Section 42 - General Powers of the Commissioner

Overview

Part 4 of the Freedom of Information and Protection of Privacy Act establishes the Information and Privacy Commissioner (Commissioner) and a supporting office. The Commissioner has a continuing responsibility to ensure that public bodies are complying with the letter and spirit of the Act. In broad terms, the Commissioner has a number of functions; namely:

• monitoring compliance with the Act;
• educating the public about the Act; and
• investigating complaints and reviewing the decisions of the heads of public bodies on requests for information under the Act.

Section Reference

Section 42 of the Freedom of Information and Protection of Privacy Act

1. In addition to the commissioner's powers and duties under Part 5 with respect to reviews, the commissioner is generally responsible for monitoring how this Act is administered to ensure that its purposes are achieved, and may
   1. conduct investigations and audits to ensure compliance with any provision of this Act,
   2. make an order described in section 58(3), whether the order results from an investigation or audit under paragraph (a) or an inquiry under section 56.
   3. inform the public about this Act,
   4. receive comments from the public concerning the administration of this Act,
   5. engage in or commission research into anything affecting the achievement of the purposes of this Act,
   6. comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies,
   7. comment on the implications for access to information or for protection of privacy of automated systems for collection, storage, analysis or transfer of information,
   8. comment on the implications for protection of privacy of using or disclosing personal information for record linkage,
   9. authorize the collection of personal information from sources other than the individual the information is about, and
   10. bring to the attention of the head of a public body any failure to meet the prescribed standards for fulfilling the duty to assist applicants.
2. Without limiting subsection (1), the commissioner may investigate and attempt to resolve complaints that
   1. a duty imposed by this Act or the regulations has not been performed,
   2. an extension of time for responding to a request is not in accordance with section 10(1),
   3. a fee required under this Act is inappropriate,
   4. a correction of personal information requested under section 29(1) has been refused without justification, and
   5. personal information has been collected, used or disclosed in contravention of Part 3 by
      1. a public body or an employee, officer or director of a public body, or
      2. an employee or associate of a service provider. 

Summary

Under Section 42(1), the Commissioner has specific powers with regard to monitoring how the Act is administered to ensure the achievement of its purposes. These powers include the power to:

• investigate, audit and make orders enforcing public bodies’ compliance with the Act as provided under section 58;
• comment on the privacy/access implications of public bodies’ automated information systems, record linkage practices and proposed programs or legislation;
• promote public awareness, receive comments from the public and commission research with regard to the administration and purposes of the Act;
• authorize the collection of personal information (refer also to section 27(1)((a)(ii); and,
• bring to the attention of the head of public bodies failure in the duty to assist applicants.

The Commissioner is also given the power to investigate and mediate complaints regarding:

• non-performance of duties required by the Act;
• contravention of section 10 (Extending the time limit for responding);
• inappropriate fees;
• refusal to correct personal information under section 29(1) (Right to request correction of personal information); and,
• contravention of Part 3 (Protection of Privacy).

Interpretation

Interpretation Note 1 (Section 42(1)(a)):

Monitoring role

The Commissioner may investigate public bodies' administration of the Act. The Commissioner may also audit public bodies' practices in the areas of freedom of information and protection of privacy.

In the area of privacy protection, the Commissioner might:

• investigate a public body's disclosures of personal information to third parties to ensure that they fulfil the requirements of section 33 of the Act (Disclosure of personal information);
• review the records disposal practices of a public body to ensure that it is retaining personal information as required by section 31 of the Act; or,
• audit a public body's data matching practices to ensure that it has balanced the need to make optimum use of personal information against the following considerations:
  • the right of the people concerned to the protection of their privacy;
  • their right to be informed of any data matching activities; and,
  • their right to a review of any decisions based on the results of data matching.

researcher requests access to a file containing correspondence to and from the Office of the Premier, 1935-1940, concerning the construction of a new road. The correspondence includes the names and addresses of people who submitted letters and received replies.

