Brave new world: The impact of access legislation on retention in Alberta municipalities

Retention schedules are the foundation of a municipal records management program, regardless of the size of the municipality. Of the four criteria utilized in the records appraisal process, the legal value of municipal records has always been a major challenge to any records manager. Retention requirements are legislated by federal, provincial and municipal governments to some degree. New legislation will soon complicate matters for records managers with Alberta municipalities.

On June 1, 1994 royal assent was given to Bill 18,(1) passed by the Alberta legislature on the previous day. Called the Freedom of Information and Protection. of Privacy Act (FOI), Alberta became the ninth jurisdiction in Canada to enact access legislation. Effective October 1, 1995, the Act applies principles of access and protection of personal privacy to all provincial departments and agencies, all Alberta local governments, school boards, hospital boards, and the like making them subject to statutory rights to access to information. The new Municipal Government Act(2) (NMGA), given royal assent at the end of the same session, contains companion sections for the period when FOI does not apply to local governments.

SCOPE OF THE STATUTES

The statutes share a number of basic principles with their federal and provincial counterparts. First, they acknowledge that the public has a right to information under the control of a local government. Second, exemptions from the right of access are limited and specific. Third, personal information must be protected from unauthorized disclosure. Hopefully, the entire FOI and sections 208, 214 to 218, 276, 299-301, 307, 561, 566 and 567 of the NMGA will be read in light of those principles which are set out in section 2 of the FOI statute. The case for disclosure should be reinforced by the Interpretation. Act(3) which mandates a liberal construction of a provincial statute. However, both statutes contain a significant restriction on the scope of these principles by permitting a local government to transfer, store or destroy any record in accordance with any statute or municipal by-law.

DEFINITIONS

Understanding terminology used in a statute is important for records managers when engaged in legislative research. Access legislation must be treated like any other type of legislation. For instance, under both acts every person" has a right of access. "Person' is not defined, but in the context of the acts and the Interpretation Act(4) it would include individuals, corporations, governments, and legal representatives. Since there is no residency requirement, any person regardless of legal status, residence, location or citizenship may gain access to municipal information in Alberta. The status of the application and purpose of the request are independent of the right of access under both statutes, with the exception of certain personal information. No conditions precedent needs to be satisfied before a request is made to a local government. The nature and content of the record in question will determine the right of access.

"Record," "document," and "information" are not defined in either the NMGA or the Interpretation Act. In access legislation, though, these terms are essentially interchangeable: they mean any form of data however recorded. Many define "record" in broad terms in order to encompass any record of information and includes, but is not limited to, examples of various types of documents. A local government in Alberta will have to provide access to recorded information only in its custody and control. The public will not have the right of access to information that does not exist. Where the information is stored in a computer program which the local government has the ability to use, it will be obligated under FOI to create a record.(5) Only British Columbia and Canada have similar provisions in their legislation.(6)

ACCESS TO INFORMATION

Under FOI, an applicant must provide to a local government a written request with enough detail to enable a local government employee to identify the record.(7) Sections 299 and 300 of NMGA allow an assessed person to gain access to the assessment record in the manner prescribed by the municipality. Otherwise, the access to information provisions do not require an applicant to submit a request in a particular fashion. The request could be made orally, possibly over the telephone. It is likely, though, that the mechanics of access will be detailed in the appropriate municipal by-law.

An indexed compilation that identifies the general classes or types of records in the custody or control of a local government, a subject index, and a description of the mandate and functions of each department of the local government is to be prepared by the Minister assigned responsibility by the Executive Council.(8) It would have been more logical for this document to have been prepared by each local government since recordkeeping, retention, and storage practices may vary from one local government to another. In the absence of sufficient staff and resources to prepare such a document for every local government in Alberta, it is likely that the Minister will rely upon those same local governments to research and prepare a compilation that will satisfy the FOI requirements.

In contrast, sections 214 to 218 of NMGA do not impose any obligation on a local government to produce a compilation or guide or any other document to assist an applicant. The matter of assistance to an applicant before and during a request is left to the discretion of each local government. Development of a guide could occur under the auspices of a by-law, a non-binding resolution of council, corporate policy, or a corporate administration manual produced without the benefit of a by-law. The cost associated with the staff and physical resources required to create a guide, with periodic updates, may very well be beyond the means of a council that faces a reduction of services and staff due to shrinking revenues. Then there is the old, well-worn approach: what the public doesn't know won't hurt them.

Under either statute, if an indexed compilation is not prepared or is of limited use, then access is inhibited. Access to a directory will be of little value if a local government is permitted not to disclose even in general terms the records that are exempt, or the retention or destruction policies. Access is further restricted if a destruction policy continues uninterrupted by a request for access. In this respect, FOI and NMGA are not "user friendly."

