Acts and Regulations

R-10.6 - Right to Information and Protection of Privacy Act

Full text
Document at 14 June 2019
CHAPTER R-10.6
Right to Information and
Protection of Privacy Act
Assented to June 19, 2009
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1
DEFINITIONS, PURPOSES AND APPLICATION
Definitions
1The following definitions apply in this Act.
“applicant” means a person who makes a request for access to a record under section 8.(auteur de la demande)
“business day” means a day other than a Saturday or a holiday as defined in the Interpretation Act.(jour ouvrable)
“Commissioner” Repealed: 2019, c.19, s.6
“common or integrated service, program or activity” means a service, program or activity that is provided by (service, programme ou activité commun ou intégré)
(a) a public body and one or more other public bodies or one or more non-public bodies, or
(b) a public body on behalf of one or more public bodies.
“data matching” means the creation of identifying information by combining identifying information or de-identified information or other information from two or more electronic databases or two or more electronic records.(appariement de données)
“educational body” means(organisme d’éducation)
(a) a school as defined under the Education Act and a school district established under the Education Act,
(b) a District Education Council established under the Education Act,
(c) The University of New Brunswick,
(d) Université de Moncton,
(e) St. Thomas University,
(f) Mount Allison University,
(f.1) Collège communautaire du Nouveau-Brunswick (CCNB),
(f.2) New Brunswick Community College (NBCC),
(g) New Brunswick College of Craft and Design,
(h) any faculties, schools or institutes of a body referred to in paragraphs (c) to (g), and
(i) any other body designated in Schedule A as an educational body.
“employee” , in relation to a public body, includes an individual retained under a contract to perform services for the public body.(employé)
“government body” means (organisme gouvernemental)
(a) any board, Crown corporation, commission, association, agency or similar body, whether incorporated or unincorporated, all the members of which, or all the members of the board of management or board of directors or governing board of which, are appointed by an Act of the Legislature or by the Lieutenant-Governor in Council, and
(b) any other body that is designated in Schedule A as a government body.
“head” , in relation to a public body, means (responsable d’un organisme public)
(a) in the case of a department, secretariat or office of the Province of New Brunswick specified in Part I of the First Schedule of the Public Service Labour Relations Act, the Minister of the Crown who presides over it,
(b) in the case of a school district, the superintendent,
(c) in the case of a regional health authority or other body listed in Part III of the First Schedule of the Public Service Labour Relations Act, the chief executive officer,
(d) subject to paragraph (d.1), in the case of a body listed in Part IV of the First Schedule of the Public Service Labour Relations Act, the chief executive officer,
(d.1) in the case of the New Brunswick Energy Marketing Corporation, the chair of its board of directors,
(e) in the case of a government body, except for a body referred to in paragraph (d) or (d.1), the person designated in Schedule A to act as the head or, where no person is designated, the Minister of the Crown or body responsible for the administration of the Act under which the government body is established,
(f) in the case of a university, the person or group of persons designated by by-law or resolution to serve as the head,
(g) in the case of the New Brunswick College of Craft and Design, the Minister of Post-Secondary Education, Training and Labour,
(h) in the case of a municipality, rural community or regional municipality, the person or group of persons designated by by-law or resolution to serve as the head,
(i) in the case of a local service district, the Minister of Environment and Local Government,
(j) in the case of a police force, the chief of police,
(k) in the case of other local government bodies, that person or group of persons chosen by and from among the members elected or appointed to the board and designated in writing, and
(l) in any other case, the person or group of persons designated in Schedule A to act as the head of the public body.
“health care body” means(organisme de soins de santé)
(a) a regional health authority and any other body listed in Part III of the First Schedule of the Public Service Labour Relations Act, and
(b) any other body designated in Schedule A as a health care body.
“identifying information” means information that identifies an individual or which it is reasonably foreseeable in the circumstances could be utilized, either alone or with other information, to identify an individual.(renseignements identificatoires)
“information” , unless the context otherwise requires, means information contained in a record.(renseignements)
“information practices” means the policies of a public body in relation to personal information, including(pratiques relatives aux renseignements)
(a) requirements regarding the collection, use, disclosure, retention, correction or disposal of personal information, including any requirements prescribed by regulation, and
(b) the administrative, technical and physical safeguards and practices that the public body maintains with respect to the information, including any requirements prescribed by regulation.
“integrated service, program or activity” Repealed: 2017, c.31, s.1
“law enforcement” means(exécution de la loi)
(a) policing, including criminal and security intelligence operations,
(b) a police, security intelligence or administrative investigation, including the complaint giving rise to the investigation, that leads or could lead to a penalty or sanction, including a penalty or sanction imposed by the body conducting the investigation or by another body to which the results of the investigation are referred, and
(c) proceedings that lead or could lead to a penalty or sanction, including a penalty or sanction imposed by the body conducting the proceedings or by another body to which the results of the proceedings are referred.
“local government body” means (organisme d’administration locale)
(a) a municipality or any office of a municipality, including a municipal police force,
(b) a local service district,
(c) a rural community,
(c.01) a regional municipality,
(c.1) a regional service commission established under the Regional Service Delivery Act,
(d) a local board as defined in subsection 87(1) of the Local Governance Act, and
(e) any other body designated in Schedule A as a local government body.
“local public body” means (organisme public local)
(a) an educational body,
(b) a health care body, and
(c) a local government body.
“Minister” means the President of Treasury Board and includes any person designated by the President to act on the President’s behalf.(ministre)
“non-public body” means a person that is not a public body.(organisme non public)
“Office of the Attorney General” means the part of the Department of Justice and Office of the Attorney General that includes the Legal Services Branch, the Legislative Services Branch, the Family Crown Services Branch and the Public Prosecution Services Branch.(Cabinet du procureur général)
“Office of the Attorney General” Repealed: 2013, c.42, s.17
“officer of the Legislative Assembly” means the Speaker of the Legislative Assembly, the Clerk of the Legislative Assembly, the Chief Electoral Officer, the Ombud, the Child, Youth and Senior Advocate, the Consumer Advocate for Insurance, the Integrity Commissioner, the Commissioner of Official Languages for New Brunswick and the Auditor General.(fonctionnaire de l’Assemblée législative)
“Ombud” means the Ombud appointed under section 2 of the Ombud Act.(ombud)
“personal information” means recorded information about an identifiable individual, including but not limited to,(renseignements personnels)
(a) the individual’s name,
(b) the individual’s home address or electronic mail address or home telephone or facsimile number,
(c) information about the individual’s age, gender, sexual orientation, marital status or family status,
(d) information about the individual’s ancestry, race, colour, nationality or national or ethnic origin,
(e) information about the individual’s religion or creed or religious belief, association or activity,
(f) personal health information about the individual,
(g) the individual’s blood type, fingerprints or other hereditary characteristics,
(h) information about the individual’s political belief, association or activity,
(i) information about the individual’s education, employment or occupation or educational, employment or occupational history,
(j) information about the individual’s source of income or financial circumstances, activities or history,
(k) information about the individual’s criminal history, including regulatory offences,
(l) the individual’s own personal views or opinions, except if they are about another person,
(m) the views or opinions expressed about the individual by another person, and
(n) an identifying number, symbol or other particular assigned to the individual.
“public body” (organisme public)
(a) means
(i) a department, secretariat or office of the Province of New Brunswick, including but not limited to those portions of the public service specified in Part I of the First Schedule of the Public Service Labour Relations Act,
(ii) a government body, board, Crown corporation or commission listed under Part IV of the First Schedule of the Public Service Labour Relations Act,
(iii) a government body,
(iv) the office of a Minister of the Crown, or
(v) a local public body;
(b) but does not include
(i) the office of a member of the Legislative Assembly,
(ii) the office of an officer of the Legislative Assembly, or
(iii) The Court of Appeal of New Brunswick, The Court of Queen’s Bench of New Brunswick, the Provincial Court of New Brunswick or the Small Claims Court of New Brunswick.
