PART V -- GENERAL

GENERAL

Costs

57. (1) Where no provision is made for a charge or fee under any other Act, a head shall require the person who makes a request for access to a record to pay,

(a) a search charge for every hour of manual search required in excess of two hours to locate a record;

(b) the costs of preparing the record for disclosure;

(c) computer and other costs incurred in locating, retrieving, processing and copying a record; and

(d) shipping costs.

Exception, personal information

(2) Despite subsection (1), a head shall not require an individual to pay a fee for access to his or her own personal information.

Estimate of costs

(3) The head of an institution shall, before giving access to a record, give the person requesting access a reasonable estimate of any amount that will be required to be paid under this Act that is over $25.

Waiver of payment

(4) A head shall waive the payment of all or any part of an amount required to be paid under this Act where, in the head's opinion, it is fair and equitable to do so after considering,

(a) the extent to which the actual cost of processing, collecting and copying the record varies from the amount of the payment required by subsection (1);

(b) whether the payment will cause a financial hardship for the person requesting the record;

(c) whether dissemination of the record will benefit public health or safety; and

(d) any other matter prescribed in the regulations.

Review

(5) A person who is required to pay a fee under subsection (1) may ask the Commissioner to review the amount of the fee or the head's decision not to waive the fee.

Disposition of payments

(6) The costs provided in this section shall be paid and distributed in the manner prescribed in the regulations. [R.S.O. 1990, c.F.31, s.57.]

Annual report of Commissioner

58. (1) The Commissioner shall make an annual report, in accordance with subsection (2), to the Speaker of the Assembly who shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session.

Contents of report

(2) A report made under subsection (1) shall provide a comprehensive review of the effectiveness of this Act and the Municipal Freedom of Information and Protection of Privacy Act in providing access to information and protection of personal privacy including,

(a) a summary of the nature and ultimate resolutions of appeals carried out under subsection 50(1) of this Act and under subsection 39(1) of the Municipal Freedom of Information and Protection of Privacy Act ;

(b) an assessment of the extent to which institutions are complying with this Act and the Municipal Freedom of Information and Protection of Privacy Act; and

(c) the Commissioner's recommendations with respect to the practices of particular institutions and with respect to proposed revisions to this Act, the Municipal Freedom of Information and Protection of Privacy Act and the regulations under them. [R.S.O. 1990, c.F.31, s.58.]

Powers and duties of Commissioner

59. The Commissioner may,

(a) offer comment on the privacy protection implications of proposed legislative schemes or government programs;

(b) after hearing the head, order an institution to,

(i) cease collection practices, and

(ii) destroy collections of personal information,

that contravene this Act;

(c) in appropriate circumstances, authorize the collection of personal information otherwise than directly from the individual;

(d) engage in or commission research into matters affecting the carrying out of the purposes of this Act;

(e) conduct public education programs and provide information concerning this Act and the Commissioner's role and activities; and

(f) receive representations from the public concerning the operation of this Act. [R.S.O. 1990, c.F.31, s.59.]

Regulations

60. The Lieutenant Governor in Council may make regulations,

(a) respecting the procedures for access to original records under section 30 ;

(b) respecting the procedures for access to personal information under subsection 48(3) ;

(c) prescribing the circumstances under which records capable of being produced from machine readable records are not included in the definition of "record" for the purposes of this Act;

(d) setting standards for and requiring administrative, technical and physical safeguards to ensure the security and confidentiality of records and personal information under the control of institutions;

(e) setting standards for the accuracy and completeness of personal information that is under the control of an institution;

(f) prescribing time periods for the purposes of subsection 40(1) ;

(g) prescribing the payment and allocation of fees received under section 57 ;

(h) prescribing matters to be considered in determining whether to waive all or part of the costs required under section 57 ;

(i) designating any agency, board, commission, corporation or other body as an institution and designating a head for each such institution;

(j) prescribing conditions relating to the security and confidentiality of records used for a research purpose;

(k) prescribing forms and providing for their use;

(l) respecting any matter the Lieutenant Governor in Council considers necessary to carry out effectively the purposes of this Act. [R.S.O. 1990, c.F.31, s.60.]

Offences

61. (1) No person shall,

(a) wilfully disclose personal information in contravention of this Act;

(b) wilfully maintain a personal information bank that contravenes this Act;

(c) make a request under this Act for access to or correction of personal information under false pretenses;

(d) wilfully obstruct the Commissioner in the performance of his or her functions under this Act;

(e) wilfully make a false statement to, mislead or attempt to mislead the Commissioner in the performance of his or her functions under this Act; or

(f) wilfully fail to comply with an order of the Commissioner.

Penalty

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine not exceeding $5,000.

Consent of Attorney General

(3) A prosecution shall not be commenced under clause (1)(d), (e) or (f) without the consent of the Attorney General. [R.S.O. 1990, c.F.31, s.61.]

Delegation of head's powers

62. (1) A head may in writing delegate a power or duty granted or vested in the head to an officer or officers of the institution subject to such limitations, restrictions, conditions and requirements as the head may set out in the delegation.

Protection from civil proceeding

(2) No action or other proceeding lies against a head, or against a person acting on behalf or under the direction of the head, for damages resulting from the disclosure or non- disclosure in good faith of a record or any part of a record under this Act, or from the failure to give a notice required under this Act if reasonable care is taken to give the required notice.

