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Administrative Justice Office
INFORMATION BULLETIN
December 15, 2006

Application of the Freedom of Information and Protection of Privacy Act to Administrative Tribunals
(Section 61 of the Administrative Tribunals Act)

This Information Bulletin discusses the application of the Freedom of Information and Protection of Privacy Act (FOIPPA) to administrative tribunals that are subject to section 61 of the Administrative Tribunals Act (ATA).  Topics discussed in this Bulletin include:

WHAT IS FOIPPA?

• How does FOIPPA work?
• Does FOIPPA apply to administrative tribunals?

WHAT DOES SECTION 61 OF THE ATA DO?

• What is the purpose of section 61?
• Wording of section 61
• To which tribunals does section 61 apply?

SECTION 61 EXEMPTIONS FROM FOIPPA

• Exemptions from access requirements
• Exemptions from severance requirements

BALANCING ACCESS WITH PROTECTION OF PRIVACY

This Information Bulletin is not intended as legal advice.  For legal advice about specific issues related to FOIPPA or section 61 of the ATA, a lawyer should be consulted.  Tribunals may also wish to consult with their ministry’s information and privacy contact.

For more information about administrative tribunals and the Administrative Tribunals Act, please contact the Administrative Justice Office at:

PO Box 9210, STN PROV GOVT
Victoria BC V8W 9J1
Ph: 250 387-0058
Fax: 250 387-0079
www.gov.bc.ca/ajo 

WHAT IS FOIPPA?

FOIPPA is legislation that provides for access to records of a public body, while also protecting the privacy of personal information that may be contained in those records. 

How does FOIPPA work?
FOIPPA balances access rights and privacy rights.  FOIPPA provides a right of access to records held by public bodies.  However, if the record contains personal information, the public body must “sever” or delete that personal information before giving access to the record.  FOIPPA also imposes obligations on public bodies to keep secure the personal information in their records and ensure that personal information is accurate.

Does FOIPPA apply to administrative tribunals?
FOIPPA applies to most provincial public bodies, including administrative tribunals.  FOIPPA places responsibility for complying with the provisions of the Act on the “head” of a public body, which for most tribunals is the chair.

As discussed below, FOIPPA does not apply to most adjudicative records of a tribunal, if section 61 of the ATA applies to the tribunal.  However, both the access to information and protection of privacy provisions in FOIPPA still apply to the tribunal’s administrative records.

WHAT DOES SECTION 61 OF THE ATA DO?

What is the purpose of section 61?
Section 61 of the ATA recognizes the importance of maintaining a transparent and accessible administrative justice system, while taking into account the special nature of the quasi-judicial decision‑making process and the specific fairness responsibilities that tribunals have.

Prior to the enactment of section 61, individuals could request access to a tribunal’s records under section 5 of FOIPPA.  Providing access to most tribunal documents was consistent with the tribunal’s requirements or policies that permitted the public to attend its hearings.  However, there was uncertainty about tribunals’ ability to refuse access to certain documents, even where there seemed to be valid reasons for doing so.  As well, FOIPPA required that tribunals sever personal information from records that were already public, which created very real practical difficulties in many cases.

Section 61 of the ATA is intended to address the uncertainty that administrative tribunals previously faced in applying FOIPPA to their records. 

Wording of section 61

(1) In this section, "decision maker" includes a tribunal member, adjudicator, registrar or other officer who makes a decision in an application or an interim or preliminary matter, or a person who conducts a dispute resolution process.

(2) The Freedom of Information and Protection of Privacy Act, other than section 44 (2), (2.1) and (3), does not apply to any of the following:

(a) a personal note, communication or draft decision of a decision maker;
(b) notes or records kept by a person appointed by the tribunal to conduct a dispute resolution process in relation to an application;
(c) any information received by the tribunal in a hearing or part of a hearing from which the public, a party or an intervener was excluded;
(d) a transcription or tape recording of a tribunal proceeding;
(e) a document submitted in a hearing for which public access is provided by the tribunal;
(f) a decision of the tribunal for which public access is provided by the tribunal.