In the area of freedom of information, the Commissioner might:

• examine a public body's compliance with the time limits imposed by the Act;
• review a public body's compliance with the Act's requirements for third party notification; or,
• review a public body's disclosure of records in the public interest under section 25 of the Act.

Interpretation Note 2 (Section 42(1)(b)):

The Commissioner’s power to make orders is not limited to inquiries. He may make an order following an investigation or audit as well.

Interpretation Note 3 (Section 42(1)(c)):

In his or her role as a public promoter of information and privacy issues, the Commissioner has a duty to inform the public about the Act. For example, the Commissioner's office might:

• issue publications or videos to the public and to schools explaining the rights the Act provides to people and the obligations the Act imposes on public bodies;
• conduct information sessions for the public or for interest groups; or,
• assist an educational institution to prepare a freedom of information and protection of privacy segment for a course in public policy.

Interpretation Note 4 (Section 42(1)(e)):

Engage in or commission research

The Commissioner also has the mandate to conduct or commission research into any issue affecting the way in which the Act's purposes are being achieved. The Commissioner might choose, for example, to hire a consultant to research the value of testing transport employees for various medical conditions and the related implications for the potential invasion of employees' privacy.

Interpretation Note 5 (Section 42(1)(f)):

The Commissioner may also examine and comment on legislation and program activities for any implications for freedom of information and protection of privacy.

Examples

• If a public body planned to amend its legislation to include a provision allowing for the release of personal information in certain circumstances, the Commissioner would be able to examine the public body's reasons for including such an amendment and comment on the amendment's compliance with the Act and its implications for the protection of the privacy of the persons concerned.
• A public body is considering the establishment of a new natural park. In the course of the public consultation process, the public body requires that the public use the formal request process under the Act to obtain information which is relevant to the decision rather than making the information routinely available to the public. The Commissioner might comment on the public body's failure to provide relevant information to the public through routine channels.

"legislative schemes" means proposals for actions to be taken by the Legislature in the form of enactments or orders in council.

While the Commissioner cannot require legislators to enact laws that comply with the spirit of open information and privacy rights, the ability to comment upon and inform the public of the implications of government proposals helps to ensure that the government may be held accountable. This power of persuasion is similar to that held by the Ombudsman.

Interpretation Note 6 (Section 42(1)(g)):

Similarly, the Commissioner may review automated information systems to ensure that they comply with the Act in regard to the collection, use, storage and disclosure of personal information.

Interpretation Note 7 (Section 42(1)(j)):

Failure to meet prescribed standards

The Commissioner also has express power to investigate and comment on failures to meet the prescribed standards for fulfilling the duty to assist applicants and to authorize the collection of personal information from sources other than the individual to whom the information relates.

Interpretation Note 8 (Section 42(2)):

Reviews and complaints

Any person who is not satisfied with the disposition of a request for access to information or correction of personal information by the head of a public body may ask the Commissioner to review the head's decision. [See Part 5 (Reviews and Complaints) for a broader policy discussion of the review and complaint processes.] The Commissioner also has the power to conduct investigations in cases where no review has been requested and no complaint made.

This aspect of the Commissioner's position involves the review of actions, failures to act or decisions of the heads of public bodies respecting requests for personal and non-personal information or correction of personal information. It also entails the investigation and settlement of complaints regarding the inappropriate collection, use or disclosure of personal information by a public body, officer of a public body, director or employee (which includes a service provider) or any employee or associate of a service provider, about public bodies' protection of personal information, the failure to perform a duty imposed by the Act, or the imposition of unreasonable fees or extensions.

The Commissioner has considerable powers in this area. For example, the Commissioner has the power to summon witnesses, to compel them to provide testimony and to compel the production of records. The Commissioner may, however, attempt to settle an issue through mediation and, as a last resort, may conduct an inquiry.

Sectional Index of Commissioner's Orders

For orders organized by the Act's section numbers, Click here.

For a summary of Commissioner's orders and policy interpretation of key points, Click here.

Last updated: July 25, 2007