Section 3 - Scope of this Act
Last updated on April 27, 2016Summary
Section 3 of the Act defines the records that are covered by the Act as those in the custody or under the control of a public body. It also lists the types of records that are not covered by the Act.
Subject to section 3(3), records in the custody or under the control of officers of the Legislature, their employees and, in relation to their service providers, the employees and associates of those service providers, are excluded from the scope of the Act when these records relate to the exercise of the Officer of the Legislature's function under an Act. However, privacy protections, notice provisions and whistle-blower provisions do apply to the Offices of the Legislature.
The Act does not limit the information available by law to a party to a proceeding.
Section Reference
Section 3 of the Freedom of Information and Protection of Privacy Act
3 (1) This Act applies to all records in the custody or under the control of a public body, including court administration records, but does not apply to the following:
(a) a record in a court file, a record of a judge of the Court of Appeal, Supreme Court or Provincial Court, a record of a master of the Supreme Court, a record of a justice of the peace, a judicial administration record or a record relating to support services provided to the judges of those courts;
(b) a personal note, communication or draft decision of a person who is acting in a judicial or quasi judicial capacity;
(c) subject to subsection (3), a record that is created by or for, or is in the custody of an officer of the Legislature and that relates to the exercise of that officer’s functions under an Act;
(d) a record of a question that is to be used on an examination or test;
(e) a record containing teaching materials or research information of employees of a post-secondary educational body;
(f) material placed in the archives of the government of British Columbia by or for a person or agency other than a public body;
(g) material placed in the archives of a public body by or for a person or agency other than a public body;
(h) a record relating to a prosecution if all proceedings in respect of the prosecution have not been completed;
(i) a record of an elected official of a local public body that is not in the custody or control of the local public body.
(2) This Act does not limit the information available by law to a party to a proceeding.
(3) The following sections apply to officers of the Legislature, their employees and, in relation to their service providers, the employees and associates of those service providers, as if the officers and their offices were public bodies:
(a) section 30 (protection of personal information);
(b) section 30.1 (storage and access must be in Canada);
(c) section 30.2 (obligation to report foreign demand for disclosure);
(d) section 30.3 (whistle-blower protection);
(e) section 30.4 (unauthorized disclosure prohibited);
(e.1) section 30.5 (notification of unauthorized disclosure); (added May 2008)
(f) section 33 (disclosure of personal information);
(g) section 33.1 (disclosure inside or outside Canada);
(h) section 33.2 (disclosure inside Canada only);
(i) section 74.1 (privacy protection offences).
Policy
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All records in the custody or control of a public body are within the scope of the Act unless otherwise specified in section 3.
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Public bodies shall notify an applicant in writing if the records requested by the applicant are outside the scope of the Act. Public bodies shall, in the same response, also notify the applicant of their right to request a review of the public body’s decision before the Information and Privacy Commissioner.
Procedure
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During the Preliminary Examination of the requested records a determination is made as to whether the records requested are within the scope of the Act.
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If it is determined that the records requested are outside the scope of the Act, the template below is an example of how to notify the applicant of the reasons why the record has been deemed to be outside the scope of the Act, and their right to request a review of the public body’s decision from the Information and Privacy Commissioner.
Interpretation
Interpretation Note 1 (Section 3(1)):
Cabinet Ministers and Members of the Legislative Assembly
The definition of "public body" excludes the office of a person who is a member of the Legislative Assembly (MLA).
Therefore, the Act does not apply to the records of MLA's including MLA's who are Cabinet ministers unless they are in the custody or under the control of the public body. Private or political records of an MLA that relate to their functions as an MLA will generally not be within the custody or control of a public body.
Private or political records of MLA's include:
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Constituency records: these records deal with the establishment and administration of the MLA's constituency association. These are political records that relate to the non-governmental duties and functions that MLA's perform in relation to their constituencies.
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Records related to the Office of an MLA: these records deal with the duties and functions of the MLA as the representative of his or her constituents and are excluded because they fall within the legislative realm and document the function and activities of an MLA. Records of Cabinet Ministers that relate to their MLA functions, rather than their Ministerial functions, are not normally in the custody or under the control of their Ministry. A letter written by an MLA and in the custody of the MLA or a non-public body is not within the scope of the Act. The MLA's letter is covered by the Act, however, if it is in the custody or control of a public body; e.g., where an MLA has written to a public body.
