Get your head straight – what is the role of your institution’s head?

49.97.70

Every institution to which Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) or its Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) applies has its own function.  I’ve set out a few examples below:

Institution Function
Legislative Assembly of Ontario To represent Ontarians and their constituencies; to debate and pass legislation; to hold the government to account; and to approve government spending.
Ministry of Labour Works to prevent workplace injuries and illnesses, promotes and enforces employment standards, and helps settle workplace disputes and collective agreements in Ontario.
London Health Sciences Centre (LHSC) One of Canada’s largest acute-care teaching hospitals; provides patient care, teaching and research.
Alcohol and Gaming Commission of Ontario Responsible for regulating Ontario’s alcohol, gaming and horse racing sectors and cannabis retail stores.
TORONTO 2015

Organizing Committee (now disbanded)

Planning, managing and delivering the TORONTO 2015 Pan American / Parapan American Games.
City of Ottawa

Other municipalities under the Municipal Act, 2001

Responsible as local governments with a broad range of powers, including the power to deliver services and to administer and organize their affairs.

As you can see from the examples above, the functions of Ontario’s institutions are wide-ranging.  And in every case, each function is intended to serve the public interest.

FIPPA and MFIPPA (which I’ll often refer to as the “Acts”) create additional functions which Ontario’s provincial and municipal institutions must provide.  Likely of greatest interest to my readers are the obligations (set out mostly in sections 10 to 36 of FIPPA and in sections 4 to 25 of MFIPPA) to implement a Freedom Of Information program, or, as it is described in the Acts, to provide every person with access to the records of the institution.  Other functions imposed by FIPPA and MFIPPA include: granting individuals’ access to their own personal information and the ability to correct such information when it is erroneous (FIPPA s. 47 / MFIPPA s. 36), the obligation to make manuals, directives or guidelines prepared by the institution available to the public on the internet or in a reading room (FIPPA only, s. 33), and the obligation to produce an Annual Report setting out statistics such as the number of access requests received, the number of such requests refused, and the fees collected by the institution under the Acts (FIPPA s. 34 / MFIPPA s. 25).  The Acts also impose restrictions and requirements regarding the collection, use and disclosure of personal information (FIPPA ss. 37 to 49 / MFIPPA ss. 27 to 38) including the obligation to maintain a public index of all personal information banks in the custody or control of the institution.

FIPPA and MFIPPA were enacted with the aim of imposing these obligations on Ontario’s numerous and varied public institutions.  But rather than impose the responsibility to provide an FOI program on the institution as a whole, FIPPA generally places the responsibility on a specific individual at each institution: the “head” of the institution.  FIPPA takes the approach of naming a specific responsible individual to in order to create a system of accountability and to ensure that decisions around access to information and the protection of personal information are made with due care.  MFIPPA similarly avoids placing the obligation on the institution as whole, but instead allows institutions to name their own head, as detailed further below.

In section 2(1), FIPPA defines the head of each institution to which it applies as follows:

in the case of the Assembly, the Speaker;

in the case of a ministry, the minister of the Crown who presides over the ministry,

in the case of a public hospital, the chair of the board of the hospital,

in the case of a private hospital, the superintendent,

in the case of a community health facility, the chair of the board, [pending proclamation]

in the case of the University of Ottawa Heart Institute, the Chair of the board, and

in the case of any other institution, the person designated as head of that institution in the regulations;

In addition, Regulation 460 under FIPPA provides a table of approximately 180 institutions and sets out the head of each institution listed.

In contrast, MFIPPA allows institutions to which it applies to designate an appropriate head for themselves.  MFIPPA s. 3(1) states that the council of a municipality may by by-law designate from among themselves an individual or committee of the council to act as the head of the municipality under MFIPPA. Similarly, for institutions other than municipalities to which MFIPPA applies, MFIPPA s. 3(2) states that the members of the board, commission or other body may designate in writing from among themselves an individual or a committee of the body to act as head of the institution.  In either case, if no such by-law or written designation is made, the entire municipal council (for municipalities) or all of the members of the board, commission or other body (for non-municipal institutions) become the head of the institution.

In designating a “head” at each institution, the aim of FIPPA appears to be to identify the individual who is in a position of sufficient authority to ensure that the entire institution complies with the obligations imposed by the Act.  With the designation of a “head” in place, an institution’s decision to comply with its disclosure obligations under FIPPA cannot be “overruled” – the obligation to comply lies with the most senior person at each institution.

Similarly, MFIPPA puts the obligation of the “head” on the highest body at each municipal institution.  MFIPPA then permits such institutions to identify a specific individual as “head” if their council or board can agree.  (In practice, municipal councils frequently appoint their mayor or city clerk as the “head” of their FOI program.)

Let’s go over our table of examples from earlier and look at who the head is at each institution:

Institution Head Reference
Legislative Assembly of Ontario Speaker of the Assembly FIPPA s.2(1)
Ministry of Labour Minister of Labour FIPPA s.2(1)
London Health Sciences Centre (LHSC) Chair of the LHSC Board of Directors FIPPA s.2(1)
Alcohol and Gaming Commission of Ontario (AGCO) Chief Executive Officer of AGCO FIPPA s.2(1) and FIPPA Reg 460
TORONTO 2015

Organizing Committee (now disbanded)

Chair of the TORONTO 2015 Organizing Committee Board of Directors FIPPA s.2(1) and FIPPA Reg 460
City of Ottawa

Other municipalities under the Municipal Act, 2001

The Mayor of the City of Ottawa

Varies for other municipalities

MFIPPA s.3 and any designations made by by-law

The examples above make it clear that the “head” of an institution under FIPPA or MFIPPA is generally the individual with the greatest authority over the institution.  Most likely, the reason the word “head” was used in FIPPA and MFIPPA is that there is no other title that better captures the intended meaning – given the wide variety of institutions to which FIPPA and MFIPPA apply, and the variety of ways such institutions may be organized, the “head” of an institution may have the title of “Minister”, “Chair”, “CEO”, “Mayor” or “Councillor” depending on the nature of the institution.

In practice, at many institutions, the head is not closely involved with the day-to-day work of responding to access requests and making disclosure decisions.  This is because both FIPPA s. 62(1) and MFIPPA s. 49(1) permit the head of an institution to delegate in writing their powers or duties under the Acts to an officer or officers of the institution, or even to another institution.  The person to whom such powers and duties are delegated is often referred to as the “delegated head” of the institution.  This power to delegate is employed frequently; for example, municipal heads frequently delegate their powers and duties under MFIPPA to the city clerk.  The result is that at many institutions FOI Coordinators rarely communicate with the actual head of their institution as designated under FIPPA or MFIPPA; instead, they are likely to work more closely with the delegated head of their institution.

I encourage you to refer this article to a colleague, and to subscribe to the FOI Assist blog.  To subscribe, simply enter your email address at the bottom of the page then click the follow button.

Links to Resources:

Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31

Freedom of Information and Protection of Privacy Act, R.R.O. 1990, REGULATION 460 (GENERAL) https://www.ontario.ca/laws/statute/90f31

Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s