“public registry” means a registry of information designated in the regulations that is maintained by a public body and is available to the general public.(registre public )
“record” means a record of information in any form, and includes information that is written, photographed, recorded or stored in any manner, on any storage medium or by any means, including by graphic, electronic or mechanical means, but does not include electronic software or any mechanism that produces records.(document)
“research data centre” means a research data centre as defined under the Personal Health Information Privacy and Access Act. (centre de données de recherche)
“review committee” means the Privacy Assessment Review Committee established by the Minister under section 77.(comité d’évaluation)
“service, program or activity” Repealed: 2017, c.31, s.1
“third party” means a person other than the applicant or the public body.(tiers)
2010, c.N-4.05, s.62; 2012, c.15, s.46; 2012, c.39, s.134; 2012, c.44, s.19; 2013, c.7, s.167; 2013, c.42, s.17; 2013, c.47, s.7; 2015, c.36, s.1; 2015, c.44, s.108; 2016, c.37, s.169; 2016, c.53, s.27; 2016, c.54, s.16; 2017, c.1, s.9; 2017, c.20, s.166; 2017, c.29, s.2; 2017, c.31, s.1; 2017, c.63, s.53; 2019, c.2, s.129; 2019, c.19, s.6
Interpretation of the definition “common or integrated service, program or activity”
2017, c.31, s.2
1.1(1)For the purposes of the definition “common or integrated service, program or activity”, a public body or non-public body shall be deemed to be providing a service, program or activity if that public body or non-public body discloses personal information that relates directly to and is necessary for the provision of the service, program or activity by another public body or non-public body.
1.1(2)The disclosure of personal information referred to in subsection (1) may occur one or more times or on an on-going basis.
2017, c.31, s.2
Purposes of this Act
2The purposes of this Act are
(a) to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
(b) to control the manner in which public bodies may collect personal information from individuals and to protect individuals against unauthorized use or disclosure of personal information by public bodies,
(c) to allow individuals a right of access to records containing personal information about themselves in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
(d) to allow individuals a right to request corrections to records containing personal information about themselves in the custody or under the control of public bodies, and
(e) to provide for an independent review of the decisions of public bodies under this Act.
2017, c.31, s.3
Application
3(1)This Act
(a) is in addition to and does not replace existing procedures for access to records or information normally available to the public, including any requirement to pay fees,
(b) does not prohibit the transfer, storage or destruction of any record in accordance with any other Act of the Legislature or of the Parliament of Canada or a by-law or resolution of a government body or local public body,
(c) does not limit the information otherwise available by law to a party to legal proceedings,
(d) does not affect the power of a court or tribunal to compel a witness to testify or to compel the production of documents, and
(e) does not affect the power of an officer of the Legislative Assembly to compel a witness to testify or to compel the production of documents.
3(2)Repealed: 2019, c.2, s.129
2016, c.37, s.169; 2019, c.2, s.129
This Act applies to all records that are not otherwise excluded
2017, c.31, s.4
3.1This Act applies to all records in the custody of or under the control of a public body except for the records under section 4.
2017, c.31, s.4
Records excluded from the application of this Act
2017, c.31, s.5
4This Act does not apply to
(a) information in a court record, a record of a judge, a judicial administration record or a record relating to support services provided to a judge or to a court official,
(b) a record pertaining to legal affairs that relate to the performance of the duties and functions of the Office of the Attorney General,
(c) a note made by or for, or a communication or draft decision of, a person who is acting in a judicial or quasi-judicial capacity,
(d) a record of a member of the Legislative Assembly who is not a Minister of the Crown,
(e) a personal or constituency record of a Minister of the Crown,
(f) a record made by or for an officer of the Legislative Assembly,
(g) a record made by or for an elected official of a local public body relating to constituency matters,
(h) teaching materials of an employee of an educational institution or other research information of an employee of an educational institution,
(i) information the release of which is prohibited under the Security of Information Act (Canada),
(j) a record in the care, custody and control of the Provincial Archives, and
(k) a record in the care, custody and control of the archives of a public body placed in the archives by or for a person or agency other than the public body.
2012, c.39, s.134; 2017, c.31, s.6
This Act prevails over other Acts unless expressly provided otherwise
2017, c.31, s.7
5If a provision of this Act is inconsistent with or in conflict with a provision of another Act of the Legislature, the provision of this Act prevails unless the other Act of the Legislature expressly provides that it, or a provision of it, prevails despite this Act.
2017, c.31, s.8
Delegation by the head of a public body
6(1)The head of a public body may, in writing, delegate a duty or power of the head under this Act, except for the power to delegate to any of the following persons:
(a) an officer or employee of the public body, or
(b) an officer or employee of another public body.
6(2)The head of a public body may impose such terms and conditions as he or she considers appropriate on a delegation made under subsection (1).
2017, c.31, s.9
2
RIGHT TO INFORMATION
A
Obtaining access to records
Entitlement to request and receive information
7(1)Subject to this Act, every person is entitled to request and receive information relating to the public business of a public body, including, without restricting the generality of the foregoing, any activity or function carried on or performed by any public body to which this Act applies.
7(2)Without limiting subsection (1), every individual is entitled to request and receive information about himself or herself.
7(3)The right to request and receive information under subsection (1) does not extend to information that is excepted from disclosure under Division B or C of this Part, but if that information can reasonably be severed from the record, an applicant has a right to request and receive information from the remainder of the record.
Request for access
8(1)If a person wishes to request and receive information relating to the public business of a public body, the person shall make a request, in writing or by electronic means, for access to the record to the public body that the person believes has custody or control of the record.
8(2)A request for access to a record shall
(a) specify the record requested or where the record in which the relevant information may be contained is not known to the applicant, provide enough particularity as to time, place and event to enable a person familiar with the subject matter to identify the relevant record, and
(b) include any information prescribed by regulation.
8(3)An applicant may make an oral request for access to a record if the applicant
(a) has a limited ability to read or write in English or in French, or
(b) has a disability or condition that impairs his or her ability to make a written request.
2017, c.31, s.10
Duty to assist applicant
9The head of a public body shall make every reasonable effort to assist an applicant, without delay, fully and in an open and accurate manner.
Access to records in electronic form
10(1)If requested information is in the custody or control of a public body in electronic form, the head of the public body shall produce a record for the applicant if
(a) it can be produced using the normal computer hardware and software and technical expertise of the public body, and
(b) producing it would not interfere unreasonably with the operations of the public body.
10(2)If a record exists but is not in the form requested by the applicant, the head of the public body may create a record in the form requested if the head is of the opinion that it would be simpler and less costly for the public body to do so.
2017, c.31, s.11
Time limit for responding
11(1)The head of a public body shall respond in writing to a request for access to a record within 30 business days after receiving the request unless
(a) the time limit for responding is extended under subsection (3) or (4),
(b) the request has been transferred to another public body under section 13, or
(c) an estimate is given to the applicant under section 80.
11(2)The failure of the head of a public body to respond to a request for access to a record within the period of 30 business days or any extended period is to be treated as a decision to refuse access to the record.
11(3)The head of a public body may extend the time for responding to a request for up to an additional 30 business days if
(a) the applicant does not give enough detail to enable the public body to identify a requested record,
(b) the applicant does not respond to a request for clarification by the head of the public body as soon as the circumstances permit,
(c) a large number of records is requested or must be searched or responding within the time period set out in subsection (1) would interfere unreasonably with the operations of the public body,
(d) time is needed to notify and receive representations from a third party or to consult with another public body before deciding whether or not to grant access to a record,
(e) a third party refers the matter to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1) or files a complaint with the Ombud under paragraph 67(1)(b), or
(f) the applicant requests records that relate to a proceeding commenced by a Notice of Action or a Notice of Application.
11(4)In any case referred to in subsection (3), the head of a public body may, if approved by the Ombud, extend the time limit for responding to a request for a period longer than 30 business days.
11(5)If the time for responding is extended under subsection (3) or (4), the head of the public body shall send a written notice to the applicant setting out
(a) the reason for the extension,
(b) when a response can be expected, and
(c) if the head of the public body has extended the time limit under subsection (3), that the person may file a complaint with the Ombud about the extension.
2017, c.31, s.12; 2019, c.19, s.6
Decision to consider an application abandoned
2017, c.31, s.13
12(1)If the head of the public body sends the applicant a written request for clarification or a written request to pay or agree to pay a fee for access to a record and the applicant does not respond to the request within 20 business days after receiving the request, the head of the public body may consider the request for access to be abandoned.
12(2)If the head of the public body decides to consider the request to be abandoned under subsection (1), the head shall notify the applicant in writing of his or her right to file a complaint with the Ombud with respect to the decision.
2017, c.31, s.14; 2019, c.19, s.6
Transferring a request for access
2017, c.31, s.15
13(1)Within 10 business days after a public body receives a request for access to a record, the head of the public body may transfer the request to another public body if
(a) the record was produced by or for the other public body,
(b) the other public body was the first to obtain the record, or
(c) the record is in the custody of or under the control of the other public body.
13(2)If a request for access to a record is transferred under subsection (1),
(a) the head of the public body who transferred the request shall notify the applicant of the transfer in writing as soon as the circumstances permit, and
(b) the head of the public body to which the request is transferred shall respond to the request within 30 business days after receiving it, unless the time limit is extended under subsection 11(3) or notice is given to a third party under section 34.