Section 6(1) of FOI and section 216 of NMGA provide that any record in the custody or under the control or in the possession of a local government is subject to the right of access. "Custody," "control," and "possession" are not defined in either act. Perhaps the goal is achieved regardless of the wording of these sections. A record in the custody of a local government is, more or less, under its control but not necessarily in its possession. A record may not be located in a file or box on municipal property, but may be located with a third party. Since the local government is legally assigned care of the record, it continues to be the custodian unless the record is provided to the third party under a trust or confidential relationship. The essential element of control is the ability to exercise authority over something. Again, a record does not have to be located on municipal property for a local government to exercise control over it. In contrast, possession indicates that a record as property is owned and held by a local government, not a third party. Both statutes are open to abuse and circumvention by a local government that decides to transfer any record to a third party. If it does not have possession of the record, then the local government does not have to provide it to an access applicant.

INFORMATION TO BE AVAILABLE

Section 81 of the FOI requires the Minister to publish an indexed directory listing all local governments and, in respect of each, setting out certain information including a general list of the records in the custody or control of each local government. Freedom of Information legislation could prove ineffective by a failure to provide a comprehensive indexing system. An inadequate index could be an effective, hidden barrier to access. However, the Information and Privacy Commissioner(9) has the authority to investigate complaints about the directories or ensure compliance with the Act.

A local government in Alberta is not required under the NMGA to publish an index or directory or guide to the records in its possession. Consequently, the statute creates a significant obstacle to access to information. Further, a by-law passed by council on the subject of access is not required to contain a mechanism, such as the Information Commissioner under FOI, to enable an applicant to seek redress when he is dissatisfied with how the civic bureaucracy has responded to his request. The only appeal found in the NMGA is in section 218. An appeal about a disclosure decision may be made, in writing, to council. Only three grounds of appeal are permitted:

(1) the released information was incomplete,

(2) the information has been withheld without any reason being stated,

and

(3) the reason for withholding the information is insufficient or wrong.

Council's decision on an appeal, according to subsection (4), is final.

The FOI permits a local government to refuse to acknowledge the existence of a record.(10) In this regard, Alberta is following the federal, Quebec and Ontario statutes. Although the NMGA does not specifically allow a local government to make such a response, the totality of the access provisions in that statute imply that a local government enjoys such an option. Alternatively, rather than refuse to acknowledge the existence of a record a local government could simply fail to respond. This would create, under section 62(1) of FOI, the right to request the matter be reviewed by the Information Commissioner. A failure to respond is not one of the enumerated grounds for appeal in section 218(2) of the NMGA, but may fall within the ground set out in section 218(1)(b). Council, then, would have to determine if a failure to reply is a withholding of information. Disclosure of the existence or non-existence of a particular record in some circumstances may be detrimental to the public interest that by virtue of the exemptions in section 217 is to be avoided.

ROLE OF THE COMMISSIONER

The cornerstone of Alberta's Freedom of Information Act is the authority of the Information and Privacy Commissioner. Based on the power to investigate, mediate or conduct an inquiry as set out in the act,(11) is the statutory authority of the Commissioner to overturn the decision of the head of a local government. If a local government fails or refuses to comply with the Commissioner's order, then the order may be filed with the Court of Queen's Bench of Alberta and thereafter enforced as a judgment or order of that Court.(12) Failure to comply with a filed order of the Commissioner could result in one or more of the councillors, senior administrators or civic staff being found in contempt of court, with the prospect of being fined or imprisoned to purge that contempt.(13) If he conducts an inquiry, the Commissioner may require to be produced and may examine any record in the custody or control of a local government despite the exemptions and individual privacy sections in the Freedom of Information Act.

Further, the Information Commissioner can overturn the head's exercise of discretion to refuse to disclose a record or part of a record.(14) Since most of the exemptions in FOI to the right of access are discretionary, this is a significant addition to the scope of the Commissioner's power. The public interest override in section 31 can be involved by the Commissioner thereby forcing the head of a local government to release a record despite certain mandatory exemptions. The relevant discretionary exemptions are blocked and the Commissioner is allowed to order disclosure. Cloaked with the powers of a commissioner conducting a public inquiry, the Information Commissioner will have the authority and immunity to compel the production of any record, document, paper or thing despite solicitor/client privilege, local government secrecy and Crown privilege.(15)

One of the important features of Alberta's FOI is the final result of an inquiry by the Information Commissioner. On completing an inquiry, he must issue a written order which may affect a decision by a head, relate to any other matter within the scope of the Act, and even specify the terms or conditions in which the order is to be executed. Unless an application for judicial review is brought within 30 days after the head is given a copy of the order, which automatically suspends the operation of the order, the public body must comply with it. Further, a copy of the Commissioner's order may be filed with a clerk of the Court of Queen's Bench of Alberta, following which it is enforceable as a judgment or order of that court.(16) A stubborn public body could be faced with court proceedings for a declaration, an injunction, damages, mandamus, certiorari or contempt. There is no appeal, the order of the Commissioner is final.(17) Failure to comply with an order made under section 68 is an offense which carries a penalty upon conviction of a fine up to $10,000.18

