P.E.I.'s FOIPP review: Where the key players stand on releasing information to you

Do you have a burning question about what your government leaders and public officials are doing? Well, the provincial government wants your feedback on whether it should expand the provincial access to information and privacy act.

The province is in the middle of public consultations for reforms of the Freedom of Information and Protection of Privacy Act. Some of the big issues the government is asking Islanders about include whether to include municipalities, post-secondary institutions and provincial police under the act. The public has until Feb. 23 to submit feedback.

Here's what the act does, why it matters and the key stakeholders' views on what FOIPP modernization should look like.

What does FOIPP do?

There are two key pieces to the FOIPP act: access to information and the protection of personal information.

Any member of the public has the right to ask questions of the government and get a response within 30 days. Every government department, the office of the premier and provincial commissions and agencies are included in the act. In total, there are 126 public bodies you can request information from (here's the full list).

The public can request any record kept by the government ever, including internal reports, memos and emails. There are restrictions on what information can be released, such as cabinet confidences, personal information and information that could harm the business interests of a third party.

There's a $5 application fee, as well as charges for search time past two hours and producing the record.

About 96 per cent of the requests under the act are about access to information, with 46 per cent of those coming from political parties. In 2016, there were 317 requests to provincial bodies.

Privacy commissioner

Karen Rose, the province's information and privacy commissioner, issued a report last fall saying municipalities, post-secondary institutions and police should be included in the province's freedom of information act.

P.E.I. is the only province where municipalities are not subject to formal access to information laws and will soon be the only province where police are not subject to those laws (Saskatchewan recently included police in its act). It is also the only jurisdiction in Canada that does not include post-secondary institutions in the provincial act as a "public body."

Rose said in an interview that her office would act as a resource for the municipalities and post-secondary institutions should they be included in the act.

She said it would be easier for them to now be included in the act because it's been in place for 15 years and there have been many judgments and precedents they can use. She also believes the burden would not be as great as it would be if implementing a brand new act.

Finally, she noted the security of personal information is not adequately addressed in existing policies and bylaws.

One thing she says she would like to know is the public's thoughts on the cost of fees for access to information, something she didn't examine in her review.

Municipalities

Under the new Municipal Government Act, municipalities have until the end of the year to pass formal bylaws regarding access to information and privacy protection that would apply to new records, but not previously created information.

Neither the city of Charlottetown or Summerside have formal bylaws in place, yet but both municipalities said they act as though they are under the act already and have provided information as it has been requested.

Charlottetown's mayor sees no issue with the city coming under the provincial legislation. While there is no formal bylaw in place, Clifford Lee says the city makes information available upon request and doesn't charge anything to requesters.

But, there are concerns from smaller municipalities about the potential costs involved and records management.

Bob Ashley, Summerside's chief administrative officer, said the city is in favour of the spirit of the law and acts as much as it can to provide information publicly and upon request.

"We don't really experience any problems with information because the default is be open whenever you can," he said.

But a full implementation of the province's act would cause problems, he said. He's concerned with the potential costs involved in searching for records that date back years, legal consultation and records management systems.

"We would not be prepared for that unless some support was offered from the provincial government that recognizes that a transition to a full FOIPP system demands resources along the lines of modern record management archival and retrieval," Ashley said.

He also said he would like to wait and see the bylaws that municipalities will implement this year and give them time to see how they function rather than being a part of provincial legislation right away.

Bruce MacDougall, the president of the Federation of Prince Edward Island Municipalities, echoed those concerns, saying smaller municipalities do not have the resources to implement the provincial act.

Both Ashley and MacDougall said they would like to see provincial support should municipalities be included.

​Post-secondary institutions

Both UPEI and Holland College implemented new access to information policies in 2017 that became effective May 1. UPEI has received about 10 requests and Holland College has so far not received any formal requests.

Both only apply to records created after the policy became effective and have an internal appeals process. If they were to become part of the provincial legislation, they, like municipalities, would be subject to records at any time and subject to an outside appeal. They also charge $25 to formally request information or change personal records.

Both have identical language in their policies that states they "routinely makes large amounts of institutional and other information available to the public on its website."

"Holland College is satisfied that its Access to Information and Protection of Personal Information Policy is sufficient and strikes a balance between access to information and personal privacy," Michael O'Grady, vice-president innovation, enterprise and strategic development, said in an email.

The UPEI student union said it has been advocating for post-secondary inclusion in the act since 2014 and noted that despite the university's new policy, "independent oversight is necessary in order to provide appropriate accountability measures."

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