. Electronic records should be encrypted, using one of several methods available.
When there is a change in office, the Councillor’s assistant should send an email to all current recipients of the Ward newsletter, offering a clear option to opt in and continue receiving the newsletter, or to opt out from future communication.
One example is provided below:
“As you may be aware, a new Councillor will be in place for Ward X as of December 1. If you wish to continue receiving the Ward X newsletter, please opt in at the link below.”
Collection, use and disclosure under MFIPPA
MFIPPA includes specific requirements for how municipalities collect, use and disclose personal information.
Every time that personal information is collected by a municipality, notice must be provided to the affected individual(s) which states:
The legal authority to collect
The purpose(s) for which the personal information will be used
The title, business address and telephone contact for an officer or employee who can answer questions about them collection.
MFIPPA prohibits the collection of personal information unless the collection is:
Expressly authorized by law, or
Used for the purposes of law enforcement, or
Necessary to the administration of a lawfully authorized activity.
The personal information collected by an institution may only be used under the following conditions:
With informed consent from the individual
For the purpose for which it was obtained or compiled, or for a consistent purpose.
A municipality is not permitted to disclose personal information in its custody or under its control, unless the person to whom the information relates has consented to its disclosure, or in a few other limited circumstances described under the Act, for example: when there is statutory authority to disclose for law enforcement purposes.
Example:
The name and address of a citizen signing in at a public meeting can only be disclosed if the citizen provided consent,or if the possibility of disclosure was indicated in a written collection notice posted at the meeting.
The use and disclosure of personal information must always be consistent with the original purpose for which it was collected.
A consistent purpose is defined under MFIPPA as something an individual might reasonably have expected. Reasonable expectations are typically established in collection notices.
Under MFIPPA, councillors do not have any special right of access to records held by municipalities, including the personal information of citizens and employees.
In other words, members of council may only access information that would not normally be exempt from disclosure under MFIPPA. The same is true for former members of council or employees who, at one time, may have had access to records in the performance of their duties.
This approach is intended to protect members of council and the City of Burlington from the following risks:
Contravening MFIPPA
Breach of privacy or confidentiality
Negative media exposure Example:
Members of Council cannot access contact information listed on public meeting sign-in sheets unless the attendee has consented to that kind of disclosure in advance.7
Records of unsuccessful tender submissions for a city construction project are reviewed and redacted according to MFIPPA exemptions before being received by a member of council, if requested outside of standing committee and council documentation
Councillors may have a right of access to certain types of information that would not be available to the general public, if they require the information in their capacities as members of council in order to carry out duties related to that function.
Councillors who wish to request information from the City of Burlington outside of their official capacity may submit an FOI request to the Clerk’s department at any time.
Access to personal information:
Where a councillor acting in their official capacity seeks access to personal information held by the city (for example, the personal information of an employee), information may only be obtained if the individual has provided prior consent.
The Mayor, as Head of Council, is considered an “officer” of the City. The Mayor’s records that relate to the mayoral duties, as opposed to constituency or personal papers, are considered to be in the City’s custody or control and therefore may be requested under MFIPPA.
Examples of mayoral duty records, which may be accessible:
Notes taken at Burlington Hydro meeting, while acting in official capacity
Speech delivered at opening of new recreational facility
Staff within the Office of the Mayor are considered to be in political positions, to which MFIPPA access provisions do not normally apply. For example, an email sent from the Mayor to one of their staff members would not typically be accessible under MFIPPA. However, if city staff are copied on the email, it could be accessible.
Any time that the Mayor or one of his or her staff forwards a customer service or constituency matter to city staff for follow up, that record may also be requested under MFIPPA.
This is in contrast to staff working within Councillor offices, who are considered to be City of Burlington employees to which MFIPPA access provisions do apply.
Definition of personal information:
“personal information” means recorded information about an identifiable individual, including,
(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,
(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, telephone number, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except if they relate to another individual,
(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,
(g) the views or opinions of another individual about the individual, and
(h) the individual’s name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual.
There you have it. Not the kind of document you will take to the beach to read in the summer – but it is the kind of document you might want to refer to – and it will be on the Gazette website for a long time – until it is revised.
In the past these rules have not been fully observed. with an informed public – we just might see better compliance.
You write that “early in this decade the provincial government created the Freedom of Information and Protection of Privacy Act; FIPPA for short.” I believe that you’ll find that the Provincial Act came into force on January 1, 1988 and was the product of two commissions, the Krever Commission on the Confidentiality of Health Records reported in 1980 and the Williams Commission which also submitted its final report, “Public Government for Private People”, in 1980. The provincial FIPPA from which MFIPPA derives is almost a direct ‘word for word’ translation of the Williams Commission provisions.
Editor’s note: It is wonderful to have readers with this kind of depth. Thank you for adding to what we had; appreciated.