IM NETWORK IM NETWORK MEETINGMEETING

2020THTH JULY, 2010 JULY, 2010

CONSULTATION CONSULTATION WITH 3WITH 3RDRD PARTIES PARTIES

Objects of the Law (s.4) -Objects of the Law (s.4) -TAPTAP

To reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy,

(a) transparency(b) accountability and(c) public participation in national

decision-making,by granting to the public a general right of access to records held by public authorities

Rights of third partiesRights of third parties

A “third party” is any person referred A “third party” is any person referred to in a requested record who is not to in a requested record who is not the applicant.the applicant.

The The personal informationpersonal information of third of third parties is to be protected.parties is to be protected.

A third party has the right to appeal if:A third party has the right to appeal if: An applicant has requested the third An applicant has requested the third

party’s personal information, party’s personal information, ANDAND The public authority intends to release it. The public authority intends to release it.

s. 23 –Personal informations. 23 –Personal information

The purpose of this section is to protect The purpose of this section is to protect personal information and privacy of natural personal information and privacy of natural persons, including deceased persons.persons, including deceased persons.

This a non absolute exemption that This a non absolute exemption that recognizes that there may be a public interest recognizes that there may be a public interest in disclosure in some individual cases.in disclosure in some individual cases.

This exemption does not apply when the This exemption does not apply when the applicant requests their own information - s. applicant requests their own information - s. 23(2) says records are NOT exempt where the 23(2) says records are NOT exempt where the application for access is made by the person application for access is made by the person to whose affairs the record relates!to whose affairs the record relates!

s. 23 – Personal s. 23 – Personal informationinformation

1.1. identify the personal information identify the personal information 2.2. consider whether the disclosure would be consider whether the disclosure would be

unreasonable.unreasonable.

Personal information is defined in the FOI Personal information is defined in the FOI Regs - but is not an exhaustive list.Regs - but is not an exhaustive list.

Personal information is information Personal information is information whether true or not about an individual whether true or not about an individual whose identity is apparent or can be whose identity is apparent or can be ascertained from the information (e.g.: by ascertained from the information (e.g.: by name, address, position, other elements).name, address, position, other elements).

What is “unreasonable” What is “unreasonable” disclosure?disclosure?

Factors that could be considered Factors that could be considered include:include: Whether the information is already in the Whether the information is already in the

public domainpublic domain The circumstances in which the information The circumstances in which the information

was obtained e.g in confidencewas obtained e.g in confidence The nature of the information e.g bland vs The nature of the information e.g bland vs

information of misconductinformation of misconduct Consideration of any objectionConsideration of any objection Whether the information relates to matters Whether the information relates to matters

of personality, private characteristics or of personality, private characteristics or disposition.disposition.

What is NOT Personal What is NOT Personal Information?Information?

Where the individual occupies or has Where the individual occupies or has occupied a position in a public authority, occupied a position in a public authority, the name of the person or information the name of the person or information relating to the position or its functions relating to the position or its functions or the terms upon and subject to which or the terms upon and subject to which the person occupies or occupied that the person occupies or occupied that position or anything written or recorded position or anything written or recorded in any form by the person in the course in any form by the person in the course of and for the purpose of the of and for the purpose of the performance of those functions;performance of those functions;

What is NOT Personal What is NOT Personal Information? Information?

Where the individual is or was Where the individual is or was providing a service for a public providing a service for a public authority under a contract for services, authority under a contract for services, the name of the individual or the name of the individual or information relating to the service or information relating to the service or the terms of the contract or anything the terms of the contract or anything written or recorded in any form by the written or recorded in any form by the person in the course of and for the person in the course of and for the purposes of the provision of the purposes of the provision of the service;service;

What is NOT Personal What is NOT Personal Information?Information?

The view or opinions of the The view or opinions of the individual in relation to a individual in relation to a public authority, the staff of a public authority, the staff of a public authority or the public authority or the business or the performance of business or the performance of the functions of a public the functions of a public authority. authority.

Information that would Information that would routinely or previously be routinely or previously be released before the FOI Law released before the FOI Law came into effect!came into effect!

What IS Personal What IS Personal Information?Information?

What IS Personal What IS Personal Information?Information?

An individual’s:An individual’s: name, home or business address or home name, home or business address or home

or business telephone numberor business telephone number race, national or ethnic origin, colour or race, national or ethnic origin, colour or

religious or political beliefs or associationsreligious or political beliefs or associations age, sex, marital status or family statusage, sex, marital status or family status identifying number, symbol or other identifying number, symbol or other

particular assigned to the individual particular assigned to the individual finger prints, other biometric information, finger prints, other biometric information,

blood type, genetic information or blood type, genetic information or inheritable characteristicsinheritable characteristics

What IS Personal What IS Personal Information?Information?

Information about the individual’s health and Information about the individual’s health and health care history, including information health care history, including information about a physical or mental disabilityabout a physical or mental disability

Information about the individual’s Information about the individual’s educational, financial, employment or educational, financial, employment or criminal history, including criminal records criminal history, including criminal records where a pardon has been givenwhere a pardon has been given

Anyone else’s opinions about the individual, Anyone else’s opinions about the individual, andand

The individual’s personal views or opinions, The individual’s personal views or opinions, except if they are about someone else.except if they are about someone else.

When must third parties be When must third parties be notified?notified?

Per the FOI Regulations, each authority must:Per the FOI Regulations, each authority must: Log the date a FOI application is receivedLog the date a FOI application is received Check whether the application will result in Check whether the application will result in

the release of the personal information of any the release of the personal information of any third party third party

Notify those third parties Notify those third parties in writingin writing within 14 within 14 days, and delay access so they have 28 days days, and delay access so they have 28 days (after notification) to object(after notification) to object

>> If no release would normally occur, no >> If no release would normally occur, no notice is required.notice is required.

