On June 5, 2018, the Office of the Information and Privacy Commissioner (OIPC) released Review Report 298-2017 which found that the university improperly applied certain exemptions in its response to an access to information request and recommended that the university release the majority of the record in question.
The record in question was a transcript of a meeting hosted by a faculty member and involving other faculty and staff at the university as well as industry and government representatives to discuss research management and communications. The university withheld the majority of the transcript on the basis that it contained the personal information of non-university employees, as well as advice, proposals, recommendations, analysis or policy options developed by or for the university and consultations and deliberations involving officers or employees of the university. The exemption for personal information is mandatory pursuant to section 28(1) of The Local Authority Freedom of Information and Protection of Privacy Act, and the exemption for advice, proposals, recommendations, analysis, policy options, consultations and deliberations is permitted pursuant to sections 16(1)(a) and 16(1)(b) of the Act. These exemptions are intended to allow for candor during the policy-making process and to permit public bodies to consider options and act without constant public scrutiny (see the IPC Guide to Exemptions).
The university did not agree to comply with the recommendations on the basis that the interpretation and application of the Act was unreasonable and the review lacked procedural fairness, and in order to protect the principles involved including academic freedom. Please find the university's submissions below:
On June 4, 2018, the Office of the Information and Privacy Commissioner released Investigation Report 309-2017. A clerical employee of the College of Medicine improperly used their access to a provincial health record system to access health records without a need to know.
“The College of Medicine is working with the Saskatchewan Health Authority and eHealth to implement operational and administrative changes, as recommended by the Saskatchewan Information and Privacy Commissioner, to ensure the protection of private information. We are currently providing privacy training to all administrative employees in the college’s clinical departments.”
Chief Operating Officer
College of Medicine
In a request for review before the Office of the Information and Privacy Commissioner, the Univeristy had refused to disclose to the Commissioner documents over which it had claimed solicitor-client privilege. The University, rather, provided affidavit evidence that the documents were subject to solicitor-client privilege. The Commissioner was unsatisfied and ordered the production of the documents. This was appealed by the University. On May 16, 2018, the Court of Appeal released its decision in University of Saskatchewan v. Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII). In it, the Court found that The Local Authority Freedom of Information and Protection of Privacy Act empowered the Commissioner to require the production of such documents, but that the statutory authority to abrogate solicitor-client privilege must be exercised so as to interfere with the privilege only to the extent absolutely necessary. The Court found the Commissioner could have taken other measures in conducting the review, short of demanding the production of documents. The principle of solicitor-client privilege is fundamental to our justice system, and this ruling is important in reaffirming that and bringing clarity to the interpretation and application of the Act.
From the Office of the Information and Privacy Commissioner:
The government of Saskatchewan has proclaimed Bill No. 30, An Act to amend The Freedom of Information and Protection of Privacy Act and Bill No. 31, An Act to amend The Local Authority Freedom of Information and Protection of Privacy Act effective January 1, 2018. My office made proposals for the amendments of these Acts in June 2015. I am most pleased these amendments were passed by the Legislative Assembly in May 2017 and now proclaimed.
The highlights of the amendments to both Acts are:
- Obligations of government institutions and local authorities to provide breach notification to affected individuals if it is believed the incident creates a real risk of significant harm;
- The Duty to Protect is now explicit for both government institutions and local authorities;
- The Duty to Assist those requesting information is now provided for in the legislation;
- Police services are now a local authority for purposes of the legislation;
- There is now an obligation of government institutions and local authorities to enter into written agreements with information management service providers (IMSP);
- MLAs and Ministers’ offices are obliged to protect personal information in accordance with the legislation;
- The manner of access to records includes giving access in electronic form;
- The offence provisions have been updated and expanded;
- Government institutions and local authorities must take reasonable steps to post manuals, policies, guidelines and procedures to its websites; and
- Categories of records are to be established that can be provided to the public without an application.
In addition, the Regulations to both Acts have been amended. Some highlights of the Regulation amendments are:
- Generally now fees do not have to be charged if under $100 or if the records involve the applicant’s personal information;
- If records are provided to an applicant via a portable storage device (PSD), the cost of the electronic copies is the price of the PSD;
- Consent requirements are expanded; and
- Clarification is provided on what elements must be included in written agreements with IMSPs.
The amendments to the Acts and the Regulations are the most significent amendments to this legislation since its introduction in 1992 and 1993.
My office will be working on updating its resources on its website to reflect the changes that are in the amendments.