Helping Municipal Councillors Understand FOIP

The Freedom of Information and Protection of Privacy Act (FOIP) provides individuals with the right to request access to information in the custody or control of public bodies while providing public bodies with a privacy framework for collecting, using and disclosing personal information.

Alberta’s municipalities are public bodies under FOIP, and councillors when conducting council business are subject to FOIP.

There are many aspects to FOIP, and the following provides an overview for councillors.

The Basics

FOIP requires municipalities to designate a person or group of persons as the head of the municipality (section 95(a)). The “head” is the person who makes or is responsible for the municipality’s access to information and privacy decisions.

The Chief Administrative Officer (CAO) is the head in most municipalities. In larger centres, the CAO often delegates that function to the municipality’s clerk.

In addition to the head, municipalities delegate a FOIP Coordinator. The FOIP Coordinator is the person responsible for most of the day-to-day access and privacy responsibilities, such as responding to access to information requests (often known as FOIP requests).

Depending on the size of the municipality, the head and the FOIP Coordinator may be the same person, the FOIP Coordinator may do the role “off the side of their desk” as part of their job responsibilities, or the FOIP Coordinator is solely responsible for handling access and privacy matters (mainly in the largest municipalities).

Constituency vs. Municipality Records

As noted above, FOIP applies to elected councillors when conducting council business. Records related to council business include commission or board documents, budget documents or presentations, reports, council agenda packages, emails about council business and so on.

FOIP does not apply to a personal record or constituency record of a municipal councillor. Personal records include private correspondence, election campaign records and communication with ratepayers that do not become part of the municipality’s records.

If a ratepayer corresponds with the municipality, and not solely with their councillor as a ratepayer of their ward, it is a record subject to FOIP. For example, an email sent to the municipality, and the councillor is copied, is a record subject to FOIP. An email sent to a councillor only about a local ward issue is not subject to FOIP unless it is forwarded within the municipality for action.

In Camera Meetings

One of the most common questions from councils relates to going in camera. The Municipal Government Act (MGA) says that councils and their committees must conduct their meetings in public, except in specified circumstances (section 197).

Councils and their committees may close all or part of their meetings if the matter to be discussed is information that would be captured within one of the FOIP exceptions to disclosure. These exceptions include disclosure harmful to business interests of a third party, disclosure harmful to personal privacy and so on.

Importantly, if a FOIP exception is cited as the reason for going in camera, no decision that requires a bylaw or resolution can be made in camera.

Conversely, a municipal planning commission, subdivision authority, development authority, or subdivision and development appeal board may discuss and make decisions in meetings closed to the public (section 197(2.1) of MGA).

Councils and committees often consult FOIP Coordinators to help determine if a matter slated for discussion falls under one of the FOIP exceptions before deciding to go in camera.  However, unless the matter deals with personal information, FOIP does not require a council to go in camera even if an exception applies.

One of the exceptions to disclosure in FOIP deals with not releasing information if it was discussed in camera (section 23(1)(b)). However, section 23 cannot be used as an exception to disclosure once a municipality addresses an issue publicly.

Use of Personal Email Accounts, Text Messaging and Instant Messaging

When conducting official business, municipal councils should use devices or accounts assigned to them as part of official duties. Using personal email accounts, text messaging or instant messaging creates a number of record keeping and FOIP compliance challenges.

For example, a text message discussing official municipal business is a record under FOIP and a councillor may be required to produce the record in response to an access request. It does not matter who owns the device on which the record is located.

Determining the purpose of the record, who created it and whether it relates to the municipality’s mandate or functions enables understanding whether an email, text message or instant message is a record subject to FOIP.

A person who wilfully conceals any record, or directs another person to do so, with the intent to evade a request for access to the record is committing an offence under FOIP (section 92(1)(e)). A person also commits an offence if they wilfully destroy any record, or directs another person to do so, with the intent to evade a request for access to the record (section 92(1)(f)).

Municipality policies and training may also inform how you must conduct municipality business electronically.

To err on the side of caution, ensure personal and municipality email accounts are separated on devices, such as smartphones or computers, or use separate devices to properly document municipality business and help record keeping.

The OIPC has 8 Tips for Managing Emails to assist with record keeping.

Personal Information

As a councillor, you have a duty to protect the personal information of other people.

Personal information may be shared if it is necessary to conduct councillor or council duties. However, be mindful of sharing personal information only with those who need to know the information and limit the use or disclosure of the information only to the extent necessary to accomplish the task. (Order F2018-72 provides an example of where sharing personal information was necessary to perform the duties of a public body employee.)

FOIP does not require a councillor to protect other types of information, such as commercial or financial information, but there may be contractual or other obligations that require a councillor to do so.

This document is not intended as, nor is it a substitute for, legal advice, and is not binding on the Information and Privacy Commissioner of Alberta. Responsibility for compliance with the law remains with each public body.  All examples used are provided as illustrations.

The official versions of the Freedom of Information and Protection of Privacy Act, Municipal Government Act and associated regulations should be consulted for the exact wording and for all purposes of interpreting and applying the legislation.  The Acts are available from Alberta Queen’s Printer.

November 2021