Bill 82 - Access to Information and Protection of Privacy Act

BILL 82

Access to Information and Protection of Privacy Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

DEFINITIONS, PURPOSES AND APPLICATION

Definitions

1 The following definitions apply in this Act.

“applicant” means a person who makes a request for access to a record under section 7. (auteur de la demande)

“Commissioner ” means the Access to Information and Privacy Commissioner appointed under section 47. (commissaire)

“educational body” means (organisme d’éducation)

(a) a school district established under the Education Act,

(b) a District Education Council established under the Education Act,

(d) Université de Moncton,

(e) St. Thomas University,

(f) Mount Allison University,

(g) a New Brunswick Community College, and

(h) any other body designated in Schedule A as an educational body.

“employee”, in relation to a public body, includes a person retained under a contract to perform services for the public body. (employé)

“government body” means (organisme gouvernemental)

(a) any board, Crown corporation, commission, association, agency or similar body, whether incorporated or unincorporated, all the members of which, or all the members of the board of management or board of directors or governing board of which, are appointed by an Act of the Legislature or by the Lieutenant-Governor in Council, and

(b) any other body designated in Schedule A as a government body.

“head”, in relation to a public body, means (responsable d’un organisme public)

(a) in the case of a department, secretariat or office of the Government of New Brunswick specified in Part I of the First Schedule of the Public Service Labour Relations Act, the Minister of the Crown who presides over it,

(b) in the case of a school district, the superintendent,

(c) in the case of a regional health authority or other body listed in Part III of the First Schedule of the Public Service Labour Relations Act, the chief executive officer,

(d) in the case of a body listed in Part IV of the First Schedule of the Public Service Labour Relations Act, the chief executive officer,

(e) in the case of a government body, the person designated in Schedule A to act as the head, or where no person is so designated, the Minister of the Crown responsible for the administration of the Act under which the government body is established,

(f) in the case of a university, the chancellor or president,

(g) in the case of a New Brunswick Community College, the Minister of Post-Secondary Education, Training and Labour,

(h) in the case of a municipality or rural community, that person or group of persons chosen from among the members of the council or rural community council and designated by by-law or resolution to serve as the head,

(i) in the case of a local service district established under the Municipalities Act, the Minister of Local Government,

(j) in the case of a police force, the chief of police,

(k) in the case of other local government bodies, that person or group of persons chosen by and from among the members elected or appointed to the board and designated in writing, and

(l) in any other case, the person or group of persons designated in Schedule A to act as the head of the public body.

“health care body” means (organisme de soins de santé)

(a) a regional health authority and any other body listed in Part III of the First Schedule of the Public Service Labour Relations Act, and

(b) any other body designated in Schedule A as a health care body.

“local government body” means (organisme d’administration locale)

(a) a municipality or any office of a municipality, including a municipal police force,

(b) a local service district,

(d) a local board as defined in section 90.1 of the Municipalities Act, and

(e) any other body designated in Schedule A as a local government body.

“local public body” means (organisme public local)

(a) an educational body,

(b) a health care body, and

“Minister” means the Minister of Supply and Services. (ministre)

“officer of the Legislative Assembly” means the Speaker of the Legislative Assembly, the Clerk of the Legislative Assembly, the Chief Electoral Officer, the Ombudsman, the Child and Youth Advocate, the Consumer Advocate for Insurance, the Conflict of Interest Commissioner, the Access to Information and Privacy Commissioner and the Auditor General. (fonctionnaire de l’Assemblée législative)

“personal information” means recorded information about an identifiable individual, including but not limited to, (renseignements personnels)

(a) the individual’s name,

(b) the individual’s home address or electronic mail address or home telephone or facsimile number,

(d) information about the individual’s ancestry, race, colour, nationality or national or ethnic origin,

(e) information about the individual’s religion or creed or religious belief, association or activity,

(f) personal health information about the individual,

(g) the individual’s blood type, fingerprints or other hereditary characteristics,

(h) information about the individual’s political belief, association or activity,

(i) information about the individual’s education, employment or occupation or educational, employment or occupational history,

(j) information about the individual’s source of income or financial circumstances, activities or history,

(k) information about the individual’s criminal history, including regulatory offences,

(l) the individual’s own personal views or opinions, except if they are about another person,

(m) the views or opinions expressed about the individual by another person, and

(n) an identifying number, symbol or other particular assigned to the individual.

“public body” (organisme public)

(a) means

(i) a department, secretariat or office of the Government of New Brunswick, including but not limited to those portions of the public service specified in Part I of the First Schedule of the Public Service Labour Relations Act,

(ii) a government body, board, Crown corporation or commission listed under Part IV of the First Schedule of the Public Service Labour Relations Act,

(iii) a government body,

(iv) the office of a Minister of the Crown, or

(v) a local public body;

(b) but does not include

(i) the office of a member of the Legislative Assembly,

(ii) the office of an officer of the Legislative Assembly, or

(iii) The Court of Appeal of New Brunswick, The Court of Queen’s Bench of New Brunswick or the Provincial Court of New Brunswick.

“public registry” means a registry of information designated in the regulations that is maintained by a public body and is available to the general public. (registre public )

“record” means a record of information in any form, and includes information that is written, photographed, recorded or stored in any manner, on any storage medium or by any means, including by graphic, electronic or mechanical means, but does not include electronic software or any mechanism that produces records. (document)

“review committee” means the Privacy Assessment Review Committee established by the Minister under section 74. (comité d’évaluation)

“third party” means a person, group of persons or an organization other than an applicant or a public body. (tiers)

Purposes of this Act

2 The purposes of this Act are to make public bodies accountable to the public and to protect the privacy of the public by

(a) allowing any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,

(b) allowing individuals a right of access to records containing personal information about themselves in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,

(c) allowing individuals a right to request corrections to records containing personal information about themselves in the custody or under the control of public bodies,

(d) controlling the manner in which public bodies may collect personal information from individuals and protecting individuals against unauthorized use or disclosure of personal information by public bodies, and

(e) providing for an independent review of the decisions of public bodies under this Act.

Application

3 This Act

(a) is in addition to and does not replace existing procedures for access to records or information normally available to the public, including any requirement to pay fees,

(b) does not prohibit the transfer, storage or destruction of any record in accordance with any other Act of the Legislature or of the Parliament of Canada or a by-law or resolution of a government body or local public body,

(d) does not affect the power of a court or tribunal to compel a witness to testify or to compel the production of documents.

Records to which this Act applies

4 This Act applies to all records in the custody of or under the control of a public body but does not apply to

(a) information in a court record, a record of a judge, a judicial administration record or a record relating to support services provided to a judge or to a court official,

(b) a record pertaining to legal affairs that relate to the performance of the duties and functions of the Office of the Attorney General,

(c) a note made by or for, or a communication or draft decision of, a person who is acting in a judicial or quasi-judicial capacity,

(d) a record of a member of the Legislative Assembly who is not a Minister of the Crown,

(e) a personal or constituency record of a Minister of the Crown,

(f) a record made by or for an officer of the Legislative Assembly,

(g) a record made by or for an elected official of a local public body relating to constituency matters,

(h) teaching materials or research information of an employee of an educational institution,

(i) a question that is to be used on an examination or test,

(j) a record relating to a prosecution or an inquest under the Coroners Act if all proceedings concerning the prosecution or inquest have not been completed,

(k) a record in the care, custody and control of the Provincial Archives, and

(l) a record originating from a credit union that is in the custody of or under the control of the New Brunswick Credit Union Deposit Insurance Corporation under the Credit Unions Act.

If access prohibited under another Act and sunset provision

5(1) The head of a public body shall refuse to give access or disclose information to an applicant under this Act if the access or disclosure is prohibited or restricted by another Act of the Legislature.

5(2) If a provision of this Act is inconsistent with or in conflict with a provision of another Act of the Legislature, the provision of this Act prevails unless the other Act of the Legislature expressly provides that it, or a provision of it, prevails despite this Act.

5(3) Three years after the coming into force of section 6, subsection (1) is repealed and subsection (2) comes into force.

PART 2

ACCESS TO INFORMATION

Division A

Obtaining access to records

Right of access

6(1) An applicant for access to a record under section 7 has a right of access to any record in the custody or under the control of a public body, including a record containing personal information about the applicant.

6(2) The right of access to a record does not extend to information that is excepted from disclosure under Division B or C of this Part, but if that information can reasonably be severed from the record, an applicant has a right of access to the remainder of the record.

6(3) The right of access to a record is subject to the payment of any fee prescribed by regulation.

Request for access

7(1) To obtain access to a record, a person shall make a request, in writing or by electronic means, for access to the record to the public body that the person believes has custody or control of the record.

7(2) A request for access to a record shall

(a) provide enough particularity as to time, place and event to enable a person familiar with the subject matter to identify the relevant record, and

(b) include any information prescribed by regulation.

7(3) An applicant may make an oral request for access to a record if the applicant

(a) has a limited ability to read or write in English or French, or

(b) has a disability or condition that impairs his or her ability to make a written request.

Duty to assist applicant

8 The head of a public body shall make every reasonable effort to assist an applicant, without delay, fully and in an open and accurate manner.

Access to records in electronic form

9(1) If requested information is in the custody or control of a public body in electronic form, the head of the public body shall produce a record for the applicant if

(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.

9(2) If a record exists but is not in the form requested by the applicant, the head of the public body may create a record in the form requested if the head is of the opinion that it would be simpler or less costly for the public body to do so.

Time limit for responding

10(1) The head of a public body shall respond to a request for access to a record in writing within 30 days after receiving the request unless

(a) the time limit for responding is extended under subsection (3) or (4),

(b) the request has been transferred under section 12 to another public body, or

10(2) The failure of the head of a public body to respond to a request for access to a record within the 30 day period or any extended period is to be treated as a decision to refuse access to the record.

10(3) The head of a public body may extend the time for responding to a request for up to an additional 30 days if

(a) the applicant does not give enough detail to enable the public body to identify a requested record,

(b) the applicant does not respond to a request for clarification by the head of the public body as soon as practicable,

(c) a large number of records is requested or must be searched or responding within the time period set out in subsection (1) would interfere unreasonably with the operations of the public body,

(d) time is needed to notify and receive representations from a third party or to consult with another public body before deciding whether or not to grant access to a record,

(e) a third party refers the matter to a judge of The Court of Queen’s Bench of New Brunswick under subsection 62(1) or files a complaint with the Commissioner under paragraph 64(1)(b), or

(f) the applicant requests records that relate to an action in a proceeding commenced by a Notice of Action.

10(4) In any case referred to in subsection (3), the head of a public body may extend the time limit for responding to a request for a longer period than 30 days if approved by the Commissioner.

10(5) If the time is extended under subsection (3) or (4), the head of the public body shall send a written notice to the applicant setting out

(a) the reason for the extension,

(b) when a response can be expected, and

(c) where the time limit is extended without the approval of the Commissioner, that the person may file a complaint with the Commissioner about the extension.

Application deemed abandoned

11(1) If the head of the public body sends to the applicant a request for clarification in writing or a request in writing that the applicant shall pay or agree to pay fees for access to a record and the applicant does not respond to the request within 30 days after receiving the request, the request for access to a record shall be deemed abandoned.

11(2) If the request is deemed abandoned under subsection (1), the head shall notify the applicant in writing of his or her right to file a complaint with the Commissioner with respect to the abandonment.

Transferring a request for access

12(1) Within 10 days after a public body receives a request for access to a record, the head of the public body may transfer the request to another public body if

(a) the record was produced by or for the other public body,

(b) the other public body was the first to obtain the record, or

12(2) If a request for access to a record is transferred under subsection (1),

(a) the head of the public body who transferred the request shall notify the applicant of the transfer in writing as soon as possible, and

(b) the head of the public body to which the request is transferred shall respond to the request within 30 days after receiving it, unless the time limit is extended under subsection 10(3) or notice is given to a third party under section 32.

Contents of response

13(1) In a response under subsection 10(1), the head of the public body shall inform the applicant

(a) as to 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, of the manner in which access will be given, and

(i) in the case of a record that does not exist or cannot be located, that the record does not exist or cannot be located;

(ii) in the case of a record that exists and can be located, of the reasons for the refusal and the specific provision of this Act on which the refusal is based;

(iii) of the title and business telephone number of an officer or employee of the public body who can answer the applicant’s questions about the refusal; and

(iv) that the applicant has the right to file a complaint with the Commissioner about the refusal or to refer the matter to a judge of The Court of Queen’s Bench of New Brunswick for review.

13(2) Despite paragraph (1)(c), the head of a public body may, in a response, refuse to confirm or deny the existence of

(a) a record containing information described in section 26 or 27,

(b) a record containing personal information about a third party if disclosing the existence of the record would be an unreasonable invasion of the third party’s privacy.

13(3) A head of a public body may disregard a request for access to a record if, in the opinion of the head,

(a) the request is incomprehensible, frivolous or vexatious,

(b) because of the repetitious or systematic nature of the request and previous requests, the request would unreasonably interfere with the operations of the public body or amount to an abuse of the right to request information, or

How access will be given

14(1) Subject to subsection 6(2), the right of access to a record is met under this Part

(a) if the applicant has asked for a copy and the record can reasonably be reproduced, by giving the applicant a copy of the record, or

(b) if the applicant has asked to examine a record or has asked for a copy of a record that cannot reasonably be reproduced, by permitting the applicant to examine the record or a part of the record or by giving him or her access in accordance with the regulations.

14(2) The head of a public body who gives access to a record may give the applicant any additional information that the head believes may be necessary to explain the record.

14(3) The head of a public body shall only be required to give access to a record in the language or languages in which the record was made.

Division B

Mandatory exceptions to disclosure

Executive Council confidences

15(1) The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council, including but not limited to,

(a) an agenda, minute or other record of the deliberations or decisions of the Executive Council,

(b) discussion papers, policy analyses, proposals, advice or similar briefing material submitted or prepared for submission to the Executive Council,

(c) a proposal or recommendation prepared for, or reviewed and approved by, a Minister of the Crown for submission to the Executive Council,

(d) a record that reflects communications among ministers of the Crown relating directly to the making of a government decision or the formulation of government policy, and

(e) a record prepared to brief a Minister of the Crown about a matter that is before, or is proposed to be brought before, the Executive Council or that is the subject of communications referred to in paragraph (d).

15(2) With the approval of the Executive Council, the Clerk of the Executive Council may disclose information referred to in subsection (1) if

(a) the Executive Council for which, or in respect of which, the record has been prepared consents to the disclosure,

(b) a record is more than 15 years old, or

(c) the purpose of the information in a record is to present background information or explanations or analyses of the Executive Council or any of its committees for its consideration in making a decision and

(i) the decision has been made public,

(ii) the decision has been implemented, or

(iii) five or more years have passed since the decision was made or considered.

Information provided in confidence to a government

16(1) The head of a public body shall refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal information provided, explicitly or implicitly, in confidence by any of the following or their agencies:

(a) the Government of Canada;

(b) the government of a province or territory of Canada;

(d) the government of a foreign country or of a state, province or territory of a foreign country;

(e) an organization representing one or more governments;

(f) an international organization of state.

16(2) Subsection (1) does not apply if the government, local public body, organization or agency that provided the information consents to the disclosure or makes the information public.

Information provided by a council of the band

17(1) The head of a public body shall refuse to disclose information to an applicant that could reasonably be expected to reveal information provided, explicitly or implicitly, in confidence by a council of the band, as defined in the Indian Act (Canada).

17(2) Subsection (1) does not apply if the council of the band consents to the disclosure or makes the information public.

Information from a harassment or personnel investigation

18(1) The head of a public body shall refuse to disclose information to an applicant that would reveal

(a) the substance of records made by an investigator providing advice or recommendations of the investigator in relation to a harassment investigation or a personnel investigation, and

(b) the substance of other records relating to the harassment investigation or the personnel investigation.

18(2) Despite subsection (1), the head of a public body may disclose to the applicant who is a party to the harassment investigation or personnel investigation the information referred to in paragraph (1)(b) by allowing the applicant to examine the records, but the head may refuse to provide the applicant copies of the record.

Unreasonable invasion of third party’s privacy

19(1) The head of a public body shall refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s privacy.

19(2) A disclosure of personal information about a third party shall be deemed to be an unreasonable invasion of the third party’s privacy if

(a) the personal information is personal health information,

(b) the personal information was compiled and is identifiable as part of an investigation into a possible violation of a law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation,

(c) disclosure could reasonably be expected to reveal the identity of a third party who has provided information in confidence to a public body for the purposes of law enforcement or the administration of an Act of the Legislature or an Act of the Parliament of Canada,

(d) the personal information relates to eligibility for or receipt of income assistance, legal aid benefits, social service benefits or similar benefits, or to the determination of benefit levels,

(e) the personal information relates to the third party’s employment, occupational or educational history,

(f) the personal information was collected on a tax return or for the purpose of determining tax liability or collecting a tax,

(g) the personal information describes the third party’s source of income or financial circumstances, activities or history,

(h) the personal information consists of personal recommendations or evaluations, character references or personnel evaluations, or

(i) the personal information indicates the third party’s racial or ethnic origin, religious or political beliefs or associations or sexual orientation.