2017, c.31, s.16
Contents of response
14(1)In a response under subsection 11(1), the head of the public body shall inform the applicant
(a) as to whether access to the record or part of the record is granted or refused,
(b) if access to the record or part of the record is granted, of the manner in which access will be given, and
(c) if access to the record or part of the record is refused,
(i) in the case of a record that does not exist or cannot be located, that the record does not exist or cannot be located;
(ii) in the case of a record that exists and can be located, of the reasons for the refusal and the specific provision of this Act on which the refusal is based;
(iii) of the title and business telephone number of an officer or employee of the public body who can answer the applicant’s questions about the refusal; and
(iv) that the applicant has the right to file a complaint with the Ombud about the refusal or to refer the matter to a judge of The Court of Queen’s Bench of New Brunswick for review.
14(2)Despite paragraph (1)(c), the head of a public body may, in a response, refuse to confirm or deny the existence of
(a) a record containing information for which disclosure may be refused under sections 28 and 29, and
(b) a record containing personal information about a third party if disclosing the existence of the record would be an unreasonable invasion of the third party’s privacy.
2019, c.19, s.6
Power to authorize a head to disregard requests
15On the request of a public body, the Ombud may authorize the head to disregard one or more requests for access if the request for access
(a) would unreasonably interfere with the operations of the public body because of the repetitious or systematic nature of the request or previous requests,
(b) is incomprehensible, frivolous or vexatious, or
(c) is for information already provided to the applicant.
2017, c.31, s.17; 2019, c.19, s.6
How access will be given
16(1)Subject to subsection 7(3), the right of access to a record is met under this Part
(a) if the applicant has asked for a copy and the record can reasonably be reproduced, by giving the applicant a copy of the record, or
(b) if the applicant has asked to examine a record or has asked for a copy of a record that cannot reasonably be reproduced, by permitting the applicant to examine the record or a part of the record or by giving him or her access in accordance with the regulations.
16(1.1)The head of a public body may obscure information contained in a record referred to in paragraph (1)(a) or (b) or sever information from a record referred to in paragraph (1)(a) or (b) before giving the applicant a copy of the record or permitting the applicant to examine the record, if, in the opinion of the head, the information is not relevant to the request for information.
16(2)The head of a public body who gives access to a record may give the applicant any additional information that the head believes may be necessary to explain the record.
16(3)The head of a public body shall only be required to give access to a record in the language or languages in which the record was made.
2017, c.31, s.18
B
Mandatory exceptions to disclosure
Executive Council confidences
17(1)The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council, including but not limited to,
(a) an agenda, minute or other record of the deliberations or decisions of the Executive Council,
(b) discussion papers, policy analyses, proposals, memorandums, advice or similar briefing material submitted or prepared for submission to the Executive Council,
(c) a proposal or recommendation prepared for, or reviewed and approved by, a Minister of the Crown for submission to the Executive Council,
(d) a record that reflects communications among Ministers of the Crown relating directly to the making of a government decision or the formulation of government policy, and
(e) a record prepared to brief a Minister of the Crown about a matter that is before, or is proposed to be brought before, the Executive Council or that is the subject of communications referred to in paragraph (d).
17(2)With the approval of the Executive Council, the Clerk of the Executive Council may disclose information referred to in subsection (1) if a record is more than 15 years old.
2017, c.31, s.19
Information provided in confidence
2017, c.31, s.20
18(1)The head of a public body shall refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal information provided, explicitly or implicitly, in confidence by any of the following or their agencies:
(a) the Government of Canada;
(b) the government of a province or territory of Canada;
(c) a local public body;
(d) the government of a foreign country or of a state, province or territory of a foreign country;
(e) an organization representing one or more governments;
(f) an international organization of states.
18(2)Subsection (1) does not apply if the government, local public body, organization or agency that provided the information consents to the disclosure or makes the information public.
Disclosure harmful to governmental relations
2017, c.31, s.21
18.1(1)The head of a public body shall refuse to disclose information to an applicant if disclosure could reasonably be expected to harm relations between the Province of New Brunswick or a government body and any of the following or their agencies:
(a) the Government of Canada;
(b) the government of another province or territory of Canada;
(c) a local public body;
(d) the government of a foreign country or of a state, province or territory of a foreign country;
(e) an organization representing one or more governments; and
(f) an international organization of states.
18.1(2)Subsection (1) does not apply if
(a) the Attorney General consents to the disclosure, if the information is law enforcement information, or
(b) the Lieutenant-Governor in Council consents to the disclosure, if the information is not law enforcement information.
2017, c.31, s.21
Information in a law enforcement record for which the disclosure is prohibited
2017, c.31, s.21
18.2The head of a public body shall refuse to disclose information to an applicant if the information is in a law enforcement record and the disclosure is prohibited under an Act of the Parliament of Canada.
2017, c.31, s.21
Information provided by a council of the band
19(1)The head of a public body shall refuse to disclose information to an applicant that could reasonably be expected to reveal information provided, explicitly or implicitly, in confidence by a council of the band as defined in the Indian Act (Canada).
19(2)Subsection (1) does not apply if the council of the band consents to the disclosure or makes the information public.
Information from a harassment, personnel or university investigation
20(1)The head of a public body shall refuse to disclose information to an applicant that would reveal
(a) the substance of records made by an investigator providing advice or recommendations of the investigator in relation to a harassment investigation or a personnel investigation,
(b) the substance of other records relating to the harassment investigation or the personnel investigation, or
(c) the substance of records made pursuant to a university’s academic or non-academic by-laws or regulations with respect to conduct or discipline of a student.
20(2)The head of a public body may disclose to the applicant who is a party to the harassment investigation or personnel investigation the information referred to in paragraphs (1)(b) and (c) by allowing the applicant to examine the records, but the head may refuse to provide the applicant copies of the record.
Unreasonable invasion of third party’s privacy
21(1)The head of a public body shall refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s privacy.
21(2) A disclosure of personal information about a third party shall be deemed to be an unreasonable invasion of the third party’s privacy if
(a) the personal information is personal health information,
(b) the personal information was compiled and is identifiable as part of an investigation into a possible violation of a law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation,
(c) disclosure could reasonably be expected to reveal the identity of a third party who has provided information in confidence to a public body for the purposes of law enforcement or the administration of an Act of the Legislature or an Act of the Parliament of Canada,
(d) the personal information relates to eligibility for or receipt of income assistance, legal aid benefits, social service benefits or similar benefits, or to the determination of benefit levels,
(e) the personal information relates to the third party’s employment, occupational or educational history,
(f) the personal information was collected on a tax return or for the purpose of determining tax liability or collecting a tax,
(g) the personal information describes the third party’s source of income or financial circumstances, activities or history,
(g.1) the public body is not authorized to disclose the personal information under subsection 46(1),
(h) the personal information consists of personal recommendations or evaluations, character references or personnel evaluations, or
(i) the personal information indicates the third party’s racial or ethnic origin, religious or political beliefs or associations or sexual orientation.
21(3)Despite subsection (2), disclosure of personal information is not an unreasonable invasion of a third party’s privacy if
(a) the third party has consented to or requested the disclosure,
(b) there are compelling circumstances affecting the mental or physical health or the safety of the applicant or another person and notice of the disclosure is mailed to the last known address of the third party,
(c) an Act of the Legislature or an Act of the Parliament of Canada expressly authorizes or requires the disclosure,
(c.1) the disclosure is authorized under subsection 46(1),
(c.2) the disclosure is required under subsection 46.1(3),
(d) the disclosure is approved under section 47,
(e) the information is about the third party’s business name, address, telephone number, facsimile number, electronic mail address or title,
(f) the information is about the third party’s job classification, salary range, benefits, employment responsibilities or travel expenses
(i) as an officer or employee of a public body,
(ii) as a Minister of the Crown, or
(iii) as an elected or appointed member of the governing council or body of a local public body or as a member of the staff of such a council or body,
(g) the disclosure reveals financial or other details of a contract to supply goods or services to or on behalf of a public body,
(h) the disclosure reveals information about a discretionary benefit of a financial nature granted by a public body to the third party, including the granting of a licence or permit, or
(i) the information is about an individual who has been dead for more than 20 years.
21(4)If the third party consents to or requests disclosure under paragraph (3)(a), the head of the public body may
(a) require the consent or request to be in writing, and
(b) comply with the requirement to provide access by disclosing the information directly to the third party rather than to the applicant.
