As discussed previously, both the Freedom of Information and Protection of Privacy Act (“FIPPA”) and the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”) impose responsibility for an institution’s FOI program directly on the individual who is the “head” of such institution. However, 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 his or her powers or duties to an “officer or officers” of the institution or another institution.
But who counts as an “officer” of the institution? And how is an “officer” different from an “employee” of the institution, if at all?
For corporations, the term “officer” is familiar, and in the context of corporate law, it has a relatively clear definition. For example, Ontario’s Not-for-Profit Corporations Act, 2010 defines “officer” as someone appointed by the corporation’s board of directors, including: the chair of the board of directors, the vice-chair(s) of the board of directors, the president, a vice-president, the secretary, an assistant secretary, the treasurer, an assistant treasurer and the general manager of the corporation, and any other individual who performs functions for the corporation similar to those normally performed by one of these positions. Provincial and municipal institutions who are also non-profit corporations may be inclined to use the corporate definition of “officer” when interpreting FIPPA or MFIPPA. But there are many institutions subject to FIPPA or MFIPPA who are not corporations, and who may not have positions such as “chair of the board”, “president”, “vice-president”, “secretary” or “treasurer” that are appointed by a board of directors – so the “corporate” definition of “officer” isn’t workable for them. And, as we’ll see below, even for corporations, the traditional corporate definition of “officer” may not be such a good fit when comes to interpreting this term under FIPPA or MFIPPA, because there may be valid delegates who would not be covered by this definition.
Let’s now look at how FIPPA and MFIPPA (the “Acts”) use the word “officer” in other contexts besides the delegation clause.
The Acts seem to distinguish an “officer” from an “employee” of the institution; however, the exact meaning of “officer” is never made clear.
In some contexts, the Acts refer merely to an “employee” of the institution. For example, under the “economic and other interests of Ontario” disclosure exemption (FIPPA s.18 / MFIPPA s.11), a head may refuse to disclose a record that contains information obtained through research by an employee of an institution where the disclosure could reasonably be expected to deprive the employee of priority of publication. And in Section 65(7), FIPPA states that the Act applies to “an expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment”.
In other places, the Acts refer only to an “officer” of the institution – for example, FIPPA s. 13(2) directs that a head shall not refuse to disclose under the advice to government exemption “a report by a valuator, whether or not the valuator is an officer of the institution” nor “the reasons for a final decision, order or ruling of an officer of the institution made during or at the conclusion of the exercise of discretionary power conferred by or under an enactment or scheme administered by the institution…”.
Finally, in a few cases, the Acts will refer to both “officers or employees”. For example, FIPPA s.13(2)(l)(i) refers to a “letter addressed by an officer or employee of the institution”. And FIPPA s.21(4) and MFIPPA s.14(4) states that it is not an unjustified invasion of personal privacy to “disclose the classification, salary range and benefits, or employment responsibilities of an individual who is or was an officer or employee of an institution”.
The examples above seem to make it clear that under FIPPA and MFIPPA, being an “officer” of an institution is not synonymous with being an “employee” of an institution. But there’s no definition of “officer” in the Acts or in their regulations. To get more clarity on what an “officer” is in the context of FIPPA and MFIPPA, we’re left to look to Information and Privacy Commissioner of Ontario decisions which deal with delegations of authority by the head of an institution.
In the context of municipalities, there is a line of IPC decisions dealing with the definition of “officer” under MFIPPA. In Access Order M-813, Decided on July 31, 1996, the IPC adjudicator considered whether a Toronto city councillor was an “officer” of his municipality. The issue arose not in the context of a delegation of authority under MFIPPA s.49(1), but rather as a means of determining whether the councillor’s records were in the custody or control of the city; if the councillor were an officer of the city, then records held by the councillor would have been subject to disclosure. However, the IPC adjudicator determined that a city councillor was not an “officer” of the city. The adjudicator noted that certain positions are defined as “officers” under the Municipal Act itself: the Head of Council, which includes a Mayor, Chair, Reeve and Warden; the Chief Administrative Officer, sometimes known as the City Manager; the Clerk, Deputy Clerk and Acting Clerk; the Treasurer, Deputy Treasurer and Acting Treasurer; and collectors and auditors. Further, other “officers” of municipal corporations derive their authority from statutes other than the Municipal Act, for example, the Medical Officer Of Health (per the Health Protection and Promotion Act) and the Chief Building Official (per the Building Code Act). The IPC adjudicator found that in the municipal context, the term “officer” was generally interpreted to refer to a high ranking individual within the municipal civic service, who exercises management and administrative functions, and who derives his or her authority either from statute or from council.
In Privacy Complaint Report MC-020030-1 and also in Access Order MO-1403, IPC adjudicators faced a similar issue of determining whether city councillors were officers, and in both cases, the analysis above from Access Order M-813 was cited with approval.