How third parties must be How third parties must be notifiednotified

The authority must take all reasonable steps to The authority must take all reasonable steps to locate the third parties. The first notice should be locate the third parties. The first notice should be in writing, but if there is no response try phone, in writing, but if there is no response try phone, fax, email, and all other possible methods. fax, email, and all other possible methods.

Contents of the notice:Contents of the notice: ““A FOI request has been made for information which A FOI request has been made for information which

includes your personal information”includes your personal information” Describe the request and the record(s) concernedDescribe the request and the record(s) concerned ““Within 28 days you may either agree to disclosure or Within 28 days you may either agree to disclosure or

explain why the information should not be disclosed” explain why the information should not be disclosed” (the latter in written form)(the latter in written form)

““14 days after we hear from you (or after the 28 days 14 days after we hear from you (or after the 28 days expires), we will make our decision about release and expires), we will make our decision about release and advise you accordingly”advise you accordingly”

Third parties: making the decisionThird parties: making the decision

Information Managers may use their Information Managers may use their discretion to extend the 28 days discretion to extend the 28 days allowed for responses by third parties allowed for responses by third parties (especially if there is difficulty (especially if there is difficulty contacting them)contacting them)

Decision on access should be made Decision on access should be made within 14 days of the response being within 14 days of the response being received from the last of the third received from the last of the third parties (or the 28 days expiring)parties (or the 28 days expiring)

The Information Manager must give written The Information Manager must give written notice of each decision on access. notice of each decision on access.

Where third parties have been notified and Where third parties have been notified and the decision is to grant access, this written the decision is to grant access, this written notice goes to:notice goes to: a) the applicant;a) the applicant; b) the third party or parties; andb) the third party or parties; and c) the Information Commissioner.c) the Information Commissioner.

The notice to the third parties must include The notice to the third parties must include details of their rights of appeal of the decision details of their rights of appeal of the decision directly to the Information Commissioner.directly to the Information Commissioner.

Third parties: who is informedThird parties: who is informedwhen access is to be grantedwhen access is to be granted

The decision letter advises that access The decision letter advises that access will be given unless a third party will be given unless a third party appeals (against the decision) to the appeals (against the decision) to the Information Commissioner.Information Commissioner. Third parties must appeal within 30 days Third parties must appeal within 30 days

after the date of the decision.after the date of the decision. The Information Commissioner can The Information Commissioner can

optionally extend this period a further 30 optionally extend this period a further 30 days.days.

Therefore, in order to make sure there is no Therefore, in order to make sure there is no appeal, the authority must delay access (to appeal, the authority must delay access (to the applicant) until 60 days have passed.the applicant) until 60 days have passed.

Third parties: rights of appealThird parties: rights of appeal

Where the decision is Where the decision is not not to grant to grant access, the written notice to the access, the written notice to the applicant must include information applicant must include information about the applicant’s rights of appeal about the applicant’s rights of appeal against the decision to exempt the against the decision to exempt the information. information.

The applicant has the right to request The applicant has the right to request an internal review and/or appeal to an internal review and/or appeal to the Information Commissioner.the Information Commissioner.

Third parties: who is informedThird parties: who is informedwhen access is not grantedwhen access is not granted

Consulting third parties about requestsConsulting third parties about requestsfor other than personal informationfor other than personal information

When considering release of the following, When considering release of the following, check whether any third party may have sent check whether any third party may have sent or supplied the information or have a close or supplied the information or have a close and direct interest in it:and direct interest in it: Contracts and tendersContracts and tenders Other commercial information Other commercial information Information provided by foreign governments Information provided by foreign governments

Consultation with third parties may play an Consultation with third parties may play an important part in considering whether important part in considering whether exemptions apply, particularly those relating exemptions apply, particularly those relating to confidence & commercial sensitivity.to confidence & commercial sensitivity.

Where information is non personal:Where information is non personal: Consultation with interested third parties is Consultation with interested third parties is

“informal” only; the third parties’ views are “informal” only; the third parties’ views are not bindingnot binding

Third parties have no rights of appeal under Third parties have no rights of appeal under the FOI Lawthe FOI Law

Public authorities have the statutory Public authorities have the statutory authority to decide on access without authority to decide on access without formal consultation…with one formal consultation…with one exception…exception…

Consulting third parties about requestsConsulting third parties about requestsfor other than personal informationfor other than personal information

Consider whether the release of this Consider whether the release of this information would be an actionable information would be an actionable breach of confidence:breach of confidence: Where your authority expressly agrees or Where your authority expressly agrees or

undertakes to keep information confidential, undertakes to keep information confidential, there is an there is an express duty of confidenceexpress duty of confidence..

Where the nature of the information or the Where the nature of the information or the circumstances in which the information is circumstances in which the information is obtained imply that your public authority obtained imply that your public authority should keep the information confidential, should keep the information confidential, there is an there is an implied duty of confidenceimplied duty of confidence..

Requests for other than personal Requests for other than personal information: KEY EXCEPTIONinformation: KEY EXCEPTION

Scenarios – reasonable or Scenarios – reasonable or unreasonable to disclose?unreasonable to disclose?

1.1. Applicant asks for the salary and Applicant asks for the salary and employment contract of a consultant / employment contract of a consultant / employee.employee.

2.2. Applicant would like to know how many Applicant would like to know how many dependants an employee has.dependants an employee has.

3.3. An employee would like to view his entire An employee would like to view his entire personnel file, including the letters of personnel file, including the letters of complaints against him written by other complaints against him written by other staff members.staff members.

4.4. Criminal record of an employee.Criminal record of an employee.

5.5. Performance review of an employee.Performance review of an employee.