19(3) Despite subsection (2), disclosure of personal information is not an unreasonable invasion of a third party’s privacy if

(a) the third party has consented to or requested the disclosure,

(b) there are compelling circumstances affecting the mental or physical health or the safety of the applicant or another person and notice of the disclosure is mailed to the last known address of the third party,

(d) the disclosure is made under section 45,

(e) the information is about the third party’s business name, address, telephone number, facsimile number, electronic mail address or title,

(f) the information is about the third party’s job classification, salary range, benefits, employment responsibilities or travel expenses

(i) as an officer or employee of a public body,

(ii) as a Minister of the Crown,

(iii) as an elected or appointed member of the governing council or body of a local public body or as a member of the staff of such a council or body,

(g) the disclosure reveals financial or other details of a contract to supply goods or services to or on behalf of a public body,

(h) the disclosure reveals information about a discretionary benefit of a financial nature granted by a public body to the third party, including the granting of a licence or permit, or

(i) the information is about an individual who has been dead for more than 20 years.

19(4) If the third party consents to or requests disclosure under paragraph (3)(a), the head of the public body may

(a) require the consent or request to be in writing, and

(b) comply with the requirement to provide access by disclosing the information directly to the third party rather than to the applicant.

Business interests of third party

20(1) The head of a public body shall refuse to disclose to an applicant information that would reveal

(a) a trade secret of a third party,

(b) commercial, financial, labour relations, scientific or technical information supplied to the public body by a third party, explicitly or implicitly, on a confidential basis and treated consistently as confidential information by the third party, or

(c) commercial, financial, labour relations, scientific or technical information the disclosure of which could reasonably be expected to

(i) harm the competitive position of a third party,

(ii) interfere with contractual or other negotiations of a third party,

(iii) result in significant financial loss or gain to a third party,

(iv) 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, or

(v) 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.

20(2) The head of a public body shall refuse to disclose to an applicant information about a third party that was collected on a tax return or for the purpose of determining tax liability or collecting a tax.

20(3) Subsections (1) and (2) do not apply if

(a) the third party consents to the disclosure,

(b) the information is publicly available,

(d) the information discloses the final results of an environmental test conducted by or for the public body, unless the test was done for a fee paid by the third party.

20(4) Subject to section 32 and any other exception provided for in this Act, the head of a public body may disclose a record that contains information described in subsection (1) or (2) if, in the opinion of the head, the private interest of the third party in non-disclosure is clearly outweighed by the public interest in disclosure for the purposes of

(a) public health or safety or protection of the environment,

(b) improved competition, or

Division C

Discretionary exceptions to disclosure

Disclosure harmful to governmental relations

21(1) The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to harm relations between the Government of New Brunswick or a government body and any of the following or their agencies:

(a) the Government of Canada;

(b) the government of another province or territory of Canada;

(d) the government of a foreign country or of a state, province or territory of a foreign country;

(e) an organization representing one or more governments;

(f) an international organization of states.

21(2) The head of a public body shall not disclose information referred to in subsection (1) without the consent of

(a) the Attorney General, if the information is law enforcement information, or

(b) the Lieutenant-Governor in Council for any other type of information.

Disclosure harmful to relations between New Brunswick and a council of the band

22 The head of a public body may refuse to disclose information to an applicant if the information could reasonably be expected to harm relations between the Government of New Brunswick or a government body and one or more councils of the band, as defined in the Indian Act (Canada).

Local public body confidences

23(1) The head of a local public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal

(a) a draft of a resolution, by-law or other legal instrument by which the local public body acts, or

(b) the substance of deliberations of a meeting of the elected officials of the local public body or of its governing body or a committee of its elected officials or governing body, if the public is excluded from the meeting under subsection 10.2(4) of the Municipalities Act.

23(2) Subsection (1) does not apply if

(a) the draft of the resolution, by-law or other legal instrument or the subject matter of the deliberations has been considered in a meeting open to the public, or

(b) the information referred to in subsection (1) is in a record that is more than 20 years old.

Advice to a public body

24(1) The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal

(a) advice, opinions, proposals, recommendations, analyses or policy options developed by or for the public body or a Minister of the Crown,

(b) positions, plans, procedures, criteria or instructions developed for the purpose of contractual or other negotiations by or on behalf of the Government of New Brunswick or the public body, or considerations that relate to those negotiations,

(c) plans relating to the management of personnel or the administration of the public body that have not yet been implemented,

(d) the content of draft legislation or regulations and orders of Ministers of the Crown or the Lieutenant-Governor in Council, or

(e) information, including the proposed plans, policies or projects of a public body, the disclosure of which could reasonably be expected to result in disclosure of a pending policy or budgetary decision.

24(2) Subsection (1) does not apply if the information

(a) is in a record that is more than 20 years old,

(b) is an instruction or guideline issued to officers or employees of the public body,

(c) is a substantive rule or statement of policy that has been adopted by the public body for the purpose of interpreting an Act or administering a program or activity of the public body,

(d) is the result of an environmental test conducted by or for the public body,

(e) is a statement of the reasons for a decision made in the exercise of a quasi-judicial function or a discretionary power that affects the applicant,

(f) is the result of background research of a scientific or technical nature undertaken in connection with the formulation of a policy proposal,

(g) is a statistical study,

(h) is a record that is part of a quantitative or qualitative research study of public opinion, or

(i) is a final report or final audit on the performance or efficiency of the public body or of any of its programs or policies, except where the information is a report or appraisal of the performance of an individual who is or was an officer or employee of the public body.

24(3) For the purpose of paragraph (2)(f), background research of a technical nature does not include economic or financial research undertaken in connection with the formulation of a tax policy or other economic policy of the public body.

Solicitor-client privilege

25(1) The head of a public body may refuse to disclose to an applicant

(a) information that is subject to solicitor-client privilege,

(b) information prepared by or for an agent or lawyer of the Office of the Attorney General or the public body in relation to a matter involving the provision of legal advice or legal services or in relation to the investigation or prosecution of an offence, or

(c) information in a communication between an agent or lawyer of the Office of the Attorney General or the public body and any other person in relation to a matter involving the provision of legal advice or legal services or in relation to the investigation or prosecution of an offence.

25(2) The head of a public body shall refuse to disclose to the applicant information that is subject to a solicitor-client privilege of a person other than the public body.

Disclosure harmful to an individual or public safety

26 The head of a public body may refuse to disclose to an applicant information, including personal information about that person, if disclosure could reasonably be expected to

(a) threaten or harm the mental or physical health or the safety of another person,

(b) result, in the opinion of a duly qualified physician, psychologist, or other appropriate expert, in serious harm to the applicant’s mental or physical health or safety, or

Disclosure harmful to law enforcement or legal proceedings

27(1) The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to

(a) 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) harm the effectiveness of investigative techniques and procedures currently used, or likely to be used, in law enforcement,

(d) interfere with the gathering of, or reveal criminal intelligence that has a reasonable connection with, the detection, prevention or suppression of organized criminal activities or of serious and repetitive criminal activities,

(e) endanger the life or safety of a law enforcement officer or any other person,

(f) deprive a person of the right to a fair trial or impartial adjudication,

(g) disclose a record that has been confiscated from a person by a peace officer in accordance with an Act of the Legislature or an Act of the Parliament of Canada,

(h) facilitate the escape from custody of an individual who is lawfully detained,

(i) facilitate the commission of an unlawful act or interfere with the control of crime,

(j) disclose technical information relating to weapons or potential weapons,

(k) interfere with the proper custody or supervision of an individual who is lawfully detained,

(l) reveal information in a correctional record supplied, explicitly or implicitly, in confidence,

(m) expose to civil liability the author of a law enforcement record or a person who has been quoted or paraphrased in the record, or

(n) be injurious to the conduct of existing or anticipated legal proceedings.

27(2) The head of a public body shall refuse to disclose information to an applicant if the information is in a law enforcement record and the disclosure is prohibited under an Act of the Parliament of Canada.

27(3) Subsection (1) does not apply to

(a) a report, including statistical analysis, on the degree of success achieved by a law enforcement program, unless disclosure of the report could reasonably be expected to cause any harm or interference referred to in subsection (1), and

(b) a record that provides a general outline of the structure or programs of a law enforcement agency.

Disclosure harmful to economic and other interests of a public body

28(1) The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to harm the economic or financial interests or negotiating position of a public body or the Government of New Brunswick, including but not limited to, the following information:

(a) a trade secret of a public body or the Government of New Brunswick;

(b) financial, commercial, scientific, technical or other information in which a public body or the Government of New Brunswick has a proprietary interest or right of use;

(c) information the disclosure of which could reasonably be expected to result in a financial loss to a public body or to the Government of New Brunswick or prejudice the competitive position of or interfere with or prejudice contractual or other negotiations of a public body or the Government of New Brunswick;

(d) innovative scientific or technical information obtained through research by an employee of a public body or the Government of New Brunswick; and

(e) information the disclosure of which could reasonably be expected to result in an undue loss or benefit to a person, or premature disclosure of a pending policy decision, including but not limited to,

(i) a contemplated change in taxes or other source of revenue,

(ii) a contemplated change in government borrowing,

(iii) a contemplated change in the conditions of operation of a financial institution, stock exchange, or commodities exchange, or of any self-regulating organization recognized by the New Brunswick Securities Commission under an Act of the Legislature,

(iv) a contemplated sale or purchase of securities, bonds or foreign or Canadian currency.

28(2) Subsection (1) does not apply to the results of an environmental test conducted by or for a public body, unless the test was done for the purpose of developing methods of testing or for the purpose of testing products for possible purchase.

Testing procedures, tests and audits

29 The head of a public body may refuse to disclose to an applicant information relating to testing or auditing procedures or techniques or details of specific tests to be given or audits to be conducted, if disclosure could reasonably be expected to prejudice the use or results of particular tests or audit.

Confidential evaluations

30 The head of a public body may refuse to disclose to an applicant personal information that has been provided in confidence, explicitly or implicitly, for purposes of determining the applicant’s suitability, eligibility or qualifications for employment, or for the purpose of awarding a contract.

Information that is or will be available to the public

31(1) The head of a public body may refuse to disclose to an applicant information

(a) that is free of charge to the public or is available for purchase by the public, or

(b) that will be made available to the public within 90 days after the person’s request is received.

31(2) When the head of a public body has refused to disclose information under paragraph (1)(b), the head

(a) shall notify the applicant when the information becomes available, and

(b) shall, if the information is not available to the public within 90 days after the person’s request is received, reconsider the request as if it were a new request received on the sixtieth day of the 90 day period and shall not be entitled to refuse access to the information under paragraph (1)(b).

Division D

Third party intervention

Notice to third party

32(1) When the head of a public body is considering giving access to a record the disclosure of which might result in an unreasonable invasion of a third party’s privacy under section 19 or affect a third party’s interests described in subsection 20(1) or (2), the head shall, where practicable and as soon as practicable, give written notice to the third party in accordance with section 33.

32(2) A third party is deemed to have waived the requirement for notice in subsection (1) in a case where the third party has consented to or requested the disclosure.

Content of notice

33(1) A notice referred to in subsection 32(1) shall

(a) state that a request has been made for access to a record that may contain information the disclosure of which might invade the privacy or affect the interests of the third party,

(b) include a copy of the record or part of it containing the information in question or describe the contents of the record, and

(c) state that, within 21 days after the notice is given, the third party may, in writing, consent to the disclosure or make representations to the head of the public body explaining why the information should not be disclosed.

33(2) When notice is given under subsection 32(1), the head of the public body shall also give the applicant a notice stating that

(a) the record requested by the applicant may contain information the disclosure of which might invade the privacy or affect the interests of a third party,

(b) the third party is being given an opportunity to make representations concerning disclosure, and

(c) a decision respecting disclosure will be made within 30 days after the day notice is given under subsection 32(1), unless the time limit for responding is extended under subsection 10(3).

33(3) Representations by a third party under this section shall be made in writing unless the head of the public body permits them to be made orally.

Decision within 30 days

34(1) Within 30 days after notice is given under subsection 32(1), the head of the public body shall decide whether or not to give access to the record or to part of the record, but no decision may be made before the earlier of

(a) twenty-one days after the notice is given, and

(b) the day a response is received from the third party.

34(2) On reaching a decision under subsection (1), the head of the public body shall give written notice of the decision, including reasons for the decision, to the applicant and the third party.

34(3) Subsection 10(3) applies with the necessary modifications in relation to the time limit referred to in subsection (1).

34(4) If the head of the public body decides to give access to the record or part of the record, the notice under subsection (2) shall state that the applicant will be given access unless the third party files a complaint with the Commissioner or refers the matter to a judge of The Court of Queen’s Bench of New Brunswick for review under Part 5 within 21 days after the notice is given.

34(5) If the head of the public body decides not to give access to the record or part of the record, the notice under subsection (2) shall state that the applicant may file a complaint with the Commissioner or may refer the matter to a judge of The Court of Queen’s Bench of New Brunswick for review under Part 5 within 60 days after the notice is given.

PART 3

PROTECTION OF PRIVACY

Division A

Collection, correction and retention of personal information

Purpose of collection of personal information

35(1) No personal information may be collected by or for a public body unless

(a) the collection of the information is authorized or required by or under an Act of the Legislature or an Act of the Parliament of Canada,

(b) the information relates directly to and is necessary for an existing program or activity of the public body, or

35(2) A public body shall collect only as much personal information about an individual as is reasonably necessary to accomplish the purpose for which it is collected.

Manner of collection

36(1) Personal information shall be collected by or for a public body directly from the individual the information is about unless

(a) another method of collection is authorized by that individual or by an Act of the Legislature or an Act of the Parliament of Canada,

(b) collection of the information directly from the individual could reasonably be expected to cause harm to the individual or to another person,

(c) collection of the information is in the interest of the individual and time or circumstances do not permit collection directly from the individual,

(d) collection of the information directly from the individual could reasonably be expected to result in inaccurate information being collected,

(e) the information may be disclosed to the public body under Division B of this Part,

(f) the information is collected for inclusion in a public registry,

(g) the information is collected for law enforcement purposes,

(h) the information is collected for the purpose of existing or anticipated legal proceedings to which the Government of New Brunswick or the public body is a party,

(i) the information is collected for use in providing legal advice or legal services to the Government of New Brunswick or the public body,

(j) the information concerns

(i) the history, release or supervision of an individual in the custody of or under the control or supervision of a correctional facility, or

(ii) the security of a correctional facility,

(k) the information is collected for the purpose of enforcing a support order under the Support Enforcement Act,

(l) the information is collected for the purpose of informing the Public Trustee about clients or potential clients,

(m) the information is collected for the purpose of

(i) determining the eligibility of an individual to participate in a program of or receive a benefit or service from the Government of New Brunswick or the public body and is collected in the course of processing an application made by or on behalf of the individual the information is about, or

(ii) verifying the eligibility of an individual who is participating in a program of or receiving a benefit or service from the Government of New Brunswick or the public body,

(n) the information is collected for the purpose of

(i) determining the amount of or collecting a fine, debt, tax or payment owing to the Government of New Brunswick or the public body, or an assignee of either of them, or

(ii) making a payment,

(o) the information is collected for the purpose of managing or administering personnel of the Government of New Brunswick or the public body,

(p) the information is collected for the purpose of auditing, monitoring or evaluating the activities of the Government of New Brunswick or the public body,

(q) the information is collected for the purpose of determining suitability for an honour or award, including an honourary degree, scholarship, prize or bursary, or

(r) the information is collected for some other substantial reason in the public interest, whether or not it is similar in nature to paragraphs (a) to (q).

36(2) A public body that collects personal information directly from the individual the information is about shall inform the individual of

(a) the purpose for which the information is collected,

(b) the legal authority for the collection, and

(c) the title, business address and telephone number of an officer or employee of the public body who can answer the individual’s questions about the collection.

36(3) Subsection (2) does not apply to a public body if the public body has recently provided the individual with the information referred to in that subsection about the collection of the same or similar personal information for the same or a related purpose.

Accuracy of personal information

37 If personal information about an individual will be used by a public body to make a decision that directly affects the individual, the public body shall take reasonable steps to ensure that the information is accurate and complete.

Right to request correction of personal information

38(1) An applicant who has been given access to a record containing his or her personal information under Part 2 and who believes there is an error or omission in the information may request the head of the public body that has the information in its custody or under its control to correct the information.

38(2) A request under subsection (1) shall be in writing.

38(3) Within 30 days after receiving a request under subsection (1), the head of the public body shall

(a) make the requested correction and notify the applicant of the correction, or

(b) notify the applicant of the head’s refusal to correct the record and the reason for the refusal, that the request for correction has been added to the record, and that the individual has a right to file a complaint with the Commissioner about the refusal under Part 5.

38(4) Subsection 10(3) applies with the necessary modifications in relation to the time limit referred to in subsection (3).

38(5) On correcting a record or adding a request for correction to a record under this section, the head of the public body shall, where practicable, notify any other public body or third party to whom the information has been disclosed during the year before the correction was requested that the correction has been made or a request for correction has been added.

38(6) On being notified under subsection (5) of a correction or request for correction, a public body shall make the correction or add the request for correction to any record of that information in its custody or under its control.