2017, c.31, s.22
Disclosure harmful to a third party’s business or financial interests
22(1)The head of a public body shall refuse to disclose to an applicant information that would reveal
(a) a trade secret of a third party,
(b) commercial, financial, labour relations, scientific or technical information supplied to the public body by a third party, explicitly or implicitly, on a confidential basis and treated consistently as confidential information by the third party, or
(c) commercial, financial, labour relations, scientific or technical information the disclosure of which could reasonably be expected to
(i) harm the competitive position of a third party,
(ii) interfere with contractual or other negotiations of a third party,
(iii) result in significant financial loss or gain to a third party,
(iv) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, or
(v) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute.
22(2)The head of a public body shall refuse to disclose to an applicant information about a third party that was collected on a tax return or for the purpose of determining tax liability or collecting a tax.
22(3)Subsections (1) and (2) do not apply if
(a) the third party consents to the disclosure,
(b) the information is publicly available,
(c) an Act of the Legislature or an Act of the Parliament of Canada expressly authorizes or requires the disclosure, or
(d) the information discloses the final results of an environmental test conducted by or for the public body unless the test was done for a fee paid by the third party.
22(4)Subject to section 34 and any other exception provided for in this Act, the head of a public body may disclose a record that contains information described in subsection (1) or (2) if, in the opinion of the head, the private interest of the third party in non-disclosure is clearly outweighed by the public interest in disclosure for the purposes of
(a) improved competition, or
(b) government regulation of undesirable trade practices.
22(5)Subject to section 34 and any other exception provided for in this Act, the head of a public body shall disclose a record that contains information described in subsection (1) or (2) if, in the opinion of the head, the private interest of the third party in non-disclosure is clearly outweighed by the significant public interest in disclosure for the purposes of public health or safety or protection of the environment.
Information subject to a solicitor-client privilege of a third party
2017, c.31, s.23
22.1The head of a public body shall refuse to disclose to an applicant information that is subject to a solicitor-client privilege of a third party.
2017, c.31, s.23
C
Discretionary exceptions to disclosure
Disclosure harmful to governmental relations
Repealed: 2017, c.31, s.24
2017, c.31, s.24
23Repealed: 2017, c.31, s.25
2017, c.31, s.25
Disclosure harmful to relations between New Brunswick and a council of the band
24The head of a public body may refuse to disclose information to an applicant if the information could reasonably be expected to harm relations between the Province of New Brunswick, a local government body or a government body and one or more councils of the band as defined in the Indian Act (Canada).
Local public body confidences
25(1)The head of a local public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal
(a) a draft of a resolution, by-law or other legal instrument by which the local public body acts, or
(b) the substance of deliberations of a meeting of the elected officials of the local public body or of its governing body or a committee of its elected officials or governing body if the public is excluded from the meeting.
25(2)Subsection (1) does not apply if
(a) the draft referred to in paragraph (1)(a) has been considered in a meeting open to the public,
(b) the substance of the deliberations referred to in paragraph (1)(b) has been considered in a meeting open to the public, or
(c) the information referred to in subsection (1) is in a record that is more than 20 years old.
Advice to a public body
26(1)The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal
(a) advice, opinions, proposals or recommendations developed by or for the public body or a Minister of the Crown,
(b) positions, plans, procedures, criteria or instructions developed for the purpose of contractual or other negotiations by or on behalf of the Province of New Brunswick or the public body, or considerations that relate to those negotiations,
(c) plans relating to the management of personnel or the administration of the public body that have not yet been implemented,
(d) the content of draft legislation or regulations and orders of Ministers of the Crown or the Lieutenant-Governor in Council, or
(e) information, including the proposed plans, policies or projects of a public body, the disclosure of which could reasonably be expected to result in disclosure of a pending policy or budgetary decision.
26(2)Subsection (1) does not apply if the information
(a) is in a record that is more than 20 years old,
(b) is an instruction or guideline issued to officers or employees of the public body,
(c) is a substantive rule or statement of policy that has been adopted by the public body for the purpose of interpreting an Act of the Legislature or administering a program or activity of the public body,
(d) is the result of an environmental test conducted by or for the public body,
(e) is a statement of the reasons for a decision made in the exercise of a quasi-judicial function or a discretionary power that affects the applicant,
(f) is the result of background research of a scientific or technical nature undertaken in connection with the formulation of a policy proposal,
(g) is a statistical study,
(h) is a record that is part of a quantitative or qualitative research study of public opinion, or
(i) is a final report or final audit on the performance or efficiency of the public body or of any of its programs or policies, except where the information is a report or appraisal of the performance of an individual who is or was an officer or employee of the public body.
26(3)For the purpose of paragraph (2)(f), background research of a technical nature does not include economic or financial research undertaken in connection with the formulation of a tax policy or other economic policy of the public body.
Legal privilege
27Subject to paragraph 4(b) and section 22.1, the head of a public body may refuse to disclose to an applicant
(a) information that is subject to solicitor-client privilege,
(b) information prepared by or for an agent or lawyer of the Office of the Attorney General or the public body in relation to a matter involving the provision of legal advice or legal services or in relation to the investigation or prosecution of an offence, or
(c) information in a communication between an agent or lawyer of the Office of the Attorney General or the public body and any other person in relation to a matter involving the provision of legal advice or legal services or in relation to the investigation or prosecution of an offence.
2017, c.31, s.26
Disclosure harmful to an individual or to public safety or in the public interest
28(1)The head of a public body may refuse to disclose to an applicant information, including personal information about that person, if disclosure could reasonably be expected to
(a) threaten or harm the mental or physical health or the safety of another person,
(b) result, in the opinion of a duly qualified physician, psychologist or other appropriate expert, in serious harm to the applicant’s mental or physical health or safety, or
(c) threaten public safety.
28(2)Repealed: 2017, c.31, s.27
28(3)Repealed: 2017, c.31, s.27
28(4)Repealed: 2017, c.31, s.27
2017, c.31, s.27
Disclosure harmful to law enforcement or legal proceedings
29(1)The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to
(a) harm a law enforcement matter,
(b) prejudice the defence of Canada or of a foreign state allied to or associated with Canada or harm the detection, prevention or suppression of espionage, sabotage or terrorism,
(c) harm the effectiveness of investigative techniques and procedures currently used, or likely to be used, in law enforcement,
(d) interfere with the gathering of, or reveal criminal intelligence that has a reasonable connection with, the detection, prevention or suppression of organized criminal activities or of serious and repetitive criminal activities,
(e) endanger the life or safety of a law enforcement officer or any other person,
(f) deprive a person of the right to a fair trial or impartial adjudication,
(g) disclose a record that has been confiscated from a person by a peace officer in accordance with an Act of the Legislature or an Act of the Parliament of Canada,
(h) disclose a record relating to a prosecution or an inquest under the Coroners Act if all proceedings concerning the prosecution or inquest have not been completed,
(i) facilitate the escape from custody of an individual who is lawfully detained,
(j) facilitate the commission of an unlawful act or interfere with the control of crime,
(k) disclose technical information relating to weapons or potential weapons,
(l) interfere with the proper custody or supervision of an individual who is lawfully detained,
(m) reveal information in a correctional record supplied, explicitly or implicitly, in confidence,
(n) expose to civil liability the author of a law enforcement record or a person who has been quoted or paraphrased in the record, or
(o) be injurious to the conduct of existing legal proceedings to which the Province of New Brunswick or the public body is a party or anticipated legal proceedings to which the Province of New Brunswick or the public body may become a party.
29(2)Repealed: 2017, c.31, s.28
29(3)Subsection (1) does not apply to
(a) a report, including statistical analysis, on the degree of success achieved by a law enforcement program, unless disclosure of the report could reasonably be expected to cause any harm or interference referred to in subsection (1), and
(b) a record that provides a general outline of the structure or programs of a law enforcement agency.
2017, c.31, s.28
Disclosure harmful to economic and other interests of a public body
30(1)The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to harm the economic or financial interests or negotiating position of a public body or the Province of New Brunswick, including but not limited to, the following information:
(a) a trade secret of a public body or the Province of New Brunswick;
(b) financial, commercial, scientific, technical or other information in which a public body or the Province of New Brunswick has a proprietary interest or right of use;
(c) information the disclosure of which could reasonably be expected to result in a financial loss to a public body or to the Province of New Brunswick or prejudice the competitive position of or interfere with or prejudice contractual or other negotiations of a public body or the Province of New Brunswick;
(d) innovative scientific or technical information obtained through research by an employee of a public body or the Province of New Brunswick; and
(e) information the disclosure of which could reasonably be expected to result in an undue loss or benefit to a person, or premature disclosure of a pending policy decision, including but not limited to
(i) a contemplated change in taxes or other source of revenue,
(ii) a contemplated change in government borrowing,
(iii) a contemplated change in the conditions of operation of a financial institution, stock exchange, or commodities exchange, or of any self-regulating organization recognized by the Financial and Consumer Services Commission under an Act of the Legislature,
(iv) a contemplated sale or purchase of securities, bonds or foreign or Canadian currency;
(f) a record originating from a credit union that is in the custody of or under the control of the New Brunswick Credit Union Deposit Insurance Corporation under the Credit Unions Act.
30(2)Subsection (1) does not apply to the results of an environmental test conducted by or for a public body, unless the test was done for the purpose of developing methods of testing or for the purpose of testing products for possible purchase.
2013, c.31, s.35; 2017, c.31, s.29
Tests, testing procedures and audits
31The head of a public body may refuse to disclose to an applicant
(a) information relating to testing or auditing procedures or techniques or details of specific tests to be given or audits to be conducted, if disclosure could reasonably be expected to prejudice the use or results of particular tests or audit, and
(b) a question that is to be used on an examination or test.
Confidential evaluations
32The head of a public body may refuse to disclose to an applicant personal information that has been provided in confidence, explicitly or implicitly, for purposes of determining the applicant’s suitability, eligibility or qualifications for
(a) employment or for the purpose of awarding a contract, or
(b) an honour or award, including an honorary degree, scholarship, prize or bursary.
Information that is or will be available to the public
33(1)In this section, information published includes information published by electronic means.
33(2)The head of a public body may refuse to disclose to an applicant information
(a) that is free of charge to the public or is available for purchase by the public, or
(b) that the head reasonably believes will be published within 65 business days after the person’s request is received.
33(3)When the head of a public body has refused to disclose information under paragraph (2)(b), the head shall
(a) notify the applicant when the information becomes available, and
(b) if the information is not available to the public within 65 business days after the person’s request is received, reconsider the request as if it were a new request received on the fortieth day of the 65-business-day period and shall not be entitled to refuse access to the information under paragraph (2)(b).
2017, c.31, s.30
C.1
Mandatory disclosure
2017, c.31, s.31
Mandatory disclosure – risk of significant harm
2017, c.31, s.31
33.1(1)Despite any provision of this Act, whether or not a request for access is made, the head of a public body shall, without delay, disclose to the public, to an affected group of people or to an applicant, information about a risk of significant harm to the environment or to the health or safety of the public or a group of people, the disclosure of which is clearly in the public interest.
33.1(2)Before disclosing information under subsection (1), the head of a public body shall, if practicable, notify any person to whom the information relates.
33.1(3)If it is not practicable to comply with subsection (2), the head of the public body shall mail a notice of disclosure in the form determined by the Minister to the latest known address of the person.
2017, c.31, s.31
D
Third party intervention
Notice to third party
34(1)If the head of a public body is considering giving access to a record the disclosure of which might result in an unreasonable invasion of a third party’s privacy under section 21 or affect a third party’s interests described in subsection 22(1) or (2), the head shall, if practicable and as soon as the circumstances permit, give written notice to the third party.
34(2)If the third party has consented to or requested the disclosure, the third party is deemed to have waived the requirement for notice under subsection (1).
2017, c.31, s.32
Content of notice
35(1)A notice referred to in subsection 34(1) shall
(a) state that a request has been made for access to a record that may contain information the disclosure of which might invade the privacy or affect the interests of the third party,
(b) include a copy of the record or part of it containing the information in question or describe the contents of the record, and
(c) state that, within 15 business days after the notice is given, the third party may, in writing, consent to the disclosure or make representations to the head of the public body explaining why the information should not be disclosed.
35(2)If notice is given under subsection 34(1), the head of the public body shall also give the applicant a notice stating that
(a) the record requested by the applicant may contain information the disclosure of which might invade the privacy or affect the interests of a third party,
(b) the third party is being given an opportunity to make representations concerning disclosure, and
(c) a decision respecting disclosure will be made within 20 business days after notice is given under subsection 34(1), unless the time limit for responding is extended under subsection 11(3).
35(3)Representations by a third party under this section shall be made in writing unless the head of the public body permits them to be made orally.
2017, c.31, s.33
Decision within 20 business days
2017, c.31, s.34
36(1)Within 20 business days after notice is given under subsection 34(1), the head of the public body shall decide whether or not to give access to the record or to part of the record, but no decision may be made before the earlier of
(a) fifteen business days after the notice is given, and
(b) the day a response is received from the third party.
36(2)On reaching a decision under subsection (1), the head of the public body shall give written notice of the decision to the applicant and the third party, including reasons for the decision.
36(3)Subsection 11(3) applies with the necessary modifications in relation to the time limit referred to in subsection (1).
36(4)If the head of the public body decides to give access to the record or part of the record, the notice under subsection (2) shall state that the applicant will be given access unless the third party files a complaint with the Ombud or refers the matter to a judge of The Court of Queen’s Bench of New Brunswick for review under Part 5 within 15 business days after the notice is given.
36(5)If the head of the public body decides not to give access to the record or part of the record, the notice under subsection (2) shall state that the applicant may file a complaint with the Ombud or may refer the matter to a judge of The Court of Queen’s Bench of New Brunswick for review under Part 5 within 40 business days after the notice is given.
2017, c.31, s.35; 2019, c.19, s.6
3
PROTECTION OF PRIVACY
A
Collection, correction and retention of personal information
Collection of personal information
2017, c.31, s.36
37(1)Personal information may be collected by or for a public body only if the collection of the information is authorized or required by or under an Act of the Legislature or an Act of the Parliament of Canada.
37(2)Despite subsection (1), personal information may also be collected by or for a public body without the collection of the information being authorized or required by or under an Act of the Legislature or an Act of the Parliament of Canada if
(a) the information relates directly to and is necessary for
(i) a service, program or activity of the public body, or
(ii) a common or integrated service, program or activity,
(b) the information is collected for law enforcement purposes, or
(c) the information is collected by or for the public body for the purpose for which the information was disclosed to it under a provision of section 46 or 46.1.
37(3)A public body shall collect only as much personal information about an individual as is reasonably necessary to accomplish the purpose for which it is collected.
2013, c.47, s.7; 2017, c.31, s.37
Collection of personal information by the Minister of Health or a research data centre
2017, c.29, s.2
37.1Despite section 37, personal information may be collected by or for the Minister of Health or a research data centre in accordance with the agreement referred to in paragraph 47.1(b).
2017, c.29, s.2
Manner of collection
38(1)Personal information shall be collected by or for a public body directly from the individual the information is about unless
(a) another method of collection is authorized by that individual or by an Act of the Legislature or an Act of the Parliament of Canada,
(b) collection of the information directly from the individual could reasonably be expected to cause harm to the individual or to another person,
(c) collection of the information is in the interest of the individual and time or circumstances do not permit collection directly from the individual,
(d) collection of the information directly from the individual could reasonably be expected to result in inaccurate information being collected,
(e) the information may be disclosed to the public body under Division B of this Part,
(f) the information is collected for inclusion in a public registry,
(g) the information is collected for law enforcement purposes,
(h) the information is collected for the purpose of existing or anticipated legal proceedings to which the Province of New Brunswick or the public body is a party,
(i) the information is collected for use in providing legal advice or legal services to the Province of New Brunswick or the public body,
(j) the information concerns
(i) the history, release or supervision of an individual in the custody of or under the control or supervision of a correctional facility, or
(ii) the security of a correctional facility,
(k) the information is collected for the purpose of enforcing a support order under the Support Enforcement Act,
(l) the information is collected for the purpose of informing the Public Trustee about clients or potential clients,
(m) the information is collected for the purpose of
(i) determining the eligibility of an individual to participate in a program of or receive a benefit or service from the Province of New Brunswick or the public body and is collected in the course of processing an application made by or on behalf of the individual the information is about, or
(ii) verifying the eligibility of an individual who is participating in a program of or receiving a benefit or service from the Province of New Brunswick or the public body,
(n) the information is collected for the purpose of
(i) determining the amount of or collecting a fine, debt, tax or payment owing to the Province of New Brunswick or the public body, or an assignee of either of them, or
(ii) making a payment,
(o) the information is collected for the purpose of managing or administering personnel of the Province of New Brunswick or the public body,
(p) the information is collected for the purpose of auditing, monitoring or evaluating the activities of the Province of New Brunswick or the public body,
(q) the information is collected for the purpose of determining suitability for an honour or award, including an honourary degree, scholarship, prize or bursary, or
(r) the information is collected for some other substantial reason in the public interest, whether or not it is similar in nature to paragraphs (a) to (q).
38(2)A public body that collects personal information directly from the individual the information is about shall inform the individual of
(a) the purpose for which the information is collected,
(b) the legal authority for the collection, and
(c) the title, business address and telephone number of an officer or employee of the public body who can answer the individual’s questions about the collection.
