PART 2 - Freedom of Information

Information Rights and How to Exercise Them

Information rights

4. (1) A person who makes a request under section 5 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. [Order 7, Order 11, Order 20, Order 31]

(2) The right of access to a record does not extend to information excepted from disclosure under Division 2 of this Part, but if that information can reasonably be severed from a record an applicant has the right of access to the remainder of the record. [Order 20, Order 29]

(3) The right of access to a record is subject to the payment of any fee required under section 75.

How to make a request

5. (1) To obtain access to a record, an applicant must make a written request to the public body that the applicant believes has custody or control of the record. [Order 11]

(2) The applicant may ask for a copy of the record or ask to examine the record.

Duty to assist applicants

6. (1) The head of a public body must make every reasonable effort to assist applicants and to respond without delay to each applicant openly, accurately and completely. [Order 30]

(2) Moreover, the head of a public body must create a record for an applicant if

(a) the record can be created from a machine readable record in the custody or under the control of the public body using its normal computer hardware and software and technical expertise, and

(b) creating the record would not unreasonably interfere with the operations of the public body.

Time limit for responding

7. The head of a public body must respond not later than 30 days after a request is received unless

(a) the time limit is extended under section 10, or

(b) the request has been transferred under section 11 to another public body.

Contents of response

8. (1) In a response under section 7, the head of the public body must tell the applicant

(a) whether or not the applicant is entitled to access to the record or to part of the record,

(b) if the applicant is entitled to access, where, when and how access will be given, and

(c) if access to the record or to part of the record is refused,

(i) the reasons for the refusal and the provision of this Act on which the refusal is based,

(ii) the name, title, business address and business telephone number of an officer or employee of the public body who can answer the applicant's questions about the refusal, and

(iii) that the applicant may ask for a review under section 53 or 63.

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

(a) a record containing information described in section 15 (information harmful to law enforcement), or

(b) a record containing personal information of a third party if disclosure of the existence of the information would be an unreasonable invasion of that party's personal privacy.

How access will be given

9. (1) If an applicant is told under section 8(1) that access will be given, the head of the public body concerned must comply with subsection (2) or (3) of this section.

(2) If the applicant has asked for a copy under section 5(2) and the record can reasonably be reproduced,

(a) a copy of the record or part of the record must be provided with the response, or

(b) the applicant must be given reasons for the delay in providing the record.

(3) If the applicant has asked to examine the record under section 5(2) or if the record cannot reasonably be reproduced, the applicant must

(a) be permitted to examine the record or part of the record, or

(b) be given access in accordance with the regulations.

Extending the time limit for responding

10. (1) The head of a public body may extend the time for responding to a request for up to 30 days or, with the commissioner's permission, for a longer period if

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

(b) a large number of records is requested or must be searched and meeting the time limit would unreasonably interfere with the operations of the public body,

(c) more time is needed to consult with a third party or other public body before the head can decide whether or not to give the applicant access to a requested record, or

(d) a third party asks for a review under section 52(2) or 62(2).

(2) If the time is extended under subsection (1), the head of the public body must tell the applicant

(a) the reason,

(b) when a response can be expected, and

(c) that the applicant may complain about the extension under section 42(2)(b) or 60(1)(a).

Transferring a request

11. (1) Within 10 days after a request for access to a record is received by a public body, the head of the public body may transfer the request and, if necessary, the record 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

(c) the record is in the custody or under the control of the other public body.

(2) If a request is transferred under subsection (1),

(a) the head of the public body who transferred the request must notify the applicant of the transfer, and

(b) the head of the public body to which the request is transferred must respond to the applicant in accordance with section 8 not later than 30 days after the request is received by that public body unless this time limit is extended under section 10.

Exceptions

Cabinet confidences

12. (1) The head of a public body must refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council or any of its committees, including any advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Executive Council or any of its committees. [Order 8, Order 9, Order 33]

(2) Subsection (1) does not apply to

(a) information in a record that has been in existence for 15 or more years,

(b) information in a record of a decision made by the Executive Council or any of its committees on an appeal under an Act, or

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

(i) the decision has been made public,

(ii) the decision has been implemented, or

(iii) 5 or more years have passed since the decision was made or considered.

[Order 8, Order 12, Order 33]

[Order 8]

Local public body confidences

12.1(1) The head of a local public body may refuse to disclose to an applicant information that would reveal

(a) a draft of a resolution, bylaw or other legal instrument by which the local public body acts or a draft of a private Bill, or

(b) the substance of deliberations of a meeting of its elected officials or of its governing body or a committee of its governing body, if an Act or a regulation under this Act authorizes holding that meeting in the absence of the public.