INFORMATION MANAGEMENT

Preparation and publication of a directory of all local governments and a listing of the general classes or types of records prepared by or in the custody or control of each is necessary under FOI.(19) The directory is to assist an applicant in the identification and location of the information he is seeking. The ability of a local government to list effectively the kinds of records it holds will depend on the nature of those records or its information management system. Inaccurate identification, description, classification and indexation will make records more difficult to assess, not only for the purpose of public access but also for the management of the business of that local government.

Establishment of an effective records management system in each local government is necessary if information management under FOI or the NMGA is to operate successfully. This is not a task to be left in the hands of provincial bureaucrats who would, among other things, approach the task from a different perspective and different resources. FOI does not extend the records management program that currently exists at the provincial level(20) to local governments, nor does the Act require them to implement such a program. In contrast, access to information sections in the NMGA implies a duty to create and implement such a system if a local government is to meet its duties under the Act. For example, the NMGA does not require the establishment of a public records committee which would be the local counterpart to the one that exists at the provincial level, which establishes retention and destruction schedules for all provincial departments. Yet, to enable a local government or its delegates to grant access or claim an exemption it is necessary to have a records management program guided by such a committee.

A more pragmatic reason to create a records management system is contained within section 566 of the NMGA. Willful destruction of information in the possession of a local government with the intent of evading a request for access is an offence. The best defense to such a charge is to be able to show an information management system that is comprehensive, documented, and periodically audited to illustrate that the records of the local government are retained and destroyed according to law. Otherwise, a finding of guilt could result in a fine as high as $10,000, or up to one year in prison, or both.

In contrast, under the Archives Act, the Provincial Archivist of New Brunswick is assigned a records management function in relation to government records, including those of municipalities.(21) In addition to his archival duties, the Provincial Archivist is responsible for the preparation of records retention schedules, the provision of storage facilities, the encouragement of provincial departments and municipalities to use modern records storage and classification systems to ensure the documentation and protection of local government records. On matters relating to the retention and disposal of public records, the Provincial Archivist is advised by a Public Records Committee.(22)

Quebec's Archives Act applies not only to provincial departments and agencies but also municipalities, municipal transport corporations, school boards and other local public bodies. A management policy applies to all active and semi-active documents, and each municipality has to establish and keep up-to-date a retention schedule for those documents. Final approval of municipal retention schedules has to be obtained from the Minister of Cultural Affairs.(23)

Retention and destruction of records are addressed in the Municipal Act of Manitoba. Council is required to provide for the permanent retention and presentation of specified municipal documents and records. Schedules to the statute establish retention schedules for various classes of records, upon the expiry of which those records could be destroyed by fire or shredding machine. Instead of destruction, those records could be deposited with the provincial archivist.(24)

Where Manitoba seeks to provide a comprehensive guide to the retention of local government records, Quebec and New Brunswick insert provincial officials into the administrative and legal affairs of a local government. Each approach is potentially dangerous for a municipality. Both have the potential to impose retention periods that go far beyond any retention schedule mandated by the administrative or legal values of municipal records. Whether the legislation will be amended from time to time to permit the retentions to be modified to reflect changes in legislative and judicial retention requirements is problematic at best. A further difficulty with each approach is the potential that a retention could be created by a small group of provincial bureaucrats whose perception of municipal needs or requirements is created and controlled by factors irrelevant to that municipality. Regardless of retention requirements found in a provincial statute, for example, a local government has to comply with any federal requirements of those same records.

Alberta's municipalities cannot underestimate the role of information systems in the access to information dynamic. Right of access will be hollow if information is inadvertently destroyed, lost or misplaced due to inadequate filing procedures. Existing municipal information retrieval systems will have to be evaluated to ensure that the subject matter of any request is scrutinized prior to the issuance of a response. To assist in the achievement of such an objective, each local government should give serious consideration to the establishment of a records management regime in a by-law passed under the NMGA. Further, each local government should have a records committee with authority to develop, implement, audit and modify a records management policy to manage efficiently the records produced or accumulated by a local government. The challenge for council and senior management will be to provide the financial, physical and human resources necessary to develop and maintain such a program in the face of financially difficult times.

Only if municipal records managers have a full grasp of the nature of the records they should have under their control will the primary objectives of access legislation be achieved. Minimum retention and retrieval standards are needed if records are to be available under FOI. Protection of personal information should force local governments to adopt minimum standards so they can know where such date exists, who is responsible for it, its form or medium, where it is located, and if access is restricted. The import of FOI is that a local government must file its records in a manner that facilitates retrieval and provide a filing list that is made available to the public.