38(3)Subsection (2) does not apply to a public body if the public body has recently provided the individual with the information referred to in that subsection about the collection of the same or similar personal information for the same or a related purpose.
2017, c.31, s.38
Accuracy of personal information
39If personal information about an individual will be used by a public body to make a decision that directly affects the individual, the public body shall take reasonable steps to ensure that the information is accurate and complete.
Right to request correction of personal information
2017, c.31, s.39
40(1)An applicant who has been given access to a record containing his or her personal information and who believes there is an error or omission in the information may request the head of the public body that has the information in its custody or under its control to correct the information.
40(2)A request under subsection (1) shall be in writing.
40(3)Within 20 business days after receiving a request under subsection (1), the head of the public body shall
(a) make the requested correction and notify the applicant of the correction, or
(b) notify the applicant of the head’s refusal to correct the record and the reason for the refusal, that the request for correction has been added to the record, and that the individual has a right to file a complaint with the Ombud about the refusal under Part 5.
40(4)Subsection 11(3) applies with the necessary modifications in relation to the time limit referred to in subsection (3).
40(5)On correcting a record or adding a request for correction to a record under this section, the head of the public body shall, if practicable, notify any other public body or third party to whom the information has been disclosed during the year before the correction was requested that the correction has been made or a request for correction has been added.
40(6)On being notified under subsection (5) of a correction or request for correction, a public body shall make the correction or add the request for correction to any record of that information in its custody or under its control.
40(7)The head of a public body shall not require an applicant to pay a fee to the public body for a request made under this section.
2017, c.31, s.40; 2019, c.19, s.6
Retention of personal information
Repealed: 2017, c.31, s.41
2017, c.31, s.41
41Repealed: 2017, c.31, s.42
2017, c.31, s.42
Protection of personal information
Repealed: 2017, c.31, s.43
2017, c.31, s.43
42Repealed: 2017, c.31, s.44
2017, c.31, s.44
B
Restrictions on use and disclosure of personal information
General duty of public bodies
43(1)A public body shall not use or disclose personal information except as authorized under this Division.
43(2)Every use and disclosure by a public body of personal information must be limited to the minimum amount of information necessary to accomplish the purpose for which it is used or disclosed.
43(3)A public body shall limit the use and disclosure of personal information in its custody or under its control to those of its officers, directors, employees or agents who need to know the information to carry out the purpose for which the information was collected or received or to carry out a purpose authorized under section 44.
2013, c.47, s.7; 2017, c.31, s.45
Use of personal information
44A public body may use personal information only
(a) for the purpose for which the information was collected or compiled under subsection 37(1) or (2) or for a use consistent with that purpose,
(a.1) for the purpose for which the information was collected or compiled under section 37.1 or for a use consistent with that purpose,
(b) if the individual the information is about has consented to the use,
(c) for a purpose for which that information may be disclosed by the public body under section 46, 46.1, 47 or 48 or for a use approved under section 47,
(d) for the purpose for which that information was disclosed to the public body under section 46, 46.1, 47 or 48, or
(e) for the purpose of producing de-identified information that does not, either by itself or in combination with other information in the custody or under the control of the public body, permit an individual to be identified.
2017, c.29, s.2; 2017, c.31, s.46
Consistent purpose
45For the purpose of paragraph 44(a), a use of personal information is consistent with the purpose for which the information was collected or compiled if the use
(a) has a reasonable and direct connection to that purpose, or
(b) is necessary for performing the statutory duties of the public body that uses the information or necessary for providing a service, program or activity of the public body or a common or integrated service, program or activity.
2013, c.47, s.7; 2017, c.31, s.47
Disclosure of personal information
46(1)A public body may disclose personal information only
(a) if the individual the information is about has consented to the disclosure,
(a.1) for the purpose for which the information was collected or compiled under subsection 37(1) or (2) or for a use consistent with that purpose,
(b) for the purpose of complying with an Act of the Legislature or an Act of the Parliament of Canada or with a treaty, arrangement or agreement entered into between governments under an Act of the Legislature or an Act of the Parliament of Canada,
(b.1) subject to subsection (1.1), to the Minister of Health or a research data centre for the purpose of research conducted by the research data centre or by a researcher authorized by the research data centre,
(c) in accordance with an Act of the Legislature or an Act of the Parliament of Canada that authorizes or requires the disclosure,
(c.1) if the disclosure is necessary for the provision of a common or integrated service, program or activity, to
(i) an officer or employee of another public body,
(ii) an officer or employee of a non-public body, or
(iii) a custodian who is a health care provider, as those terms are defined in the Personal Health Information Privacy and Access Act,
(c.2) if the disclosure is necessary for the performance of the duties of the following persons respecting the common or integrated service, program or activity, to
(i) an officer or employee of another public body,
(ii) an officer or employee of a non-public body, or
(iii) a custodian who is a health care provider, as those terms are defined in the Personal Health Information Privacy and Access Act,
(d) for law enforcement purposes,
(e) if the public body is a law enforcement agency and the information is disclosed to
(i) another law enforcement agency in Canada, or
(ii) a law enforcement agency in a foreign country under an arrangement, written agreement, treaty or legislative authority,
(f) for the purpose of supervising an individual in the custody of or under the control or supervision of a correctional facility,
(g) if disclosure is necessary for the security of a correctional facility,
(h) for the purpose of obtaining or enforcing a support order under the Support Enforcement Act,
(i) if necessary to protect the mental or physical health or the safety of any individual or group of individuals,
(j) for the purpose of
(i) contacting a relative or friend of an individual who is injured, incapacitated or ill,
(ii) assisting in identifying a deceased individual, or
(iii) informing the representative or a relative of a deceased individual, or any other person it is reasonable to inform in the circumstances, of the individual’s death,
(k) to a relative of a deceased individual if the head of the public body reasonably believes that disclosure is not an unreasonable invasion of the deceased’s privacy,
(l) for the purpose of complying with a subpoena, warrant or order issued or made by a court, person or body with jurisdiction to compel the production of information or with a rule of court that relates to the production of information,
(m) for use in providing legal advice or legal services to the Province of New Brunswick or the public body,
(n) for use in existing or anticipated legal proceedings to which the Province of New Brunswick or the public body is a party,
(o) for the purpose of enforcing a legal right that the Province of New Brunswick or the public body has against any person,
(p) for the purpose of determining or verifying an individual’s suitability or eligibility for a program, service or benefit,
(q) for the purpose of
(i) determining the amount of or collecting a fine, debt, tax or payment owing by an individual to the Province of New Brunswick, to the federal government or to the public body, or to an assignee of any of them, or
(ii) making a payment,
(r) for the purpose of managing or administering personnel of the Province of New Brunswick or the public body,
(r.1) for the purpose of managing or administering a pension or other benefit program for personnel or former personnel of the Province of New Brunswick or the public body,
(s) by transfer to the Provincial Archives or to the archives of the public body for records management or archival purposes,
(t) to the Government of Canada in order to facilitate the monitoring, evaluation or auditing of shared cost programs or services,
(u) to the Auditor General for audit purposes,
(v) to an auditor for the purpose of an audit if the audit is required or authorized by an Act of the Legislature, or
(w) to an expert for the purposes of paragraph 28(1)(b).
(x) Repealed: 2017, c.31, s.48
46(1.1)A public body that intends to disclose personal information to a research data centre may disclose the personal information only if the research data centre has entered into the agreements referred to in section 47.1.
46(2)Repealed: 2017, c.31, s.48
2013, c.47, s.7; 2016, c.28, s.84.1; 2017, c.29, s.2; 2017, c.31, s.48
Mandatory disclosure of personal information for common or integrated services, programs or activities
2017, c.31, s.49
46.1(1)Despite the definition of “public body” in section 1, in this section “public body” means
(a) a portion of the public service specified in Part 1 of the First Schedule of the Public Service Labour Relations Act, or
(b) a portion of the public service specified in Part 3 of the First Schedule of the Public Service Labour Relations Act.
46.1(2)For greater certainty, in this section, “non-public body” means a person that is not a public body as defined in section 1.
46.1(3)Despite paragraphs 46(1)(c.1) and (c.2), a public body shall disclose personal information
(a) if disclosure is necessary for the provision of a common or integrated service, program or activity, to
(i) an officer or employee of another public body,
(ii) an officer or employee of a non-public body, or
(iii) a custodian who is a health care provider, as those terms are defined in the Personal Health Information Privacy and Access Act, or
(b) if disclosure is necessary for the performance of the duties of the following persons respecting the common or integrated service, program or activity, to
(i) an officer or employee of another public body,
(ii) an officer or employee of a non-public body, or
(iii) a custodian who is a health care provider, as those terms are defined in the Personal Health Information Privacy and Access Act.