Where does that leave us with regard to municipalities? It seems clear that IPC considers “officers” under the Municipal Act (now the Municipal Act, 2001) to also be “officers” under MFIPPA. Therefore, a delegation under MFIPPA s.49(1) to, say, the City Clerk, would likely be unassailable. But would a delegation to an employee of the municipality who was not an “officer” under the Municipal Act, 2001 definition be valid? For example, a delegation to a full-time FOI Coordinator? There does not yet appear to be any decision directly on point, but if the delegation to the employee came directly from council itself, this would seem to bolster the validity of such delegation, as the FOI Coordinator in that case would in fact “derive his or her authority from council”.
In terms of institutions subject to FIPPA, there is one relevant IPC decision which seems to grant institutions great leeway. Access Order PO-2536 was decided on December 27, 2006 by now-commissioner Brian Beamish. In considering whether the head could delegate his or her powers to an FOI Coordinator (referred to as a “FOIC”), he noted:
“The FOIC is an administrative position that is not defined in or created by [FIPPA]. Although it is possible for a head to delegate decision making powers to a FOIC, it is equally possible for the head to delegate those powers to any other employee. Without that delegation of authority, the FOIC does not have any decision making powers. There is no evidence before me that would suggest that the FOIC had delegated authority in this appeal. Indeed, the only evidence before me is that the authority under [FIPPA] to make the decision in this appeal was given initially to the original delegated individual, and then to the Secretary.” [emphasis added]
This decision clearly provides support for heads of institutions who delegate their powers and duties under FIPPA directly to an FOI Coordinator. However, this “any other employee” language seems potentially inconsistent with the language of of FIPPA s. 62(1) itself (and also MFIPPA s. 49(1)) which says the delegation is to be to an “officer or officers” rather than to “one or more officers or employees”.
How might the IPC decide the issue if a delegation of authority came up for a challenge? After all, for many institutions, there is no clear definition of an “officer”. At provincial ministries, for example, in some cases the Minister and the Deputy Minister may be the only appointed positions, yet the Minister and Deputy Minister can’t be expected to make all access decisions personally; further delegation is necessary as a matter of practicality, and prohibiting such further delegation can’t be what the legislature reasonably intended.
If a delegation by a head to a mere employee was ever challenged, an institution might defend the validity of such delegation by emphasizing the “high rank” of the employee and the decision-making aspects of their role; this might be sufficient to meet the definition of “officer” under FIPPA or even MFIPPA. A dedicated FOI Coordinator, or any employee who manages an institution’s FOI program, might fit the bill in this regard; in contrast, delegation to a low-level employee whose role did not generally involve making decisions with respect to the institution might be more vulnerable to attack on the basis that the delegation was not made to an “officer”. (Using this line of reasoning, giving a summer intern final say in what documents are released and withheld would be invalid.) This line of defence could also work for delegations by municipal institutions under s.49(1) of MFIPPA, since there seems to be no obvious reason to draw a distinction between how “officer” is defined under FIPPA and MFIPPA; however, the line of IPC decisions which deal with the definition of an “officer” under MFIPPA may serve as an additional hurdle.
Better yet, FIPPA and MFIPPA could be updated to resolve the ambiguity. At the federal level, s.73 of the Access To Information Act states that “The head of a government institution may, by order, designate one or more officers or employees of that institution to exercise or perform any of the powers, duties or functions of the head of the institution under this Act that are specified in the order.” (emphasis added). If s.62(1) of FIPPA and s.49(1) MFIPPA included similar language explicitly allowing the head to delegate his or her powers and duties to officers or employees of the institution, then all of the uncertainty could be avoided, with little to no downside.
Until the ambiguity is resolved, for institutions who want to play it as safe as possible, the safest delegates under FIPPA and MFIPPA are individuals who meet the definition of “officer” under the institution’s governing legislation, e.g., the Municipal Act, 2001 or the Not-for-Profit Corporations Act, 2010. Of course, many institutions do not have governing legislation that will provide a clear definition of who is an “officer” of the institution. But regardless of whether an institution has governing legislation which sets out a precise definition of “officer”, it would seem there are good arguments that would support the delegation of a head’s powers and duties to a “high-ranking” and “decision-making” employee of the institution who is not necessarily also an “officer” under the institution’s governing legislation. Certainly, Access Order PO-2536 by now-commissioner Brian Beamish would seem to support delegation by a head directly to an FOI Coordinator, or even “to any other employee” — this decision should be of great assistance to any institution whose delegation to an employee is challenged.
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Links to Resources:
Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31
Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56
Municipal Act, 2001 https://www.ontario.ca/laws/statute/01m25
Not-for-Profit Corporations Act, 2010 https://www.ontario.ca/laws/statute/10n15
Information and Privacy Commissioner of Ontario (IPCO) Decisions https://decisions.ipc.on.ca/ipc-cipvp/en/nav.do