It’s not Sexy, but Knowing this Might Save You from Becoming a Casualty of Municipal Politics

The Alberta Freedom of Information and Protection of Privacy Act


The Freedom of Information and Protection of Privacy Act (FOIP) provides the cornerstone of open, accessible, and accountable government for the people of Alberta. It is an incredible tool for transparency and good governance.


If you are a candidate or an incumbent in the 2021 Alberta municipal elections, once elected or re-elected, know this:


With FOIP, in most situations, mayors and councillors (members of council) are never off the record when it comes to municipal business (exceptions being an in-camera or constituency meeting). It is advised not to say, write, type, post, or text anything about municipal business that one is not prepared to speak to openly and publicly.


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A resident, stakeholder, media, or even another member of council, can request access to any records in custody or in the control of the municipality, including those stored on the premises and on municipal equipment (including phones, computers, etc.) or at a member of council’s house, place of work, or on their personal electronic devices. With some exceptions (personal and constituency records), and some potential redactions, municipalities are required to release these records as requested.


It is important for all members of council (new and experienced) to understand the far-reaching impacts of FOIP in their day-to-day interactions with the municipal corporation. FOIP applies to all records in the custody or in control of the municipality but does not apply to a personal record or a constituency record of a member of council.



 

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FOIP is divided into two parts, part one addresses access to records held by public bodies and part two deals with the rules concerning protection of the privacy of personal information about individuals that is held by public bodies.


There are 5 fundamental principles upon which FOIP is based:

  1. To allow a right of access to any person to the records in the custody or control of a public body, subject only to limited and specific exceptions;

  2. To control the manner in which a public body may collect personal information from individuals; to control the use that a public body may make of that information; and to control the disclosure by a public body of that information;

  3. To allow individuals a right of access to information about themselves which is held by a public body, subject only to limited and specific exceptions;

  4. To allow individuals the right to request corrections to information about themselves held by a public body; and

  5. To provide for independent review of decisions made by a public body under the legislation.


What is a Record?

FOIP defines a record as: notes (including post-it notes), images, audiovisual recordings, x-rays, books, documents, maps, drawings, photographs, letters, vouchers and papers and any other information that is written, photographed, recorded, or stored in any manner. This includes emails, text messages, social media accounts, and voicemails.


A record is in the custody of a municipality when a member of council or administration is in possession of it – hard copy or digital. A record is in the municipality’s control when the municipality has the authority to manage the record, including restricting, regulating, and administering its use, disclosure, and disposition. Some of the indicators that a record may be in the custody or under the control of the municipality are as follows:


The Record:

  • was created by an officer, employee, or member of the municipality

  • was created by a contractor for the municipality

  • is specified in a contract as being under the control of a municipality

  • is in the possession of the municipality

  • is closely integrated with other records of the municipality

  • relates to the municipality’s mandate and functions

The Municipality:

  • has the authority to regulate the record’s use and disposition

  • has relied upon the record to a substantial extent

As noted earlier, there are a number of exceptions within FOIP, including records deemed as personal, as belonging to a constituency, and other reasons as described below.


What is Considered a Personal Record?


A personal record is defined as:

  • Related to an official as a private individual rather than as a member of the local public body; and

  • Unrelated to the mandate and function of the local public body.

Examples of personal records:

  • Personal or family appointments or events, such as medical appointments, birthdays, vacations or financial transactions;

  • Related to a community organization or non-profit group to which the individual belongs on a personal basis not as a representative of the public body;

  • Related to a professional or similar organization to which the individual belongs or in which he or she holds office;

  • A commercial or private business enterprise in which the individual is employed, holds office or of which he or she is an owner, shareholder or partner;

  • Meetings that do not involve the business of the local public body;

  • E-mail or texts between the individual and others which does not deal with the business of the local public body;

  • Biographical and historical material about the individual which has not been made public;

  • Related to previous jobs or appointments;

  • Research, speeches, lecture notes and the like which are not related to the local public body.

Examples of records not considered personal:

  • Municipal correspondence, documents, etc. that a mayor or councillor has taken home or to any other location.

  • Texts, emails, social media communications, or letters written by a member of council that is related in any way to the business of the Municipality.

  • A record of an in-camera meeting prepared by a council member because staff were excluded from the meeting.


What are Constituency Records?


FOIP excludes a member of council’s constituency records from the scope of the Act and any associated disclosure requirements. A “constituency” is “the body of voters in a specified area who elect a representative member to a legislative body”.


The term constituency record may be understood to mean a record that deals with the political activities of a member of council, including election contributions, campaigning, and campaign issues.


Constituency records include records dealing with a member of council’s constituency or campaign office, those who may have worked on an election campaign and details about the campaign.


Note: Records relating to an election campaign are subject to other legislation, such as the Local Authorities Election Act, the School Act, or the Metis Settlements Act.


Exceptions of Municipal Disclosure of Records


While many records must and will be shared publicly by the municipality, there are also some mandatory exceptions, where records will not be disclosed, including:

  1. Commercial information of a third party, including information on a tax return (a third party being defined as someone other than the applicant or a public body);

  2. Personal information about a third party;

  3. law enforcement information, but only if federal law would make it an offence to release the information;

  4. Cabinet and Treasury Board confidences; and

  5. information subject to any type of legal privilege that relates to a person other than a public body

  6. There are also discretionary exceptions of disclosure. A record will not be disclosed, if the municipality deems that it:

Is harmful to:

  • Business interests of a third-party

  • Personal privacy

  • Individual or public safety

  • Law enforcement

  • Intergovernmental Relations

  • Economic and other interests of a public body

  • Conservation of heritage sites and endangered forms of life

Involves:

  • Confidential evaluations

  • Local public body confidences

  • Advice from officials

  • Testing procedures, tests, and audits

  • Privileged information

  • Information that is or will be available to the public (within 60 days)


To request access to records (that are not already publicly accessible), a FOIP application must be made, and applicable fees paid, to the municipality. Fees differ with each municipality and can be quite expensive depending on the request.


Greater details on records, and disclosure exceptions, can be found in reviewing FOIP. It is worth the read.

 

Strategic & Resilient Together Knows Municipal Legislation, Protocol, & Policy


If you need support during the municipal election or once elected, send us a message. Here are some examples of how we can help:

  • Campaign strategy and execution

  • Social media (Twitter, Facebook, Instagram, etc.)

  • Host and prepare you for online engagement sessions with the community – to discuss and learn about important community topics

  • Prepare speeches and backgrounders

  • Strategic & operational plans


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