(2) Subsection (1) does not apply if

(a) the draft of the resolution, bylaw, other legal instrument or private Bill or the subject matter of the deliberations has been considered in a meeting open to the public, or

(b) the information referred to in that subsection is in a record that has been in existence for 15 or more years.

Policy advice or recommendations

13. (1) The head of a public body may refuse to disclose to an applicant information that would reveal advice or recommendations developed by or for a public body or a minister.

(2) The head of a public body must not refuse to disclose under subsection (1)

(a) any factual material,

(b) a public opinion poll,

(c) a statistical survey,

(d) an appraisal,

(e) an economic forecast,

(f) an environmental impact statement or similar information,

(g) a final report or final audit on the performance or efficiency of a public body or on any of its programs or policies,

(h) a consumer test report or a report of a test carried out on a product to test equipment of the public body,

(i) a feasibility or technical study, including a cost estimate, relating to a policy or project of the public body,

(j) a report on the results of field research undertaken before a policy proposal is formulated,

(k) a report of a task force, committee, council or similar body that has been established to consider any matter and make reports or recommendations to a public body,

(l) a plan or proposal to establish a new program or to change a program, if the plan or proposal has been approved or rejected by the head of the public body,

(m) information that the head of the public body has cited publicly as the basis for making a decision or formulating a policy, or

(n) a decision, including reasons, that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of the applicant.

(3) Subsection (1) does not apply to information in a record that has been in existence for 10 or more years. (15 for Cabinet materials)

Legal advice

14. The head of a public body may refuse to disclose to an applicant information that is subject to solicitor client privilege. [Order 5, Order 6, Order 16, Order 12, Order 23, Order 29, Order 38]

Disclosure harmful to law enforcement

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

(a) harm a law enforcement matter [Order 16, Order 32, Order 36],

(b) prejudice the defence of Canada or of any 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) reveal the identity of a confidential source of law enforcement information [Order 28, Order 32],

(d.1) 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 physical safety of a law enforcement officer or any other person,

(f) reveal any information relating to or used in the exercise of prosecutorial discretion [Order 20, Order 23],

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

(h) reveal a record that has been confiscated from a person by a peace officer in accordance with an enactment,

(i) facilitate the escape from custody of a person who is under lawful detention,

(j) facilitate the commission of an offence under an enactment of British Columbia or Canada, or

(k) harm the security of any property or system, including a building, a vehicle, a computer system or a communications system.

[Order 32]

(2) The head of a public body may refuse to disclose information to an applicant if the information

(a) is in a law enforcement record and the disclosure would be an offence under an Act of Parliament,

(b) is in a law enforcement record and the disclosure could reasonably be expected to expose to civil liability the author of the record or a person who has been quoted or paraphrased in the record, or

(c) is about the history, supervision or release of a person who is in custody or under supervision and the disclosure could reasonably be expected to harm the proper custody or supervision of that person.

(3) The head of a public body must not refuse to disclose under this section

(a) a report prepared in the course of routine inspections by an agency that is authorized to enforce compliance with an Act,

(b) a report, including statistical analysis, on the degree of success achieved in a law enforcement program unless disclosure of the report could reasonably be expected to interfere with or harm any of the matters referred to in subsection (1) or (2), or

(c) statistical information on decisions under the Crown Counsel Act to approve or not to approve prosecutions.

(4) The head of a public body must not refuse, after a police investigation is completed, to disclose under this section the reasons for a decision not to prosecute

(a) to a person who knew of and was significantly interested in the investigation, including a victim or a relative or friend of a victim, or

(b) to any other member of the public, if the fact of the investigation was made public.

Disclosure harmful to intergovernmental relations or negotiations

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

(a) harm the conduct by the government of British Columbia of relations between that government and any of the following or their agencies:

(i) the government of Canada or a province of Canada [Order 14];

(ii) the council of a municipality or the board of a regional district;

(iii) an aboriginal government [Order 14];

(iv) the government of a foreign state;

(v) an international organization of states,

(b) reveal information received in confidence from a government, council or organization listed in paragraph (a) or their agencies, or

(c) harm the conduct of negotiations relating to aboriginal self government or treaties.

(2) Moreover, the head of a public body must not disclose information referred to in subsection(1) without the consent of

(a) the Attorney General, for law enforcement information, or

(b) the Executive Council, for any other type of information.