Vicarious liability of Crown preserved

(3) Subsection (2) does not by reason of subsections 5(2) and (4) of the Proceedings Against the Crown Act relieve the Crown of liability in respect of a tort committed by a person mentioned in subsection (2) to which it would otherwise be subject, and the Crown is liable under that Act for any such tort in a like manner as if subsection (2) had not been enacted.

Vicarious liability of certain institutions preserved

(4) Subsection (2) does not relieve an institution of liability in respect of a tort committed by a person mentioned in subsection (2) to which it would otherwise be subject and the institution is liable for any such tort in a like manner as if subsection (2) had not been enacted. [R.S.O. 1990, c.F.31, s.62.]

Oral requests

63. (1) Where a head may give access to information under this Act, nothing in this Act prevents the head from giving access to that information in response to an oral request or in the absence of a request.

Pre-existing access preserved

(2) This Act shall not be applied to preclude access to information that is not personal information and to which access by the public was available by custom or practice immediately before this Act comes into force. [R.S.O. 1990, c.F.31, s.63.]

Crown privilege

64. (1) This Act does not impose any limitation on the information otherwise available by law to a party to litigation.

Powers of courts and tribunals

(2) This Act does not affect the power of a court or a tribunal to compel a witness to testify or compel the production of a document. [R.S.O. 1990, c.F.31, s.64.]

Application of Act

65. (1) This Act does not apply to records placed in the Archives of Ontario by or on behalf of a person or organization other than an institution.

Idem

(2) This Act does not apply to a record in respect of a patient in a psychiatric facility as defined by section 1 of the Mental Health Act, where the record,

(a) is a clinical record as defined by subsection 35(1) of the Mental Health Act; or

(b) contains information in respect of the history, assessment, diagnosis, observation, examination, care or treatment of the patient.

Idem

(3) This Act does not apply to notes prepared by or for a person presiding in a proceeding in a court of Ontario if those notes are prepared for that person's personal use in connection with the proceeding. [R.S.O. 1990, c.F.31, s.65.]

Note: On a day to be named by proclamation of the Lieutenant Governor, section 65 is amended by the Statutes of Ontario, 1994, chapter 12, section 49 by adding the following subsections:

Same

(4) This Act does not apply to anything contained in a judge's performance evaluation under section 51.11 of the Courts of Justice Act or to any information collected in connection with the evaluation.

Same

(5) This Act does not apply to a record of the Ontario Judicial Council, whether in the possession of the Judicial Council or of the Attorney General, if any of the following conditions apply:

1. The Judicial Council or its subcommittee has ordered that the record or information in the record not be disclosed or made public.

2. The Judicial Council has otherwise determined that the record is confidential.

3. The record was prepared in connection with a meeting or hearing of the Judicial Council that was not open to the public.

Exercise of rights of deceased, etc., persons

66. Any right or power conferred on an individual by this Act may be exercised,

(a) where the individual is deceased, by the individual's personal representative if exercise of the right or power relates to the administration of the individual's estate;

(b) where a committee has been appointed for the individual or where the Public Trustee has become the individual's committee, by the committee; and

(c) where the individual is less than sixteen years of age, by a person who has lawful custody of the individual. [R.S.O. 1990, c.F.31, s.66.]

Note: On a day to be named by proclamation of the Lieutenant Governor, clause 66(b) is repealed by the Statutes of Ontario, 1992, chapter 32, section 13 and the following substituted:

(b) by the individual's attorney under a continuing power of attorney, the individual's attorney under a validated power of attorney for personal care, the individual's guardian of the person, or the individual's guardian of property; and

[See: 1992, c.32, ss. 13, 28.]

Conflict with other Act

67. (1) This Act prevails over a confidentiality provision in any other Act unless subsection (2) or the other Act specifically provides otherwise. [R.S.O. 1990, c.F.31, s.67(1).]

Idem

(2) The following confidentiality provisions prevail over this Act:

1. Subsection 53(1) of the Assessment Act.

2. Subsections 45(8), (9) and (10), 54(4) and (5), 74(5), 75(6), 76(11) and 116(6) and section 165 of the Child and Family Services Act.

3. Subsection 77(6) of the Colleges Collective Bargaining Act.

4. Section 10 of the Commodity Futures Act.

. . . . .

6. Subsection 137(2) of the Courts of Justice Act.

7. Subsection 113(1) of the Labour Relations Act.

7.1 Section 40.1 of the Occupational Health and Safety Act.

8. Subsection 32(4) of the Pay Equity Act.

8.1 Subsection 28.38(2) of the Public Service Act.

9. Sections 16 and 17 of the Securities Act.

10. Subsection 4(2) of the Statistics Act.

11. Subsection 28(2) of the Vital Statistics Act. [R.S.O. 1990, c.F.31, s.67(2); 1992, c.14, s.1; 1993, c.38, s.65; 1994, c.11, s.388.]

Review of this Act

68. The Standing Committee on the Legislative Assembly shall, on or before the 1st day of January, 1991, undertake a comprehensive review of this Act and shall, within one year after beginning that review, make recommendations to the Legislative Assembly regarding amendments to this Act. [R.S.O. 1990, c.F.31, s.68.]

Application

69. This Act applies to any record in the custody or under the control of an institution regardless of whether it was recorded before or after this Act comes into force. [R.S.O. 1990, c.F.31, s.69.]

Crown bound

70. This Act binds the Crown. [R.S.O. 1990, c.F.31, s.70.]