More topics

Section 74 - General Offences & Penalties

Last updated on April 27, 2016

Overview

Section 74 of the Act requires public bodies and other persons to co-operate both with the Commissioner and with another person in the conduct of their duties under the Act and to comply with an Order of the Commissioner or an Adjudicator. Another person may be the head of the public body or someone acting on the head’s behalf such as the Director/Manager of Information and Privacy (DMIP).

Section Reference

Section 74 of the Freedom of Information and Protection of Privacy Act

  1. A person must not willfully do any of the following:
    1. make a false statement to, or mislead or attempt to mislead, the commissioner or another person in the performance of the duties, powers or functions of the commissioner or other person under this Act, 
    2. obstruct the commissioner or another person in the performance of the duties, powers or functions of the commissioner or other person under this Act, or, 
    3. fail to comply with an order made by the commissioner under section 58 or by an adjudicator under section 65(2).
  2. A person who contravenes subsection (1) commits an offence and is liable to a fine of up to $5000. 
  3. Section 5 of the Offence Act does not apply to this Act.

Policy

  1. It is an offence to willfully mislead or obstruct the Commissioner or another person in the performance of his or her duties under the Act.

  2. Willful failure to comply with an order made by the Commissioner under section 58 or by the adjudicator under subsection 65(2) following an investigation is also an offence under the Act.

Interpretation

Failure to comply with a duty imposed by the Act or otherwise acting in contravention of the Act is not an offence unless it is covered in subsection 74(1). Outside of subsection 74(1), any failure to comply with the Act is dealt with by the Commissioner.

Under subsection 74(2), any person who commits an offence under the Act (i.e., willfully misleading or obstructing the Commissioner or another person or failing to comply with an order by the Commissioner or adjudicator) is liable, upon conviction, to a fine of up to $5000. The Attorney General is responsible for prosecuting offences under the Act and the courts determine fines upon conviction.

Subsection 74(3) of the Act provides that section 5 of the Offence Act does not apply. Section 5 of the Offence Act, a general offence provision, states "A person who contravenes an enactment by doing an act that it forbids, or omitting to do an act that it requires to be done, commits an offence against the enactment."  Under the Offence Act, the penalty is a fine of not more than $2000 or six months’ imprisonment or both. Subsection 74(3) of the Freedom of Information and Protection of Privacy Act specifies its own offences.

Sectional Index of Commissioner's Orders

For orders organized by the Act's section numbers, Click here.

For a summary of Commissioner's orders and policy interpretation of key points, Click here.

Last updated: July 27, 2007