Retention of personal information

39(1) A public body that uses personal information about an individual to make a decision that directly affects the individual shall, subject to any other Act of the Legislature, establish and comply with a written policy concerning the retention of the personal information.

39(2) A written policy referred to in subsection (1) shall

(a) require that personal information be retained for a reasonable period of time so that the individual to whom the information relates has a reasonable opportunity to obtain access to it, and

(b) comply with any additional requirements set out in the regulations.

Protection of personal information

40 The head of a public body shall, in accordance with any requirements set out in the regulations, protect personal information by making reasonable security arrangements against such risks as unauthorized access, use, disclosure or destruction.

Division B

Restrictions on use and disclosure of personal information

General duty of public bodies

41(1) A public body shall not use or disclose personal information except as authorized under this Division.

41(2) Every use and disclosure by a public body of personal information must be limited to the minimum amount of information necessary to accomplish the purpose for which it is used or disclosed.

41(3) A public body shall limit the use and disclosure of personal information in its custody or under its control to those of its employees or agents who need to know the information to carry out the purpose for which the information was collected or received or to carry out a purpose authorized under paragraph 42(a) or (c).

Use of personal information

42 A public body may use personal information only

(a) for the purpose for which the information was collected or compiled under subsection 35(1) or for a use consistent with that purpose,

(b) if the individual the information is about has consented to the use, or

(c) for a purpose for which that information may be disclosed to the public body under section 44, 45 or 46 or for a use approved under section 45.

Consistent purpose

43 For the purpose of paragraph 42(a), a use or disclosure of personal information is consistent with the purpose for which the information was collected or compiled if the use or disclosure

(a) has a reasonable and direct connection to that purpose, or

(b) is necessary for performing the statutory duties of, or for operating an authorized program or carrying out an activity of, the public body that uses or discloses the information.

Disclosure of personal information

44(1) A public body may disclose personal information only

(a) if the individual the information is about has consented to the disclosure,

(b) for the purpose of complying with an Act of the Legislature or an Act of the Parliament of Canada, or with a treaty, arrangement or agreement entered into between the two governments under an Act of the Legislature or an Act of the Parliament of Canada,

(c) in accordance with an Act of the Legislature or an Act of the Parliament of Canada that authorizes or requires the disclosure,

(d) for law enforcement purposes,

(e) if the public body is a law enforcement agency and the information is disclosed to

(i) another law enforcement agency in Canada, or

(ii) a law enforcement agency in a foreign country under an arrangement, written agreement, treaty or legislative authority,

(f) for the purpose of supervising an individual in the custody of or under the control or supervision of a correctional facility,

(g) where disclosure is necessary for the security of a correctional facility,

(h) for the purpose of obtaining or enforcing a support order under the Support Enforcement Act,

(I) where necessary to protect the mental or physical health or the safety of any individual or group of individuals,

(j) for the purpose of

(i) contacting a relative or friend of an individual who is injured, incapacitated or ill,

(ii) assisting in identifying a deceased individual, or

(iii) informing the representative or a relative of a deceased individual, or any other person it is reasonable to inform in the circumstances, of the individual’s death,

(k) to a relative of a deceased individual if the head of the public body reasonably believes that disclosure is not an unreasonable invasion of the deceased’s privacy,

(l) 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 or with a rule of court that relates to the production of information,

(m) for use in providing legal advice or legal services to the Government of New Brunswick or the public body,

(n) for use in existing or anticipated legal proceedings to which the Government of New Brunswick or the public body is a party,

(o) for the purpose of enforcing a legal right that the Government of New Brunswick or the public body has against any person,

(p) for the purpose of determining or verifying an individual’s suitability or eligibility for a program, service or benefit,

(q) for the purpose of

(i) determining the amount of or collecting a fine, debt, tax or payment owing by an individual to the Government of New Brunswick, to the federal government or to the public body, or to an assignee of any of them, or

(ii) making a payment,

(r) for the purpose of managing or administering personnel of the Government of New Brunswick or the public body,

(s) by transfer to the Provincial Archives or to the archives of the public body for records management or archival purposes,

(t) to the Government of Canada in order to facilitate the monitoring, evaluation or auditing of shared cost programs or services,

(u) to the Auditor General for audit purposes,

(v) to an auditor for the purpose of an audit where the audit is required or authorized by an Act of the Legislature,

(w) to an expert for the purposes of paragraph 26(b), or

(x) subject to subsection (2), to a person providing information technology services to or for the public body.

44(2) When a public body intends to disclose personal information to a provider of information technology services or to any other provider of services that is not an employee of the public body, the public body shall enter into a written agreement with the provider for the protection of the personal information against such risks as unauthorized access, use, disclosure or destruction.

Assessment required for other uses and disclosures

45(1) This section applies only to uses and disclosures not otherwise authorized under this Division.

45(2) A public body may only use or disclose personal information with the approval of the head of the public body if the public body

(a) proposes to use or disclose personal information in order to link information databases or match personal information in one information database with information in another,

(b) receives a request for disclosure of personal information for the purposes of legitimate research in the interest of science, learning or public policy, or

(c) receives a request for disclosure on a volume or bulk basis of personal information in a public registry or another collection of personal information.

45(3) If a proposal or request is made under subsection (2) by or to a department or a government body, the head shall refer it to the review committee for its advice.

45(4) If a proposal or request is made under subsection (2) by or to a local public body, the head may refer it to the review committee for its advice.

45(5) The review committee shall assess a proposal or request referred to it under this section and provide advice to the head of the public body about the matters referred to in subsection (6).

45(6) The head of the public body may approve the proposal or request made under subsection (2) only if

(a) any advice from the review committee under subsection (3) has been received and considered,

(b) the head is satisfied that

(i) the purpose of the proposal or request cannot reasonably be accomplished unless the personal information is provided in a form that identifies individuals,

(ii) it is unreasonable or impractical to obtain consent from the individuals the personal information is about, and

(iii) the use or disclosure is not likely to harm the individuals the personal information is about and the benefits to be derived from the use or disclosure are clearly in the public interest,

(i) the use of the personal information,

(ii) the protection of the personal information, including security and confidentiality,

(iii) the removal or destruction of individual identifiers at the earliest reasonable time, where appropriate,

(iv) any subsequent use or disclosure of the personal information in a form that identifies individuals without the express written authorization of the public body, and

(d) the recipient of the personal information has entered into a written agreement to comply with the approved conditions.

Disclosure of records more than 100 years old

46 Despite any provision of this Act, the head of a public body may disclose personal information in a record that is more than 100 years old.

PART 4

OFFICE OF THE ACCESS TO INFORMATION AND PRIVACY COMMISSIONER

Access to Information and Privacy Commissioner

47(1) There shall be an Office of the Access to Information and Privacy Commissioner, as well as an Access to Information and Privacy Commissioner.

47(2) The Commissioner shall be appointed by the Lieutenant-Governor in Council on the recommendation of the Legislative Assembly.

47(3) The Commissioner shall hold office for a term of not less than 5 years and not more than 10 years and may be reappointed for a further term or terms.

Salary and benefits

48(1) The Lieutenant-Governor in Council shall determine the salary to be paid to and the benefits to be received by the Commissioner.

48(2) The Public Service Superannuation Act applies to the Commissioner.

48(3) The Commissioner may participate in and receive benefits under any health, life, disability or other insurance plan available to employees within the public service, in accordance with the terms upon which the right to participate and receive benefits may from time to time be extended to the Commissioner.

Eligibility for appointment

49 The Commissioner shall not be a member of the Legislative Assembly and shall not hold any other office of trust or profit, other than his or her office as Commissioner, without the prior approval by the Legislative Assembly.

Oath of Commissioner

50(1) Before entering upon the exercise of the responsibilities of his or her office, the Commissioner shall take an oath to faithfully and impartially perform the duties of the office and not to divulge any information received under this Act except for the purpose of giving effect to this Act.

50(2) The Speaker or the Clerk of the Legislative Assembly shall administer the oath referred to in subsection (1).

Resignation of Commissioner

51(1) The Commissioner may resign from office by notice in writing addressed to the Speaker of the Legislative Assembly or, if there is no Speaker or the Speaker is absent from the Province, to the Clerk of the Legislative Assembly.

51(2) Within 5 days after receiving the Commissioner’s resignation, the Speaker or the Clerk of the Legislative Assembly, as the case may be, shall forward a copy of the resignation to the Clerk of the Executive Council.

Removal or suspension of Commissioner

52(1) The Commissioner shall hold office during good behaviour and may only be removed by the Lieutenant-Governor in Council for incapacity, neglect of duty or misconduct upon an address in which 2/3 of the members of the Legislative Assembly concur.