However, there are several categories of records that may be held by MLA's, some of which are subject to the Act. These include:
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Records of a Cabinet Minister: these records are covered by the Act where they relate to his or her Ministerial functions or his or her role as a member of Cabinet.
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Records of a member of a Cabinet-caucus committee (where the MLA is not a Cabinet minister): these Cabinet-related records are covered by the Act in the same way as records of a Cabinet minister. A person need not be a Cabinet minister to be involved with Cabinet activities.
Example
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Records of elected local officials or MLA's may be contrasted with those of Officers of the Legislative Assembly such as the Ombudsman. Records of local elected officials and MLA's are within the scope of the Act when they are in the custody or control of a public body. By contrast, operational records of the Ombudsman, such as case files, are not within the scope of the Act except as indicated by section 3(3), regardless of where the records are located.
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Court administration records
"Court administration records," includes records relating to non-judicial court staffing (i.e., court staffing except for judges or other judicial officials, including masters and justices of the peace) and personnel issues, position competitions and office management. Court administration records are subject to the Act.
Some records may contain information that falls within two or more of these categories.
Federal jurisdiction
The definition of public body does not include offices of federal jurisdiction.
Example
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Municipal police forces are subject to the Act, but the Royal Canadian Mounted Police (RCMP) is not covered by the Act since it is under federal jurisdiction. However, records of the RCMP in the custody or control of a public body, as defined in Schedule 1, are subject to the Act. Public bodies responding to requests in which responsive records include records of Federal jurisdiction normally consult with the appropriate Federal office.
Interpretation Note 2 (Section 3(1)(a)):
Court file
The language of section 3(1)(a) states "records in a court file". This means that while the records that are actually in the court file are excluded from the Act, these same records in the custody or control of a public body are not excluded.
Interpretation Note 3 (Section 3(1)(b)):
Judicial or quasi-judicial capacity
The fact that an individual is a member of a quasi-judicial board or tribunal does not mean that all of the records they create are outside the scope of the Act. The nature of each record and the context in which it was created must be taken into consideration in determining whether or not the individual was acting in a quasi-judicial capacity.
Generally, quasi-judicial boards and tribunals are under a duty to act in accordance with the rules of natural justice (Dictionary of Canadian Law). A person is acting in "judicial or quasi-judicial capacity" if he or she is required to:
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investigate facts, hear all parties to the matters at issue, weigh evidence or draw conclusions as a basis for their action;
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exercise discretion of a judicial nature; and
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render a decision following the consideration of the issues rather than simply making a recommendation.
Other factors that could be taken into consideration are:
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Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?
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Does the decision or order directly of indirectly affect the rights and obligations of persons?
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Is the adversarial process involved?
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Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?
(See Supreme Court of Canada decision in M.N.R. v. Cooper & Lybrand (1878) and Orders 02-01 of the Information and Privacy Commissioner for further details.)
Example
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Property Assessment Review Panel pursuant to the Assessment Act.
Interpretation Note 4 (Section 3(1)(c)):
"Officer of the Legislature", see Schedule 1.
Subject to section 3(3), operational case files of the Officers of the Legislature are excluded from coverage by the Act, regardless of where the files are located, assuming they relate to the exercise of that officers functions under an Act (i.e., the records may be in the custody of a public body). The administrative records of these officers, however, are subject to the Act (e.g., personnel, competition and office management files).
Records that were created by or for an Officer of the the Legislature and relate to the exercise of the statutory functions of the officer are excluded from the Act except where subject to the provisions of section 3(3) the Act. Similarly, records in the custody of an Officer of the Legislature that relate to their functions under an Act, are excluded from the Act, subject to section 3(3). However, where these same records were created by or obtained by a public body in the ordinary course of its business, and were not created for the Officer of the Legislature, the copies of these records that are in the public body's custody are subject to the Act, even where copies of the same documents are held by the Officer of the Legislature and are not subject to the Act by reason of their relating to the exercise of his or her functions under an Act.
Example
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A ministry official responds to a request from the Ombudsman’s Office for certain records pertinent to an investigation. In the ministry’s response, the cover letter and any documents created to accompany it would be excluded from the scope of the Act as they were "created for" an Officer of the Legislature. If other records are included in the response package that were created prior to the Ombudsman’s investigation, or, do not owe their existence to the investigation, the copies retained in original Ministry files would still be within the scope of the Act.
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A letter from the Ombudsman to the ministry official about an investigation is not within the scope of the Act, regardless of the physical location of the record.
Interpretation Note 5 (Section 3(1)(d)):
This exclusion applies only to questions that are to be used again in the future, including those which are included in a standard set of tests or exams. Generally, the public body should intend to use the question within the next three months, except in the context of yearly educational courses. For highly specific technical questions that are used on a regular basis a longer period may be reasonable.
Questions that were used in previous tests, but which will not be used again, are subject to the Act.
A "record of a question" may include an anticipated or correct answer that the public body has drafted for that question. It also includes a candidate’s own answers if the questions could be recreated using the answers where those questions will be used again in the future or are included in a standard set of exams.
Example
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Current and future questions used in provincial school examinations;
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Driver’s licence tests;
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Audit tests and evaluations; and,
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Government job competition questions.
Interpretation Note 6 (Section 3(1)(e)):
Teaching materials and research information
"Teach" means give systematic information to a person or about a subject or skill (Concise Oxford Dictionary, 8th edition).
"Teaching materials" includes any records produced or compiled for distribution to students, to aid an instructor in relating information to students, or otherwise used to teach.
Example
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Notes prepared by a university professor to refer to while presenting a lecture to students.
Example
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A bibliography prepared by a research assistant at a university to enable a professor to determine what background material is relevant to a research proposal.
"Post-secondary educational body" means an educational body, as defined in Schedule 1, except for a board and a francophone education authority as defined in the School Act.
Once a public body has determined that a record falls within this section, there is no need to review the record. The entire record is excluded from the scope of the Act.
Interpretation Note 7 (Section 3(1)(f)):
"By or for a person or agency other than a public body" means that any information placed in the archives of the government of British Columbia, by a person or agency that is not a public body is excluded from the Act. Further, anything placed in the archives of the government of British Columbia for a person or agency that is not a public body is excluded from the Act, regardless of whom, or what entity places it there.
Example
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Private papers of a past Lieutenant-Governor of British Columbia would be excluded, whether they were placed in the archives of the government of British Columbia by the Lieutenant-Governor, his or her family, or by a public body that had custody or control of his or her private papers, if the transfer was requested by the Lieutenant-Governor of British Columbia.
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Records of any nature placed in the archives of the government of British Columbia by someone who is not a public body are excluded from the scope of the Act.
"Archives of the government of British Columbia"
Interpretation Note 8 (Section 3(1)(g)):
Interpretation Note 9 (Section 3(1)(h)):
"Proceedings" (see paragraph 3(2) below) in respect of a prosecution are "completed" when all appeal periods have expired, or where Crown counsel has stayed a criminal prosecution and a one-year period has passed.
A professional body's complaint or disciplinary process is not normally considered to meet the criteria for a prosecution.
See also: Section 15(1)(g) - Exercise of Prosecutorial Discretion
Interpretation Note 10 (Section 3(1)(i)):
Elected official of a local public body
Private correspondence of an elected official of a local public body that is not in the custody or under the control of the local public body is not within the scope of the Act. This includes records that relate to the elected official’s private activities even if these records are located in the elected official’s office at the local public body. The physical custody of the records is a consideration, but is not determinative in deciding whether they are under the legal control of the local public body.
Examples of records outside the scope of the Act
- Records relating to the election campaign of a municipal council member, other than those records an elected official is required to submit to the municipal clerk.
- Records relating to a school trustee’s private business holdings.
Example of records within the scope of the Act
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Municipal correspondence that a councillor has taken home.
Interpretation Note 11 (Section 3(2)):
Subsection 3(2) means that the Act does not limit or prevent people from using legal processes such as "interrogatories" and "examinations for discovery" to gather information relative to the proceeding. The information available through these other processes may be broader than that which is available under the Act and the Act cannot limit the information available through these other avenues of access to only that which is available under the Act.
"Proceedings" are activities governed by rules of court or rules of judicial or quasi-judicial tribunals that can result in a judgement of a court or ruling of a judicial or quasi-judicial tribunal.
Sectional Index of Commissioner's Orders
For orders organized by the Act's section numbers, Click here.
Appendices
Letters:
3-1: Notice to Applicant Requested Record is Excluded from the Scope of the Act
Last updated: November, 2008