(3) Subsection (2) does not apply to personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 or more years or to other information that has been in existence for 50 or more years.

To which tribunals does section 61 apply?
Section 61 of the ATA is not applicable to all tribunals.  The tribunals to which section 61 of the ATA applies are listed in Appendix A.

SECTION 61 EXEMPTIONS FROM FOIPPA

In certain situations, section 61 of the ATA relieves those tribunals to which that section applies from the FOIPPA requirements to:

• provide access to their adjudicative documents, or
• sever personal information from adjudicative documents to which access is provided. 

Exemptions from access requirements

• Personal notes, communications or draft decisions

To ensure well thought out, well-reasoned decision-making, it is important that decision-makers be free to create documents to assist them in their duties.  The work and analysis that eventually leads to a decision may evolve or change in the course of reaching the decision.  That decision will generally be issued in writing and set out the full reasons for making the decision. 

A decision-maker should not have to worry that the notes he or she takes during a hearing and the documents he or she creates in the process of analysis may be made public; otherwise the decision-making process could be impaired.  This is similar to the protection FOIPPA provides, in subsection 3(1)(b), to judges and others in a judicial or quasi-judicial capacity.

• Material submitted during dispute resolution processes

A number of tribunals have the power to establish and conduct dispute resolution processes.  Dispute resolution is often a very useful and valuable alternative to a hearing. It can be less costly, quicker and lead to better results.

To make sure those processes are effective, it is important that the parties feel they can freely disclose information and make settlement proposals to each other, without negative consequences.  

Subsection 61(2)(b) makes it clear that FOIPPA cannot be used to access the notes or records of the person appointed to conduct the process.  This exception is also supported by section 29 of the ATA, which provides that a person must not disclose the documents submitted or statements made during a dispute resolution process (except in a criminal proceeding or where the parties consent).  

• Documents submitted during a proceeding from which the public is excluded

Given the public interest in the transparency of quasi-judicial proceedings, most tribunal hearings are open to the public and subsection 41(3) of the ATA provides that a tribunal must provide access to documents submitted at a public hearing.  However, if a tribunal has excluded the public from all or part of the hearing, under subsection 41(2) of the ATA or an equivalent provision, or has excluded parties and interveners under section 42 of the ATA, the tribunal can refuse to provide access to documents submitted during that part of the hearing.  Subsection 61(2)(c) confirms that the access provisions in FOIPPA do not apply to that material. 

Exemptions from severance requirements

• Public hearing records

Prior to the ATA, the requirement to sever (delete) personal information from tape recordings of public hearings or from documents submitted at public hearings was unclear.  With hearings that are often lengthy and sometimes involve thousands of pages of documents, this could be extremely time-consuming and costly.  As the public already had access to the information during the hearing, the requirement to sever personal information from hearing records was not necessary.

Subsections 61(2)(d) and (e) clarify that the severance requirements in FOIPPA do not apply to tape recordings or transcripts of the hearing or to documents submitted during the hearing, where public access to the hearing was provided.

• Tribunal decisions

The severance requirements in FOIPPA previously conflicted with the requirement for most tribunals to make their decisions available to the public (under subsection 51(4) of the ATA or an equivalent provision in the tribunal’s enabling legislation).  Subsection 61(2)(f) clarifies that tribunals are not required to delete the names of the parties or remove other personal information from their publicly available decisions. 

BALANCING ACCESS WITH PROTECTION OF PRIVACY

If section 61 of the ATA applies to a tribunal, it provides an exemption from the application of FOIPPA to most of the tribunal’s adjudicative records.  However, those tribunals are encouraged to continue balancing the need to maintain public access to hearings with individuals’ expectations that their privacy will be protected.  When developing policies in this area, tribunals may consult with their ministry contact for information and privacy issues, the Information and Privacy Commissioner and the Administrative Justice Office.

Appendix A

Tribunals to which Section 61 of the Administrative Tribunals Act applies: