The “Other Acts” Exclusion

Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) and its Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) provide members of the public with a general right of access to government information, subject to certain exclusions and exemptions. 

FIPPA and MFIPPA subject all of the records in the custody or under the control of an institution to disclosure upon request unless such record is exempt under FIPPA/MFIPPA or excluded from the application of FIPPA/MFIPPA.

FIPPA and MFIPPA themselves set out a number of exemptions and exclusions that may apply to a request for information. (For a list of exemptions and exclusions, and an explanation of the difference, see Exemptions vs. Exclusions: What is the difference?)

FIPPA and MFIPPA also contemplate that other legisiation may exclude records from the general right of access. This is known as the “Other Acts” exclusion.

In FIPPA, the “Other Acts” exclusion is set out as s.67(1):

67 (1) This Act prevails over a confidentiality provision in any other Act unless subsection (2) or the other Act specifically provides otherwise. 

And in MFIPPA, it is set out in a.53(1):

53 (1) This Act prevails over a confidentiality provision in any other Act unless the other Act or this Act specifically provides otherwise.

This wording overrides any confidentiality or non-disclosure provision in any other legislation, unless:

  • FIPPA or MFIPPA itself expressly defers to such other legislation, or
  • such other legislation specifically states that it takes precedence over FIPPA and/or MFIPPA.

Which Acts Override FIPPA and/or MFIPPA?

Freedom of Information professionals should be aware of any exclusions in other legislation that may apply to access requests received by their institution.

PHIPA s.8(1)

For institutions which have custody or control of health information, the most important such exclusion is found in s.8(1) of the Personal Health Information Protection Act, 2004 (PHIPA):

8 (1) Subject to subsection (2), the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act do not apply to personal health information in the custody or under the control of a health information custodian unless this Act specifies otherwise.

PHIPA contains its own access scheme which provides the public with a right of access or correction of their own personal health information without submitting an access request through FIPPA or MFIPPA. (See Part V of PHIPA for more details on this process.) The point of PHIPA s.8(1) is to exclude such records from FIPPA and MFIPPA to give effect to PHIPA’s own access process.

Note that under PHIPA s.8(4), members of the public can still request and receive “record of personal health information” under FIPPA and MFIPPA; however, in that case the instituition is expected to sever any personal health information from such record prior to its disclosure. (Presumably, the purpose of this section is to provide a right of access to the public to the portions of a “record of personal health information” that may not actually contain personal health information.)

“Other Acts” as listed in FIPPA

FIPPA s.67(2) sets out a number of sections of other Acts which exclude records from the general right of access provided by FIPPA:

Subsection 53 (1) of the Assessment Act.

Excludes certain information acquired in the process of a property asessment.

Subsections 87 (8), (9) and (10), 98 (9) and (10), 130 (6) and 163 (6) and section 227 of the Child, Youth and Family Services Act, 2017.

Excludes certain information relating to child, youth and family Services hearings, assessments, and information obtained via court-ordered access to records.

Section 68 of the Colleges Collective Bargaining Act, 2008.

Excludes records relating to membership in an employee organization.

Section 12 of the Commodity Futures Act.

Excludes records of investigations, examinations, orders, and names and testimony of witnesses under the Commodity Futures Act.

Subsection 137 (2) of the Courts of Justice Act.

Excludes records sealed by court order.

Section 20.8 of the Financial Services Regulatory Authority of Ontario Act, 2016.

Excludes any information or record that may reasonably be expected to reveal the identity of a whistle-blower.

Subsection 119 (1) of the Labour Relations Act, 1995.

Excludes the records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Ontario Labour Relations Board.

Sections 40 and 42 of the Legal Aid Services Act, 2020.

Excludes any information or material furnished to or received by a member of the board or an officer or employee of Legal Aid Ontario or a service provider in the exercise or performance of the person’s powers, functions or duties under the Legal Aid Services Act, 2020 or in the provision of legal aid services.

Also states that “all communications between an individual receiving or requesting to receive legal aid services and [Legal Aid Ontario], an officer or employee of [Legal Aid Ontario] or a service provider are deemed to be privileged in the same manner and to the same extent as if the communications had been between the individual and a solicitor under a solicitor-client relationship.”

Section 40.1 of the Occupational Health and Safety Act.

Excludes information obtained by an employee in the Ministry of Labour from a person acting under the authority of the Hazardous Materials Information Review Act (Canada), in applicable circumstances.

Subsection 32 (4) of the Pay Equity Act.

Allows a group of employees before the Hearings Tribunal or the Pay Equity Office to remain anonymous and act under the name of a representative.

Sections 16 and 17 of the Securities Act.

Excludes disclosure of Investigation Orders and Financial Examination Orders, in applicable circumstances.

Subsection 4 (2) of the Statistics Act.

Excludes disclosure of answers to questionnaires under the Statistics Act.

Subsection 28 (2) of the Vital Statistics Act

Excludes disclosure of records of certain changes in birth registration / adoption records.

“Other Acts” as listed in MFIPPA

MFIPPA s.53(2) also sets out a number of sections of other Acts which exclude records from the general right of access provided by MFIPPA:

Subsection 88 (6) of the Municipal Elections Act, 1996.

Excludes examination of the contents of ballot boxes and of certain documents relating to municipal elections.

Subsection 53 (1) of the Assessment Act.

Excludes certain information acquired in the process of a property asessment.

“Other Acts” not listed in FIPPA or MFIPPA

There are cases where provincial legislation in Ontario explicitly overrides the access right in FIPPA and/or MFIPPA on its own, including:

Protecting a Sustainable Public Sector for Future Generations Act, 2019

Subsections 25(4), (5) and (6) exclude compensation and bargaining information of certain government employers obtained by a Management Board of Cabinet directive to be held in confidence under the Act.

Missing Persons Act, 2018

Subsections 7(4), (5) and (6) prohibit the disclosure of a missing person’s personal information, including the missing person’s location, to facilitate contact between the missing person and the spouse of the missing person or a relative, friend or acquaintance of the missing person except with the consent of the missing person, (despite clause 42(1)(i) of FIPPA or clause 32(i) of MFIPPA).

Other Legislation

The list of legislation above is not intended to be exhaustive but rather to provide examples of other legislation that do explicitly override the access right set out in FIPPA and MFIPPA. The principle to keep in mind if you do come across legislation that sets out an obligation of confidentiality or non-disclosure is: does such legislation also explicitly override the right of access provided in FIPPA and/or MFIPPA? Of course, if you are unsure how to proceed in the context of apparently conflicting legislation, at that point, seeking legal advice is likely an appropriate course of action.

Processing “Other Acts” Exclusions

The Ontario Information and Privacy Commissioner’s Year-End Statistical Annual Report considers all applications of “Other Acts” as falling under s.67 of FIPPA or s.53 of MFIPPA (as applicable) except for applications of s.8(1) of PHIPA, which are counted separately in the report. (See Year-End Statistical Reporting doesn’t have to be scary for more information.)

In indexes of records and decision letters, it likely makes sense to cite either s.67 of FIPPA or s.53 of MFIPPA as the basis of the exclusion, and then provide more details of the specific “Other Act” in the comment section in order to justify the application of the exemption. That said, for applications of s.8(1) of PHIPA, you may wish to simply cite PHIPA directly to simplify your year-end statistical reporting process.

Conclusions

I hope this article has helped you to understand whether exclusions found in other acts may be applicable to the types of access requests your institution is likely to receive. You should also now have a better idea of what is required before a confidentiality or non-disclosure provision in another act can exclude records from the general right of access set out in FIPPA and MFIPPA.

Are you aware of any additional “Other Act” exclusions that are relevant to your institution? Please let me know, either by contacting me directly, or by adding your example as a comment to this article. I would love to hear from you.

Published by Justin Petrillo

I have created the FOI Assist™ software to help Ontario’s provincial and municipal government institutions of all sizes track and respond to Freedom of Information (FOI) requests. For most of my career I have been a lawyer, advising clients on commercial, intellectual property and FOI/privacy issues. From 2013 to 2015, I managed the FOI program for the Toronto 2015 Pan/Parapan Am Games Organizing Committee while serving as Legal Counsel to the Games. Prior to becoming a lawyer, I obtained a computer science degree and worked as a software developer at several well-known technology companies.

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