52(2) The Lieutenant-Governor in Council, upon an address in which a majority of the members of the Legislative Assembly voting concur, may suspend the Commissioner, with or without pay, pending an investigation which may lead to removal under subsection (1).

52(3) If the Legislature is not in session, a judge of The Court of Queen’s Bench of New Brunswick may, upon an application by the Lieutenant-Governor in Council, suspend the Commissioner, with or without pay, for incapacity, neglect of duty or misconduct.

52(4) If the Lieutenant-Governor in Council makes an application under subsection (3), the practice and procedure of The Court of Queen’s Bench of New Brunswick respecting applications applies.

52(5) If a judge of The Court of Queen’s Bench of New Brunswick suspends the Commissioner under subsection (3), the judge shall do the following:

(a) appoint an acting Commissioner to hold office until the suspension has been dealt with by the Legislative Assembly; and

(b) table a report on the suspension with the Legislative Assembly within 10 days after the commencement of the next session of the Legislature.

52(6) No suspension under subsection (3) shall continue beyond the end of the next session of the Legislature.

52(7) Any disclosure by the Commissioner of information which the Commissioner is required to keep confidential under this Act shall be grounds for removal from office.

Acting Commissioner

53(1) If the Commissioner has been suspended under subsection 52(2), the Lieutenant-Governor in Council may appoint an acting Commissioner to hold office until the suspension has elapsed.

53(2) An acting Commissioner, while in office, has the powers and duties of the Commissioner and shall be paid such salary or other remuneration and expenses as the Lieutenant-Governor in Council may fix.

Filling vacancies

54(1) If the office of Commissioner is vacant, the Lieutenant-Governor in Council may do one of the following:

(a) appoint a Commissioner in accordance with section 47;

(b) if the office of Commissioner becomes vacant when the Legislature is not in session, appoint a Commissioner without a recommendation from the Legislative Assembly;

54(2) An appointment under paragraph (1)(b) shall be confirmed by the Legislative Assembly within 30 days after the commencement of the next session of the Legislature and, if the appointment is not so confirmed, the appointment shall terminate and the office of Commissioner shall be vacant.

54(3) If an appointment under paragraph (1)(b) is confirmed by the Legislative Assembly, the appointment shall be deemed to be an appointment under section 47.

Staff of the Office of the Access to Information and Privacy Commissioner

55(1) The Commissioner may appoint such assistants and employees as the Commissioner considers necessary for the efficient carrying out of the Commissioner’s powers and duties under this Act.

55(2) Before performing any duties or exercising powers under this Act, a person appointed under subsection (1) shall take an oath, administered by the Commissioner, that the person will not divulge any information that is received under this Act, except for the purpose of giving effect to and in compliance with this Act.

55(3) The Public Service Superannuation Act applies to all persons employed in the Office of the Access to Information and Privacy Commissioner.

55(4) All persons employed in the Office of the Access to Information and Privacy Commissioner may participate in and receive benefits under any health, life, disability or other insurance plan available to employees within the public service, in accordance with the terms upon which the right to participate and receive benefits may from time to time be extended to the persons employed in the Office of the Access to Information and Privacy Commissioner.

Delegation of powers

56(1) The Commissioner may delegate, in writing, to any person any power of the Commissioner under this Act, except the power of delegation and the power to make a report under this Act.

56(2) Despite subsection (1), if the Commissioner is in a conflict of interest with respect to a matter referred to the Commissioner, the Commissioner may delegate in writing to any person any power with respect to that matter, including the power to make a report.

56(3) A person purporting to exercise a power of the Commissioner by virtue of a delegation under subsection (1) or (2) shall produce evidence of his or her authority to exercise that power when required to do so.

56(4) The Lieutenant-Governor in Council may prescribe by regulation circumstances that give rise to a conflict of interest for the purposes of subsection (2).

Powers and duties

57(1) In addition to the powers conferred or duties imposed under Part 5, the Commissioner may

(a) make recommendations with regard to this Act and the regulations,

(b) inform the public about this Act,

(d) comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies,

(e) comment on the implications for protection of privacy of

(i) using or disclosing personal information for record linkage, or

(ii) using information technology in the collection, storage, use or transfer of personal information,

(f) bring to the attention of the head of a public body any failure to fulfil the duty to assist an applicant,

(g) conduct audits, on the Commissioner’s own initiative or on request and in accordance with the regulations, if any, in order to evaluate the level of conformity with Part 3, or

(h) make recommendations, on the Commissioner’s own initiative or on request, to the head of a public body or the responsible Minister of the Crown about the administration of this Act.

57(2) The Commissioner shall review any matter referred to the Commissioner by the Executive Council.

Powers under the Inquiries Act

58 Where the Commissioner conducts an investigation under this Act, the Commissioner has all the powers, privileges and immunities conferred on a commissioner under the Inquiries Act.

Right of entry

59 Despite any other Act of the Legislature or any privilege of the law of evidence, in exercising powers or performing duties under this Act, the Commissioner has the right

(a) to enter any office of a public body and, subject to section 67, examine and make copies of any record in the custody of the public body, and

(b) to converse in private with any officer or employee of a public body.

Commissioner’s report

60 The Commissioner shall report annually to the Legislative Assembly on the exercise of his or her functions under this Act.

Protection from legal action

61(1) No proceedings lie against the Commissioner or any person holding any office or appointment under the Commissioner for anything he or she may do, report or say in the course of the performance of a duty or the intended performance of a duty under this Act or the exercise of a power or intended exercise of a power under this Act, unless it is shown that he or she acted in bad faith.

61(2) The Commissioner or any person holding any office or appointment under the Commissioner shall not be called to give evidence in any court or in any proceedings of a judicial nature in respect of anything coming to his or her knowledge in the performance of a duty or the exercise of a power under this Act whether or not that duty or power was within his or her jurisdiction.

PART 5

REVIEW

Referral to Court of Queen’s Bench

62(1) The following persons may refer, according to the regulations, a matter to a judge of The Court of Queen’s Bench of New Brunswick for review:

(a) an applicant who requested access to a record under Part 2, in relation to a decision, an act or an omission of a head of a public body in respect of the request, or

(b) a third party who is given notice under section 34 of a decision of a head of a public body to give access to a record and the third party is not satisfied with the decision.

62(2) If a person refers the matter to a judge of The Court of Queen’s Bench of New Brunswick under subsection (1), the person may not file a complaint with the Commissioner under section 64 and the Commissioner may not act in the matter.

62(3) A matter referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection (1) shall be filed

(a) in the case of an applicant, within 30 days after the date the decision of the head of the public body was made, and

(b) in the case of a third party, within 21 days after the date the notice referred to in section 34 is given.

Decision of The Court of Queen’s Bench

63(1) If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 62(1), the judge shall hold a hearing and,

(a) where the matter is referred by an applicant,

(i) if the head of a public body denied a request for information in whole or in part, may order the head of the public body to grant the request in whole or in part, and

(ii) if the head of public body failed to reply to a request for information, may order the head of the public body to reply to the request or deny the request,

(b) where the matter is referred by a third party who is given notice under section 34, may order the head of the public body to disclose in whole or in part the record or to refuse the request, or

63(2) A copy of the decision of the judge of The Court of Queen’s Bench of New Brunswick shall be sent to the person who referred the matter for review and to the head of the public body.

63(3) No appeal lies from the decision of the judge of The Court of Queen’s Bench of New Brunswick under subsection (1).

Complaint filed with the Commissioner

64(1) The following persons may file, according to the regulations, a complaint with the Commissioner:

(a) an applicant,

(i) if the applicant requested access to a record under Part 2 and is not satisfied with a decision, an act or an omission of a head of a public body in relation to the request,

(ii) if the applicant is not satisfied with a decision of a head of a public body under subsection 10(3), or

(iii) if the applicant is not satisfied with the decision of the head of a public body under subsection 11(1), or

(b) a third party, if the third party is given notice under section 34 of a decision of a head of a public body to give access to a record and the third party is not satisfied with the decision.

64(2) Subject to section 72, if a person has filed a complaint with the Commissioner under subsection (1), the person may not refer the matter under subsection 62(1) to a judge of The Court of Queen’s Bench of New Brunswick for review.

64(3) A complaint to the Commissioner under subsection (1) shall be in writing and filed

(a) in the case of an applicant, within 60 days after the date the applicant was notified of the decision of the head of the public body or the date of the act or the omission of the head of a public body, as the case may be, or

(b) in the case of a third party, within 21 days after the date the notice referred to in section 34 is given.

64(4) The Commissioner may extend the period of time referred to in subsection (3).

64(5) If the head of a public body fails to respond in time to a request for access to a record, the failure is to be treated as a decision to refuse access, in which case the complaint shall be filed with the Commissioner within 120 days following the request for information.