2017, c.31, s.49
Agreements for common or integrated services, programs or activities
2017, c.31, s.49
46.2(1)Each public body that provides a common or integrated service, program or activity shall enter into a written agreement with the other public bodies and non-public bodies that are also providing that common or integrated service, program or activity.
46.2(2)A written agreement entered into under subsection (1) shall
(a) provide for the protection of the personal information disclosed for the purpose of the common or integrated service, program or activity against risks, including unauthorized access, use, disclosure or disposal and provide for the secure disposal of the information, and
(b) contain the information prescribed by regulation.
46.2(3)A non-public body that enters into a written agreement under subsection (1) shall comply with
(a) the duties imposed on the non-public body under the agreement, and
(b) the same requirements concerning the protection, retention and secure disposal of personal information that the public body is required to comply with under this Act and the regulations.
46.2(4)A written agreement entered into under this section may, subject to this Act and the regulations, contain additional requirements with respect to information practices.
2017, c.31, s.49
Data matching
2017, c.31, s.49
46.3A public body may perform data matching using personal information in its custody or control, provided there is authority for the collection, use or disclosure of the personal information being used for data matching or created as a result of data matching.
2017, c.31, s.49
Assessment required for other uses and disclosures
47(1)This section applies only to uses and disclosures not otherwise authorized under this Division.
47(2)A public body may only use or disclose personal information with the approval of the head of the public body if the public body
(a) proposes to use or disclose personal information in order to link information databases or match personal information in one information database with information in another,
(b) receives a request for disclosure of personal information for the purposes of legitimate research in the interest of science, learning or public policy, or
(c) receives a request for disclosure on a volume or bulk basis of personal information in a public registry or another collection of personal information.
47(3)If a proposal or request is made under subsection (2) by or to a department or a government body, the head shall refer it to the review committee for its advice.
47(4)If a proposal or request is made under subsection (2) by or to a local public body, the head may refer it to the review committee for its advice.
47(5)The review committee shall assess a proposal or request referred to it under this section and provide advice to the head of the public body about the matters referred to in subsection (6).
47(6)The head of the public body may approve the proposal or request made under subsection (2) only if
(a) any advice from the review committee under subsection (3) has been received and considered,
(b) the head is satisfied that
(i) the purpose of the proposal or request cannot reasonably be accomplished unless the personal information is provided in a form that identifies individuals,
(ii) it is unreasonable or impractical to obtain consent from the individuals the personal information is about, and
(iii) the use or disclosure is not likely to harm the individuals the personal information is about and the benefits to be derived from the use or disclosure are clearly in the public interest,
(c) the head has approved conditions relating to
(i) the use of the personal information,
(ii) the protection of the personal information, including security and confidentiality,
(iii) the removal or destruction of individual identifiers, if appropriate, at the earliest reasonable time,
(iv) any subsequent use or disclosure of the personal information in a form that identifies individuals without the express written authorization of the public body, and
(d) the recipient of the personal information has entered into a written agreement to comply with the approved conditions.
Collection, use and disclosure of personal information by a research data centre
2017, c.29, s.2
47.1(1)If a research data centre intends to collect, use or disclose personal information under this Act, the research data centre shall have entered into
(a) a written agreement with the Province with respect to its establishment as a research data centre and the approval of research projects, and
(b) a written agreement with the public body against risks, including unauthorized access, use, disclosure or disposal and providing for the secure disposal of the information, with respect to the sharing of personal information in the custody or under the control of the public body.
47.1(2)The Minister of Health and a research data centre may perform data matching for the purpose of research referred to in paragraph 46(1)(b.1) using personal information disclosed to the Minister of Health or the research data centre, as the case may be, under that paragraph.
2017, c.29, s.2
Disclosure of records more than 100 years old
48 Despite any provision of this Act, the head of a public body may disclose personal information in a record that is more than 100 years old.
C
Information practices
2017, c.31, s.50
Duty of public bodies to establish information practices
2017, c.31, s.50
48.1(1)A public body shall establish information practices to ensure compliance with this Act and shall protect personal information by making reasonable security arrangements against unauthorized access, use, disclosure or disposal, in accordance with the regulations.
48.1(2)If a public body uses personal information about an individual to make decisions that directly affects the individual, the public body shall, subject to any other Act of the Legislature,
(a) retain the personal information for a reasonable period of time so that the individual to whom the information relates has a reasonable opportunity to obtain access to it, and
(b) establish a written information practice to that effect including any additional requirements prescribed by regulation.
48.1(3)A regulation prescribing requirements respecting information practices may include any terms, conditions, prohibitions or restrictions relating to the collection, use, disclosure, retention, correction or disposal of personal information.
48.1(4)A public body shall designate an officer or employee of the public body or an officer or employee of another public body to
(a) assist in ensuring the public body’s compliance with this Act,
(b) respond to inquiries about the public body’s information practices,
(c) make information about the public body’s information practices available to the public, and
(d) receive complaints from the public about any alleged contravention of this Act or the regulations under this Act by the public body.
2017, c.31, s.50
4
OFFICE OF THE ACCESS TO INFORMATION AND PRIVACY COMMISSIONER
Repealed: 2016, c.53, s.27
2016, c.53, s.27
Access to Information and Privacy Commissioner
Repealed: 2016, c.53, s.27
2016, c.53, s.27
49Repealed: 2016, c.53, s.27
2013, c.1, s.8; 2016, c.53, s.27
Ombudsman as Commissioner
Repealed: 2016, c.53, s.27
2016, c.53, s.27
50Repealed: 2016, c.53, s.27
2016, c.53, s.27
Salary and benefits
Repealed: 2016, c.53, s.27
2016, c.53, s.27
51Repealed: 2016, c.53, s.27
2013, c.1, s.8; 2013, c.44, s.42; 2016, c.53, s.27
Eligibility for appointment
Repealed: 2016, c.53, s.27
2016, c.53, s.27
52Repealed: 2016, c.53, s.27
2016, c.53, s.27
Oath of Commissioner
Repealed: 2016, c.53, s.27
2016, c.53, s.27
53Repealed: 2016, c.53, s.27
2016, c.53, s.27
Resignation of Commissioner
Repealed: 2016, c.53, s.27
2016, c.53, s.27
54Repealed: 2016, c.53, s.27
2013, c.1, s.8; 2016, c.53, s.27
Removal or suspension of Commissioner
Repealed: 2016, c.53, s.27
2016, c.53, s.27
55Repealed: 2016, c.53, s.27
2013, c.1, s.8; 2016, c.53, s.27
Acting Commissioner
Repealed: 2016, c.53, s.27
2013, c.1, s.8; 2016, c.53, s.27
56Repealed: 2016, c.53, s.27
2013, c.1, s.8; 2016, c.53, s.27
Filling vacancies
Repealed: 2016, c.53, s.27
2016, c.53, s.27
57Repealed: 2016, c.53, s.27
2013, c.1, s.8; 2016, c.53, s.27
Staff of the Office of the Access to Information and Privacy Commissioner
Repealed: 2016, c.53, s.27
2016, c.53, s.27
58Repealed: 2016, c.53, s.27
2013, c.44, s.42; 2016, c.53, s.27
Delegation of powers
Repealed: 2016, c.53, s.27
2016, c.53, s.27
59Repealed: 2016, c.53, s.27
2016, c.53, s.27
Powers and duties
Repealed: 2016, c.53, s.27
2016, c.53, s.27
60Repealed: 2016, c.53, s.27
2016, c.53, s.27
Powers under the Inquiries Act
Repealed: 2016, c.53, s.27
2016, c.53, s.27
61Repealed: 2016, c.53, s.27
2016, c.53, s.27
Right of entry
Repealed: 2016, c.53, s.27
2016, c.53, s.27
62Repealed: 2016, c.53, s.27
2016, c.53, s.27
Commissioner’s report
Repealed: 2016, c.53, s.27
2016, c.53, s.27
63Repealed: 2016, c.53, s.27
2016, c.53, s.27
Protection from legal action
Repealed: 2016, c.53, s.27
2016, c.53, s.27
64Repealed: 2016, c.53, s.27
2016, c.53, s.27
4.1
POWERS AND DUTIES OF THE OMBUD
2016, c.53, s.27; 2019, c.19, s.6
Powers and duties
2016, c.53, s.27
64.1(1)In addition to the powers conferred or duties imposed under Part 5, the Ombud may
(a) make recommendations with regard to this Act and the regulations,
(b) inform the public about this Act,
(c) receive comments from the public about the administration of this Act,
(d) comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies,
(e) comment on the implications for protection of privacy of
(i) using or disclosing personal information for record linkage, or
(ii) using information technology in the collection, storage, use or transfer of personal information,
(f) bring to the attention of the head of a public body any failure to fulfil the duty to assist an applicant,
(f.1) receive and investigate complaints from the public related to the collection, use and disclosure of personal information under Part 3 and make any recommendations as a result,
(g) conduct audits, on the Ombud’s own initiative or on request and in accordance with the regulations, if any, in order to evaluate the level of conformity with Part 3, or
(h) make recommendations, on the Ombud’s own initiative or on request, to the head of a public body or the responsible Minister of the Crown about the administration of this Act.
