PART 4 - Office and Powers of Information and Privacy Commissioner

Appointment of commissioner

37. (1) On the recommendation of the Legislative Assembly, the Lieutenant Governor must appoint as the Information and Privacy Commissioner a person who has been unanimously recommended by a special Committee of the Legislative Assembly for the appointment.

(2) The commissioner is an officer of the Legislature.

(3) Subject to section 38, the commissioner holds office for a term of 6 years.

(4) A person who is appointed under this section is not eligible to be reappointed as commissioner.

Resignation, removal or suspension of commissioner

38. (1) The commissioner may resign at any time by notifying the Speaker of the Legislative Assembly or, if there is no speaker or the speaker is absent from British Columbia, by notifying the clerk of the Legislative Assembly.

(2) The Lieutenant Governor in Council must remove the commissioner from office or suspend the commissioner for cause or incapacity on the recommendation of 2/3 of the members present in the Legislative Assembly.

(3) If the Legislative Assembly is not sitting, the Lieutenant Governor in Council may suspend the commissioner for cause or incapacity.

Acting commissioner

39. (1) The Lieutenant Governor in Council may appoint an acting commissioner if

(a) the office of commissioner is or becomes vacant when the Legislative Assembly is not sitting,

(b) the commissioner is suspended when the Legislative Assembly is not sitting,

(c) the commissioner is removed or suspended or the office of the commissioner becomes vacant when the Legislative Assembly is sitting, but no recommendation is made by the Assembly under section 37(1) before the end of the session, or

(d) the commissioner is temporarily absent because of illness or for another reason.

(2) An acting commissioner holds office until

(a) a person is appointed under section 37(1),

(b) the suspension of the commissioner ends,

(c) the Legislative Assembly has sat for 20 days after the date of the acting commissioner's appointment, or

(d) the commissioner returns to office after a temporary absence, whichever is the case and whichever occurs first.

Salary, expenses and benefits of commissioner

40. (1) A commissioner appointed under section 37(1) or 39(1) is entitled

(a) to be paid, out of the consolidated revenue fund, a salary equal to the salary paid to the chief judge of the Provincial Court, and

(b) to be reimbursed for reasonable travelling and out of pocket expenses personally incurred in performing the duties of the office.

(2) The Lieutenant Governor in Council may order that the Pension (Public Service) Act applies to the commissioner.

Staff of commissioner

41. (1) The commissioner may appoint, in accordance with the Public Service Act, employees necessary to enable the commissioner to perform the duties of the office.

(2) The commissioner may retain any consultants, mediators or other persons and may establish their remuneration and other terms and conditions of their retainers.

(3) The Public Service Act does not apply in respect of a person retained under subsection (2).

(4) The commissioner may make a special report to the Legislative Assembly if, in the commissioner's opinion,

(a) the amounts and establishment provided for the office of commissioner in the estimates, or

(b) the services provided by the Government Personnel Services Division are inadequate for fulfilling the duties of the office.

General powers of commissioner

42. (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

(a) conduct investigations and audits to ensure compliance with any provision of this Act,

(b) make an order described in section 58(3) whether or not a review is requested,

(c) inform the public about this Act,

(d) receive comments from the public concerning the administration of this Act,

(e) engage in or commission research into anything affecting the achievement of the purposes of this Act,

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

(g) comment on the implications for access to information or for protection of privacy of automated systems for collection, storage, analysis or transfer of information,

(h) comment on the implications for protection of privacy of using or disclosing personal information for record linkage,

(i) authorize the collection of personal information from sources other than the individual the information is about, and

(j) 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

(a) a duty imposed by this Act or the regulations has not been performed,

(b) an extension of time for responding to a request is not in accordance with section 10,

(c) a fee required under this Act is inappropriate,

(d) a correction of personal information requested under section 29(1) has been refused without justification, and

(e) personal information has been collected, used or disclosed by a public body in contravention of Part 3.