64(6) As soon as practicable after receiving a complaint, the Commissioner shall

(a) in the case of a complaint by an applicant, notify the head of the public body and provide the head with a copy of the complaint, or

(b) in the case of a third party, notify the head of the public body and provide the head, as well as the applicant, with a copy of the complaint.

Investigation

65(1) Subject to subsection 62(2), on receiving a complaint the Commissioner shall investigate the complaint or shall take steps to resolve the complaint informally under subsection (2).

65(2) The Commissioner may take any steps the Commissioner considers appropriate to resolve a complaint informally to the satisfaction of the parties and in a manner consistent with the purposes of this Act.

65(3) If the Commissioner cannot resolve a complaint within 45 days of the commencement of the informal resolution process referred to in subsection (2), the Commissioner shall review the decision of the head of the public body and shall prepare the report referred to in section 70.

Refusal to investigate complaint

66(1) The Commissioner may, in his or her discretion, refuse to or cease to investigate a matter in any of the following circumstances:

(a) the complaint is trivial, frivolous, vexatious or not made in good faith;

(b) having regard to all the circumstances of the case, further investigation is unnecessary;

(d) the person who made the complaint does not have a sufficient personal interest in the matter.

66(2) The Commissioner shall inform the person who made the complaint and the head of the public body, in writing, of his or her decision not to investigate the decision of the head of the public body or to cease an investigation in relation to a matter and the reasons for the Commissioner’s decision.

Production of records

67(1) With the exception of Executive Council confidences and any document that contains information that is subject to solicitor-client privilege, the Commissioner may require any record in the custody or under the control of a public body that the Commissioner considers relevant to an investigation to be produced to the Commissioner and may examine any information in a record, including personal information.

67(2) The Commissioner may review the records referred to in subsection (1) in private without the presence of any person.

67(3) A public body shall produce to the Commissioner within 14 days any record or a copy of a record required under this section, despite any other Act of the Legislature or any privilege of the law of evidence.

67(4) If a public body is required to produce a record under this section and it is not practicable to make a copy of it, the head of the public body may require the Commissioner to examine the original at its site.

Representations to the Commissioner

68(1) During an investigation, the Commissioner shall give the following persons an opportunity to make representations to the Commissioner:

(a) if the person who made the complaint is the applicant, to the applicant and to the head of the public body concerned;

(b) if the person who made the complaint is a third party who is given notice of a decision under section 34, to the third party, the applicant and the head of the public body concerned; and

68(2) Despite the opportunity to make representations, the persons referred to in subsection (1) shall not be entitled to be present during an investigation or to have access to or to comment on representations made to the Commissioner by another person.

68(3) The Commissioner may decide whether representations are to be made orally or in writing.

68(4) Representations may be made to the Commissioner through counsel or an agent.

Time limit for investigation

69 An investigation shall be completed and a report made under section 70 within 90 days after a complaint is filed, unless the Commissioner

(a) notifies the person who filed the complaint, the head of the public body and any other person who has made representations to the Commissioner that the Commissioner is extending that period, and

(b) gives an anticipated date for providing the report.

Report

70(1) On completing an investigation of a complaint, the Commissioner shall prepare a report containing the Commissioner’s findings about the complaint and

(a) where the complaint is filed by an applicant,

(i) recommend to the head of a public body concerned to grant in whole or in part the request for information, or

(ii) if the head of public body failed to reply to the request for information, recommend to the head of the public body to reply to the request or deny the request, or

(b) where the complaint is filed by a third party, recommend to the head of a public body concerned to disclose in whole or in part the document or to deny access to the document.

70(2) The Commissioner shall give a copy of the report to the person who filed the complaint and to the head of the public body concerned and, if the person who filed the complaint is the applicant, to the third party who was given a notice under section 34.

Complying with the recommendation

71(1) The head of the public body, upon reviewing the recommendation of the Commissioner, shall make his or her decision and shall notify, in writing, the applicant or the third party, as the case may be, of the decision and shall forward to the Commissioner a copy of the decision.

71(2) If the head of the public body accepts the recommendations in the Commissioner’s report, the head of the public body shall, within 15 days after receiving the report, comply with the recommendations of the Commissioner or make such other decision that the head of the public body considers appropriate.

71(3) If the head of a public body fails to notify the applicant or the third party under subsection (1) within 15 days after making his or her decision, the failure shall to be treated as a decision not to accept the recommendation of the Commissioner.

Right to appeal

72(1) If the head of the public body decides not to accept the recommendations of the Commissioner, the person who made the complaint may appeal the matter, in accordance with the regulations, to a judge of The Court of Queen’s Bench of New Brunswick.

72(2) The head of the public body shall notify the person who made the complaint of the head of the public body’s decision not to accept the recommendations of the Commissioner, the person’s right to appeal the decision and the time limit for the appeal.

72(3) Section 63 applies with the necessary modifications in relation to an appeal under subsection (1).

Costs

73(1) Where a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 62(1) or appealed to a judge of The Court of Queen’s Bench of New Brunswick under section 72, the judge shall award costs in favour of the person who referred or appealed the matter

(a) where the person is successful, and

(b) where the person is not successful, if the judge considers it to be in the public interest.

73(2) Despite subsection (1), a judge of The Court of Queen’s Bench of New Brunswick may award costs in favour of the public body if the judge considers that the matter for review or appeal is frivolous or vexatious or amounts to an abuse of the right to access.

PART 6

GENERAL PROVISIONS

Privacy Assessment Review Committee

74 The Minister shall establish, in accordance with the regulations, a Privacy Assessment Review Committee for the purposes of section 45.

Giving notice under this Act

75 When this Act requires a notice or document to be given to a person, it is to be given

(a) by sending it to that person by prepaid mail to the person’s last known address,

(b) by personal service,

(d) by electronic transmission or telephone transmission of a facsimile of the notice or document, or

(e) by any other means prescribed by the regulations.

Exercising rights of another person

76 Any right or power conferred on an individual by this Act may be exercised

(a) by any person, other than the Commissioner, with written authorization from the individual to act on the individual’s behalf,

(b) by a committee or person appointed for the individual under the Infirm Persons Act, if the exercise of the right or power relates to the powers and duties of the committee or the person,

(c) by an attorney acting under a power of attorney granted by the individual, if the exercise of the right or power relates to the powers and duties conferred by the power of attorney,

(d) by the parent or guardian of a minor when, in the opinion of the head of the public body concerned, the exercise of the right or power by the parent or guardian would not constitute an unreasonable invasion of the minor’s privacy, or

(e) if the individual is deceased, by the individual’s personal representative if the exercise of the right or power relates to the administration of the individual’s estate.

Fees

77(1) The head of a public body may require an applicant to pay to the public body fees for making an application and for search, preparation, copying and delivery services as provided for in the regulations.

77(2) If an applicant is required to pay fees under subsection (1), other than a fee for making an application, the head of a public body shall give the applicant an estimates of the total fees payable before providing the service.

77(3) The public body shall not be bound to give an estimate to the applicant under subsection (2) if the fees, other than a fee for making an application, are not greater than the amount prescribed by regulation.

77(4) The applicant has up to 30 days from the day the estimate is given to indicate if it is accepted or to modify the request in order to change the amount of the fees, after which the application is considered abandoned.

77(5) When an estimate is given to an applicant under this section, the time within which the head is required to respond under subsection 10(1) is suspended until the applicant notifies the head that the applicant wishes to proceed with the application.

77(6) The head of a public body may waive the payment of all or part of a fee in accordance with the regulations, if any.

77(7) The search, preparation, copying and delivery fees referred to in subsection (1) must not exceed the actual costs of the services.

Immunity

78 No action lies and no proceeding may be brought against the Government of New Brunswick, a public body, the head of a public body, an elected official of a local public body or any person acting for or under the direction of the head of a public body for damages resulting from

(a) the disclosure of or failure to disclose, in good faith, all or part of a record or information under this Act or any consequences of that disclosure or failure to disclose, or

(b) the failure to give a notice required by this Act if reasonable care is taken to give the required notice.

Offences

79(1) No person shall

(a) collect, use or disclose personal information in wilful contravention of this Act,

(b) attempt to gain or gain access to personal information in wilful contravention of this Act,

(c) knowingly make a false statement to the Commissioner or another person in the performance of the duties or the exercise of the powers of the Commissioner or the other person under this Act or knowingly mislead or attempt to mislead the Commissioner or the other person,

(d) obstruct the Commissioner or another person in performing duties or exercising powers under this Act,

(e) destroy a record or erase information in a record that is subject to this Act, or direct another person to do so, with the intent to evade a request for access to the record,

(f) alter, falsify, conceal or destroy any record or part of any record, or direct another person to do so, with an intent to evade a request for access to the record, or

(g) wilfully fail to comply with an investigation of the Commissioner.