(3) Subsection (1) does not apply to information that is in a record that has been in existence for 15 or more years unless the information is law enforcement information.
[Order 14]

Disclosure harmful to the financial or economic interests of a public body

17. (1) The head of a public body may refuse to disclose to an applicant information the disclosure of which could reasonably be expected to harm the financial or economic interests of a public body or the government of British Columbia or the ability of that government to manage the economy, including the following information:

(a) trade secrets of a public body or the government of British Columbia;

(b) financial, commercial, scientific or technical information that belongs to a public body or to the government of British Columbia and that has, or is reasonably likely to have, monetary value [Order 15];

(c) plans that relate to the management of personnel of or the administration of a public body and that have not yet been implemented or made public;

(d) information the disclosure of which could reasonably be expected to result in the premature disclosure of a proposal or project or in undue financial loss or gain to a third party;

(e) information about negotiations carried on by or for a public body or the government of British Columbia. [Order 1, Order 14]

[Order 1]

(1.1) The head of a public body may refuse to disclose under subsection (1) research information if the disclosure could reasonably be expected to deprive the researcher of priority of publication.

(2) The head of a public body must not refuse to disclose under subsection (1) the results of product or environmental testing carried out by or for that public body, unless the testing was done

(a) for a fee as a service to a person, a group of persons or an organization other than the public body, or

(b) for the purpose of developing methods of testing.

[Order 1, Order 14, Order 15, Order 26]

Disclosure harmful to the conservation of heritage sites, etc.

18. The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to result in damage to, or interfere with the conservation of,

(a) fossil sites, natural sites or sites that have an anthropological or heritage value,

(b) an endangered, threatened or vulnerable species, subspecies or race of plants, vertebrates or invertebrates, or

(c) any other rare or endangered living resources.

Disclosure harmful to individual or public safety

19. (1) The head of a public body may refuse to disclose to an applicant information, including personal information about the applicant, if the disclosure could reasonably be expected to

(a) threaten anyone else's safety or mental or physical health [Order 28], or

(b) interfere with public safety. [Order 28]

[Order 7, Order 17]

(2) The head of a public body may refuse to disclose to an applicant personal information about the applicant if the disclosure could reasonably be expected to result in immediate and grave harm to the applicant's safety or mental or physical health.

Information that will be published or released within 60 days

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

(a) that is available for purchase by the public, or

(b) that, within 60 days after the applicant's request is received, is to be published or released to the public.

(2) The head of a public body must notify an applicant of the publication or release of information that the head has refused to disclose under subsection (1)(b).

(3) If the information is not published or released within 60 days after the applicant's request is received, the head of the public body must reconsider the request as if it were a new request received on the last day of that period, but the information must not be refused under subsection (1)(b).

Disclosure harmful to business interests of a third party

21. (1) The head of a public body must refuse to disclose to an applicant information

(a) if it would reveal

(i) trade secrets defined in the schedule[[macron]] of a third party, or

(ii) commercial, financial, labour relations, scientific or technical information of a third party [Order 22],

(b) that is supplied, implicitly or explicitly, in confidence [Order 19, Order 22, Order 26], and

(c) the disclosure of which could reasonably be expected to

(i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party [Order 19],

(ii) 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,

(iii) result in undue financial loss or gain to any person or organization, or

(iv) 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.

[Order 22]

[Order 26, Order 32]

(2) The head of a public body must refuse to disclose to an applicant information that was obtained on a tax return or gathered for the purpose of determining tax liability or collecting a tax. [Order 22]

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

(a) the third party consents to the disclosure, or

(b) the information is in a record that is in the custody or control of the British Columbia Archives and Records Service or the archives of a public body and that has been in existence for 50 or more years.

Disclosure harmful to personal privacy

22. (1) The head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party's personal privacy. [Order 16, Order 17]

(2) In determining under subsection (1) or (3) whether a disclosure of personal information constitutes an unreasonable invasion of a third party's personal privacy, the head of a public body must consider all the relevant circumstances, including whether

(a) the disclosure is desirable for the purpose of subjecting the activities of the government of British Columbia or a public body to public scrutiny [Order 13, Order 18], Order 24, Order 27],

(b) the disclosure is likely to promote public health and safety or to promote the protection of the environment,

(c) the personal information is relevant to a fair determination of the applicant's rights,

(d) the disclosure will assist in researching or validating the claims, disputes or grievances of aboriginal people [Order 3],

(e) the third party will be exposed unfairly to financial or other harm [Order 32, Order 36],