PRIVACY

Privacy has not been the subject of legal analysis in Alberta. There are at least four areas of Alberta law that might have an impact in the field of privacy protection as it relates to the release by a local government of information concerning an individual: (1) action for breach of contract; (2) action for willful act causing harm and mental suffering; (3) action for breach of confidence; (4) statutory secrecy provisions. Neither "privacy" nor "right to privacy" are concepts that have achieved recognition or definition in the common law or statutes in Alberta. Consequently, an individual who feels his privacy has been invaded is severely limited in his legal remedies. Alberta does not recognize a tort of invasion of privacy; it does not have a privacy statute and lacks general data protection legislation. There are few restrictions in the NMGA on the collection, use or disclosure of personal information.

FREEDOM OF INFORMATION IN LOCAL GOVERNMENT

If we accept the argument that municipal institutions constitute the basis of our democratic institutions and educate our citizens in the ways of democracy, then access legislation can be of great importance at this level. Freedom of information is crucial if a function of local government is to ensure local political authority and control over services provided in a local area. Public knowledge of the considerations upon which government action is based is essential to the democratic process at the local level. The electorate must be able to go behind and beyond the decisions reached and be apprised of the advice given by civic servants if it is to make sound judgments on questions of policy, and if it is to intelligently select its representatives.

If the application of FOI to local governments is delayed, then council will have to enact an access bylaw under the NMGA if there is to be access to the vast collection of municipal records. If, for example, a by-law or resolution or corporate policy does not assign any group or collection of records to the municipal clerk under section 58(e) there may not be any control exercised over those records by any other civic official and the possibility of no public access. If a council does not act under the provisions of the NMGA, access to reports that go to members of council, budgets, financial forecasts, loan agreements, tender awards, contracts and investment records and every other type of financial record will be beyond the reach of any interested person under the NMGA or other provincial statute. Rather, the authority granted to council to destroy records together with council being the final level of appeal exposes it to the potential temptation of political interference in access to information process.

CONCLUSION

The next few years should be interesting ones in Alberta. Perhaps local governments will react positively to the changes initiated by access legislation. The lack of an effective advocate of freedom of information at the municipal level will probably inhibit the growth of access or the development of sound records management policies.

FOOTNOTES

1. 1993 Bill 18, 23rd Legislature, 2nd Sessions, 43 Elizabeth II.

2. 1993 Bill 91, 23rd Legislature, 2nd Session, 43 Elizabeth II.

3. R.S.A. 1980 c. 1-7 s. 10.

4. Ibid, s. 25(1)(p).

5. Freedom of Information and Protection of Privacy Act, (FOI) S.A. 1994 c. F-18.5 s. 9(2).

6. Access to Information and Protection of Privacy Act, S.B.C. 1991 s. 6(2); The Access to Information Act, R.S.C. 1985 c. A-1 s. 4(3).

7. Freedom Of Information Act s. 7(1)(2).

8. Ibid, s. 81.

9. Ibid, s. 51 (a) (i).

10. Ibid, s. 11 (2), 19(3)

11. mid, ss. 51, 54, 62, 67.

12. mid, ss. 67, 69(1).

13. Alberta Rules of Court RR 703, 704.

14. Freedom Of Information Act ss. 51(1)(a), 67(2)(b).

15. Freedom Of Information Act 54(3); Public Inquiries Act R.S.A. 1980 c. P-29.

16. Freedom Of Information Act, ss. 68, 69.

17. Ibid, s. 68.1.

18. Ibid, s. 85.

19. Ibid, s. 81.

20. Department of Public Works, Supply and Services Act, S.A. 1983 c. D-25.5 ss. 6,21; Alta. Reg. 373/83 s. 2.

21. S.N.B. 1977 c. A-11.1.

22. Ibid, ss. 5 & 6.

23. Archives Act R.S.Q. 1983 c. 38 ss. 2, 4 to 10, Schedule.

24. Municipal Act R.S.M. 1988 c. M225 s. 99.

AUTHOR: John C. Anderson is a Barrister and Solicitor with the City of Calgary Law Department where he specializes in litigation. A graduate of the University of Guelph (B.A. (Hons.) '75) and the University of Alberta (M.A.'77) he completed his law degree at Queen's University at Kingston, Ontario.

In addition to dealing with litigation matters, Mr. Anderson serves as general counsel to a large non-profit employees benefit society, and is the solicitor appointed to the records control committee of the City of Calgary. He is a member of ARMA, a telephone tutor in the area of administrative law with Athabasca University, and is engaged with the City Solicitor in the preparation of a course on local government law for the University.

Copyright Association of Records Managers and Administrators Inc. Oct 1995
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