Power to authorize a public body to disregard requests

43. If the head of a public body asks, the commissioner may authorize the public body to disregard requests under section 5 that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body.

Powers of commissioner in conducting investigations, audits or inquiries

44. (1) In conducting an investigation under section 42 or an inquiry under section 56, the commissioner has the powers given to a commissioner by sections 15 ("Power of commissioners/ 15. 1) and 16 of the Inquiry Act and the powers given by subsection (2) of this section.

(2) The commissioner may require any record to be produced to the commissioner and may examine any information in a record, including personal information.

(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the commissioner within 10 days any record or a copy of any record required under subsection (1) or (2).

(4) If a public body is required to produce a record under subsection (1) or (2) and it is not practicable to make a copy of the record, the head of that public body may require the commissioner to examine the original at its site.

(5) After completing a review or investigating a complaint, the commissioner must return any record or any copy of any record produced by the public body concerned.

Statements made to the commissioner not admissible in evidence

45. (1) A statement made or an answer given by a person during an investigation or inquiry by the commissioner is inadmissible in evidence in court or in any other proceeding, except

(a) in a prosecution for perjury in respect of sworn testimony,

(b) in a prosecution for an offence under this Act, or

(c) in an application for judicial review or an appeal from a decision with respect to that application.

(2) Subsection (1) applies also in respect of evidence of the existence of proceedings conducted before the commissioner.

Protection against libel or slander actions

46. Anything said, any information supplied or any record produced by a person during an investigation or inquiry by the commissioner is privileged in the same manner as if the investigation or inquiry were a proceeding in a court.

Restrictions on disclosure of information by the commissioner and staff

47. (1) The commissioner and anyone acting for or under the direction of the commissioner must not disclose any information obtained in performing their duties, powers and functions under this Act, except as provided in subsections (2) to (5).

(2) The commissioner may disclose, or may authorize anyone acting on behalf of or under the direction of the commissioner to disclose, information that is necessary to

(a) conduct an investigation, audit or inquiry under this Act, or

(b) establish the grounds for findings and recommendations contained in a report under this Act.

(3) In conducting an investigation, audit or inquiry under this Act and in a report under this Act, the commissioner and anyone acting for or under the direction of the commissioner must take every reasonable precaution to avoid disclosing and must not disclose

(a) any information the head of a public body would be required or authorized to refuse to disclose if it were contained in a record requested under section 5 [Order 12], or

(b) whether information exists, if the head of a public body in refusing to provide access does not indicate whether the information exists.

(4) The commissioner may disclose to the Attorney General information relating to the commission of an offence against an enactment of British Columbia or Canada if the commissioner considers there is evidence of an offence.

(5) The commissioner may disclose, or may authorize anyone acting for or under the direction of the commissioner to disclose, information in the course of a prosecution, application or appeal referred to in section 45.

Protection of commissioner and staff

48. No proceedings lie against the commissioner, or against a person acting on behalf of or under the direction of the commissioner, for anything done, reported or said in good faith in the exercise or performance or the intended exercise or performance of a duty, power or function under this Part or Part 5.

Delegation by commissioner

49. (1) The commissioner may delegate to any person any duty, power or function of the commissioner under this Act, except

(a) the power to delegate under this section,

(b) the power to examine information described in section 12 or 15 (Cabinet confidences and information harmful to law enforcement), and

(c) the duties, powers and functions specified in section 42(1)(b), 43 or 58.

(2) A delegation under subsection (1) must be in writing and may contain any conditions or restrictions the commissioner considers appropriate.

Role of Ombudsman

50. The Ombudsman may not investigate any matter that the commissioner has the power to investigate or review under this Act unless the commissioner agrees.

Annual report of commissioner

51. (1) The commissioner must report annually to the Speaker of the Legislative Assembly on

(a) the work of the commissioner's office, and

(b) any complaints or reviews resulting from a decision, act or failure to act of the commissioner as head of a public body.

(2) The Speaker must lay each annual report before the Legislative Assembly as soon as possible.