79(2) Any person who violates or fails to comply with paragraph (1)(a), (b), (c), (d), (e), (f) or (g) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.

79(3) No prosecution for an offence under this Act shall be commenced after 2 years from the date of the discovery of the alleged offence.

Defence

80 No person is guilty of an offence under any other Act of the Legislature by reason of complying with a request or requirement to produce a record or provide information or evidence to the Commissioner, or a person acting for or under the direction of the Commissioner, under this Act.

Burden of proof

81(1) In any proceeding under this Act, the burden is on the head of the public body to prove that the applicant has no right of access to the record or part of the record.

81(2) Despite subsection (1), if the proceeding under this Act concerns a decision to disclose or to refuse to disclose, in whole or in part, a record containing personal information about a third party, the burden is on the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s privacy.

81(3) Despite subsection (1), if the proceeding under this Act concerns a decision to disclose or to refuse to disclose, in whole or in part, a record containing information that is not personal information about 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.

Regulations

82 The Lieutenant-Governor in Council may make regulations

(a) designating public registries for the purpose of the definition “public registry” in section 1;

(b) prescribing information to be included in a request for access to a record under Part 2;

(d) respecting procedures to be followed in making, transferring, and responding to requests under Part 2;

(e) for the purpose of paragraph 39(2)(b), governing policies of public bodies concerning retention periods for personal information and respecting the destruction of personal information;

(f) respecting the giving of consent by individuals under this Act;

(g) respecting written agreements for the purposes of sections 44 and 45;

(h) respecting standards for and requiring administrative, technical and physical safeguards to ensure the security and confidentiality of records and personal information in the custody or under the control of public bodies;

(i) prescribing the circumstances that give rise to a conflict of interest under section 56;

(j) respecting audits for the purposes of paragraph 57 (1)(g);

(k) respecting the appointment of members of the review committee under section 74 and governing the duties and powers of the review committee and all related matters;

(l) prescribing the form and manner of applicants, referrals or appeals under this Act;

(m) prescribing the method of giving notices or documents under section 75;

(n) respecting fees to be paid under this Act and providing for circumstances in which fees may be waived in whole or in part;

(o) prescribing an amount for the purposes of subsection 77(3);

(p) respecting the kind of information that public bodies must provide to the Minister of the Crown responsible;

(q) respecting forms for the purposes of this Act;

(r) defining any word or expression used in this Act but not defined in this Act;

(s) prescribing the manner in which a notice or a record shall be given to a person under this Act;

(t) respecting all other matters necessary to carry out the provisions of this Act.

Amendments to Schedule A

83 The Lieutenant-Governor in Council may add a body or head to Schedule A but may not amend or remove a body or a head from Schedule A.

PART 7

CONSEQUENTIAL AMENDMENTS, REVIEW, REPEAL AND COMMENCEMENT

Amendment to the Archives Act

84 Section 1 of the Archives Act, chapter A-11.1 of the Acts of New Brunswick, 1977, is amended in the definition “department” by repealing paragraph (a.1) and substituting the following:

(a.1) a public body as defined in the Access to Information and Protection of Privacy Act, excluding the following public bodies:

(i) The University of New Brunswick;

(ii) Université de Moncton;

(iii) St. Thomas University;

(iv) Mount Allison University;

Amendment to the Clean Air Act

85 Subsection 12(2) of the Clean Air Act, chapter C-5.2 of the Acts of New Brunswick, 1997, is amended by striking out “to which there is no right under the Right to Information Act” and substituting “that is, in the opinion of the Minister, confidential”.

Amendment to the Crown Lands and Forest Act

86 Subsection 55.1(2) of the Crown Lands and Forests Act, chapter C-38.1 of the Acts of New Brunswick, 1980, is amended by striking out “under the Right to Information Act”.

Amendment to the Education Act

87 Section 55 of the Education Act, chapter E-1.12 of the Acts of New Brunswick, 1997, is amended by striking out “Notwithstanding the Right to Information Act, the Minister,” and substituting “The Minister,”.

Amendment to the Historic Sites Protection Act

88 Section 7.2 of the Historic Sites Protection Act, chapter H-6 of the Revised Statues, 1973, is repealed and the following is substituted:

No disclosure

7.2 The Minister may refuse to disclose information about the location of a site that, in the opinion of the Minister, is or may be of historical or anthropological significance.

Amendment to the Pension Benefits Act

89 Subsection 28(1) of the Pension Benefits Act, chapter P-5.1 of the Acts of New Brunswick, 1987, is amended by striking out “under the Right to Information Act”.

Amendment to the Provincial Court Act

90 Subsection 6.12(3) of the Provincial Court Act, chapter P-21 of the Revised Statutes, 1973, is repealed and the following is substituted:

Report on disposition of matter

6.12(3) A report received by the Minister under subsection (2) is not subject to disclosure.

Amendment to the Statistics Act

91 Subsection 15(1) of the Statistics Act, chapter S-12.3 of the Acts of New Brunswick, 1984, is amended by striking out “or under the Right to Information Act”.

Review of this Act

92 Within 8 years after the coming into force of this Act, the Minister shall undertake a comprehensive review of the operation of this Act and shall, within one year after the review is undertaken or within such further time as the Legislative Assembly may allow, submit a report on the review to the Legislative Assembly.

Repeal of the Protection of Personal Information Act

93 The Protection of Personal Information Act, chapter P-19.1 of the Acts of New Brunswick, 1998, is repealed.

Repeal of the Right to Information Act

94 The Right to Information Act, chapter R-10.3 of the Acts of New Brunswick, 1978, is repealed.

Commencement

95 This Act or any provision of this Act comes into force on a day or days to be fixed by proclamation.

SCHEDULE A

Government bodies

1 The following bodies are designated as government bodies and the following persons are designated as their respective heads:


Government body	Head
Government body	Head
Access to Family Justice Task Force	Chair
Agricultural Development Board	Chairman
Appeal Board on Teacher Certification	Chair
Assessment and Planning Appeal Board	Chairperson
Beaverbrook Art Gallery - Board of Governors	Chair
Beaverbrook Auditorium - Board of Governors	Chairman
Child Death Review Committee	Chairperson
Criminal Code Board of Review established under the Criminal Code (Canada)	Chair
Family Income Security Appeal Board	Chairperson
Farm Practices Review Board	Chairperson
Fort La Tour Development Authority	Chair
Judicial Council	Chair
Judicial Remuneration Commission	Chairperson
Labour and Employment Board	Chairperson
Le Centre Communautaire Sainte- Anne - Community Board	Chairman
Lotteries Commission of New Brunswick	Chairman
Maritime Forestry Complex Corporation - Board of Directors	Chairman
Memramcook Institute - Board of Directors	Chair
Mental Health Review Boards - South Regions 1, 2, 3 and 7	Chair
Mental Health Review Boards - Regions 4, 5 and 6 - Campbellton & Catchment Area	Chair
Mental Health Services Tribunal - Region 4	Chair
Mental Health Services Tribunal - Region 5	Chair
Mental Health Services Tribunal - Region 6	Chair
Mental Health Tribunal - South Regions 1, 2, 3 and 7	Chair
Military Compound Board	Chairman
Minimum Wage Board	Chairman
Municipal Capital Borrowing Board	Chairman
New Brunswick Advisory Council on Seniors	Chair
New Brunswick Advisory Council on Youth	Chair
New Brunswick Arts Board - Conseil des arts du Nouveau-Brunswick	Chairperson
New Brunswick Crop Insurance Commission	Chairperson
New Brunswick Energy and Utilities Board	Chairperson
New Brunswick Grain Commission	Chairman
New Brunswick Farm Products Commission	Chairperson
New Brunswick Fisheries Development Board	Chairman
New Brunswick Forest Products Commission	Chairman
New Brunswick Human Rights Commission	Chairperson
New Brunswick Industrial Development Board	Chairperson
New Brunswick Insurance Board	Chairperson
New Brunswick Municipal Finance Corporation	President
New Brunswick Public Libraries Foundation - board of trustees	Chairperson
New Brunswick Research and Productivity Council	Chairman
Order of New Brunswick Advisory Council	Chairperson
Premier’s Council on the Status of Disabled Persons	Chairperson
Post-Secondary Student Financial Assistance Review Board	Chair
Review Board Centre Hospitalier Restigouche Hospital Center Inc.	Chair
Saint John Harbour Bridge Authority	Chair
Small Claims - complaints committee	Chairperson
Trustees of the Board of the New Brunswick Community College Foundation	Chair
Uniform Contributory Pension Plan - Pension Board	Chairman
Workplace Health, Safety and Compensation Commission - Appeals Tribunal	Chairperson