(f) the personal information has been supplied in confidence [Order 13, Order 32, Order 36],

(g) the personal information is likely to be inaccurate or unreliable, and

(h) the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant. [Order 13, Order 24]

[Order 24, Order 27]

(3) A disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy if

(a) the personal information relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation,

(b) the personal information was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation [Order 13, Order 36],

(c) the personal information relates to eligibility for income assistance or social service benefits or to the determination of benefit levels,

(d) the personal information relates to employment, occupational or educational history [Order 32],

(e) the personal information was obtained on a tax return or gathered for the purpose of collecting a tax,

(f) the personal information describes the third party's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness [Order 32],

(g) the personal information consists of personal recommendations or evaluations, character references or personnel evaluations about the third party,

(g.1) the disclosure could reasonably be expected to reveal that the third party supplied, in confidence, a personal recommendation or evaluation, character reference or personnel evaluation [Order 17, Order 34],

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

(i) the personal information consists of the third party's name, address or telephone number and is to be used for mailing lists or solicitations by telephone or other means.

[Order 4, Order 24, Order 34]

(4) A disclosure of personal information is not an unreasonable invasion of a third party's personal privacy if

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

(b) there are compelling circumstances affecting anyone's health or safety and notice of disclosure is mailed to the last known address of the third party,

(c) an enactment of British Columbia or Canada authorizes the disclosure,

(d) the disclosure is for a research or statistical purpose and is in accordance with section 35,

(e) the information is about the third party's position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister's staff [Order 18, Order 24],

(f) the disclosure reveals financial and other details of a contract to supply goods or services to a public body,

(g) public access to the information is provided under the Financial Information Act,

(h) the information is about expenses incurred by the third party while travelling at the expense of a public body,

(i) the disclosure reveals details of a licence, permit or other similar discretionary benefit granted to the third party by a public body, not including personal information supplied in support of the application for the benefit, or

(j) the disclosure reveals details of a discretionary benefit of a financial nature granted to the third party by a public body, not including personal information that is supplied in support of the application for the benefit or is referred to in subsection (3)(c). [Order 3, Order 24]

(5) On refusing, under this section, to disclose personal information supplied in confidence about an applicant, the head of the public body must give the applicant a summary of the information unless the summary cannot be prepared without disclosing the identity of a third party who supplied the personal information.

(6) The head of the public body may allow the third party to prepare the summary of personal information under subsection (5).
[Order 13, Order 22, Order 23, Order 24, Order 36]

Notice to Third Parties

Notifying the third party

23. (1) If the head of a public body intends to give access to a record that the head has reason to believe contains information that might be excepted from disclosure under section 21 or 22, the head must give the third party a written notice under subsection (1.2).

(1.1) If the head of a public body does not intend to give access to a record that contains information excepted from disclosure under section 21 or 22, the head may give the third party a written notice under subsection (1.2).

(1.2) The notice must

(a) state that a request has been made by an applicant for access to a record containing information the disclosure of which may affect the interests or invade the personal privacy of the third party,

(b) describe the contents of the record, and

(c) state that, within 20 days after the notice is given, the third party may, in writing, consent to the disclosure or may make written representations to the public body explaining why the information should not be disclosed.

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

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

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

(c) a decision will be made within 30 days about whether or not to give the applicant access to the record.

Time limit and notice of decision

24. (1) Within 30 days after notice is given under section 23(1) or (1.1), the head of the public body must 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) 21 days after the day notice is given, or

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

(2) On reaching a decision under subsection (1), the head of the public body must give written notice of the decision to

(a) the applicant, and

(b) the third party.

(3) If the head of the public body decides to give access to the record or to part of the record, the notice must state that the applicant will be given access unless the third party asks for a review under section 53 or 63 within 20 days after the day notice is given under subsection (2).

Public Interest Paramount

Information must be disclosed if in the public interest

25. (1) Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information

(a) about a risk of significant harm to the environment or to the health or safety of the public or a group of people [Order 2, Order 22], or

(b) the disclosure of which is, for any other reason, clearly in the public interest.

(2) Subsection (1) applies despite any other provision of this Act.

(3) Before disclosing information under subsection (1), the head of a public body must, if practicable, notify,

(a) any third party to whom the information relates, and

(b) the commissioner.

(4) If it is not practicable to comply with subsection (3), the head of the public body must mail a notice of disclosure in the prescribed form

(a) to the last known address of the third party, and

(b) to the commissioner.

[Order 22]