64.1(2)The Ombud shall review any matter referred to the Ombud by the Executive Council.
2016, c.53, s.27; 2017, c.31, s.74; 2019, c.19, s.6
Right of entry
2016, c.53, s.27
64.2Despite any other Act of the Legislature or any privilege of the law of evidence, in exercising powers or performing duties under this Act, the Ombud has the right
(a) to enter any office of a public body and, subject to section 70, examine and make copies of any record in the custody of the public body, and
(b) to converse in private with any officer or employee of a public body.
2016, c.53, s.27; 2019, c.19, s.6
Ombud’s report
2016, c.53, s.27; 2019, c.19, s.6
64.3The Ombud shall report annually to the Legislative Assembly on the exercise of his or her functions under this Act.
2016, c.53, s.27; 2019, c.19, s.6
5
REVIEW
Referral to Court of Queen’s Bench
65(1)The following persons may refer, according to the regulations, a matter to a judge of The Court of Queen’s Bench of New Brunswick for review:
(a) an applicant who requested access to a record under Part 2, in relation to a decision, an act or an omission of a head of a public body in respect of the request, or
(b) a third party who is given notice under section 36 of a decision of a head of a public body to give access to a record and the third party is not satisfied with the decision.
65(2)If a person refers the matter to a judge of The Court of Queen’s Bench of New Brunswick under subsection (1), the person may not file a complaint with the Ombud under section 67 and the Ombud may not act in the matter.
65(3)A matter referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection (1) shall be filed
(a) in the case of an applicant, within 40 business days after
(i) the date the applicant was notified of the decision of the head of the public body, or
(ii) the date the applicant became aware of the act or the omission of the head of the public body, and
(b) in the case of a third party, within 15 business days after the date the notice referred to in section 36 is given.
2017, c.31, s.51; 2019, c.19, s.6
Decision of The Court of Queen’s Bench
66(1)If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1), the judge shall hold a hearing and,
(a) if the person who referred the matter is the applicant
(i) if the head of a public body refused a request for access to a record, in whole or in part, the judge may
(A) order the head of the public body to grant the request in whole or in part, or
(B) confirm the head of a public body’s decision to refuse a request for access to a record, in whole or in part, and
(ii) if the head of a public body failed to reply to a request for access to a record, the judge may order the head of the public body to grant or to refuse the request in whole or in part,
(b) if the person who referred the matter is a third party who was given a notice under section 36, the judge may order the head of the public body to grant access to the record in whole or in part or to refuse access to the record, or
(c) may make any other order that is, in the opinion of the judge, necessary.
66(2)A copy of the decision of the judge of The Court of Queen’s Bench of New Brunswick shall be sent to the person who referred the matter for review and to the head of the public body.
66(3)No appeal lies from the decision of the judge of The Court of Queen’s Bench of New Brunswick under subsection (1).
2017, c.31, s.52
Complaint filed with the Ombud
2019, c.19, s.6
67(1) The following persons may file, according to the regulations, a complaint with the Ombud:
(a) an applicant,
(i) if the applicant requested access to a record under Part 2 and is not satisfied with a decision, an act or an omission of a head of a public body in relation to the request,
(ii) if the applicant is not satisfied with the decision of a head of a public body to extend a time limit under subsection 11(3),
(iii) if the applicant is not satisfied with the decision of a head of a public body to consider a request to be abandoned under subsection 12(1),
(iv) if the applicant is not satisfied with the decision of a head of a public body to refuse a request to correct an error or omission in the applicant’s personal information, or
(b) a third party, if the third party is given notice under section 36 of a decision of a head of a public body to give access to a record and the third party is not satisfied with the decision.
67(2)Subject to section 75, if a person has filed a complaint with the Ombud under subsection (1), the person may not refer the matter under subsection 65(1) to a judge of The Court of Queen’s Bench of New Brunswick for review.
67(3)A complaint to the Ombud under subsection (1) shall be in writing and filed
(a) in the case of an applicant, within 40 business days after
(i) the date the applicant was notified of the decision of the head of the public body, or
(ii) the date the applicant became aware of the act or the omission of the head of the public body, and
(b) in the case of a third party, within 15 business days after the date the notice referred to in section 36 is given.
67(4)The Ombud may extend the period of time referred to in subsection (3).
67(5)If the head of a public body fails to respond in time to a request for access to a record, the failure is to be treated as a decision to refuse access, in which case the complaint shall be filed with the Ombud within 40 business days after the expiry of the time for responding to the request.
67(6)As soon as the circumstances permit after receiving a complaint, the Ombud shall
(a) in the case of a complaint by an applicant, notify the head of the public body and provide the head with a copy of the complaint, or
(b) in the case of a third party, notify the head of the public body and provide the head, as well as the applicant, with a copy of the complaint.
2017, c.31, s.53; 2019, c.19, s.6
Investigation
68(1)Subject to subsection 65(2) and section 69, on receiving a complaint the Ombud shall investigate the complaint or shall take steps to resolve the complaint informally under subsection (2).
68(2)The Ombud may take any steps the Ombud considers appropriate to resolve a complaint informally to the satisfaction of the parties and in a manner consistent with the purposes of this Act.
68(3)If the Ombud cannot resolve a complaint within 45 business days after the commencement of the informal resolution process referred to in subsection (2) or within the extended time limit under subsection (4), as the case may be, the Ombud shall investigate the complaint and shall prepare the report referred to in section 73.
68(4)The Ombud may only extend the time limit in subsection (3) with the consent of the applicant or the third party, as the case may be, and the head of the public body.
2017, c.31, s.54; 2019, c.19, s.6
Refusal to investigate complaint
69(1)The Ombud may, in his or her discretion, refuse to or cease to investigate a matter in any of the following circumstances:
(a) the complaint is trivial, frivolous, vexatious or not made in good faith;
(b) having regard to all the circumstances of the case, further investigation is unnecessary;
(c) the time period within which the complaint could be made is expired; or
(d) the person who made the complaint does not have a sufficient personal interest in the matter.
69(2)The Ombud shall inform the person who made the complaint and the head of the public body, in writing, of his or her decision not to investigate the decision of the head of the public body or to cease an investigation in relation to a matter and the reasons for the Ombuds’s decision.
2019, c.19, s.6
Production of records
70(1)With the exception of Executive Council confidences and any document that contains information that is subject to solicitor-client privilege, the Ombud may require any record in the custody or under the control of a public body that the Ombud considers relevant to an investigation to be produced to the Ombud and may examine any information in a record, including personal information.
70(2)The Ombud may review the records referred to in subsection (1) in private without the presence of any person.
70(3)Despite any other Act of the Legislature or any privilege of the law of evidence, a public body shall produce to the Ombud within 10 business days any record or a copy of a record required under this section,
70(4)If a public body is required to produce a record under this section and it is not practicable to make a copy of it, the head of the public body may require the Ombud to examine the original at its site.
2017, c.31, s.55; 2019, c.19, s.6
Representations to the Ombud
2019, c.19, s.6
71(1)During an investigation, the Ombud shall give the following persons an opportunity to make representations to the Ombud:
(a) if the person who made the complaint is the applicant, the applicant and the head of the public body concerned;
(b) if the person who made the complaint is a third party who is given notice of a decision under section 36, the third party, the applicant and the head of the public body concerned; and
(c) any other person the Ombud considers appropriate.
71(2)Despite the opportunity to make representations, the persons referred to in subsection (1) shall not be entitled to be present during an investigation or to have access to or to comment on representations made to the Ombud by another person.
71(3)The Ombud may decide whether representations are to be made orally or in writing.
71(4)Representations may be made to the Ombud through counsel or an agent.
2019, c.19, s.6
Time limit for investigation
72An investigation shall be completed and a report made under section 73 within 90 business days after a complaint is filed, unless the Ombud
(a) notifies the person who filed the complaint, the head of the public body and any other person who has made representations to the Ombud that the Ombud is extending that period, and
(b) gives an anticipated date for providing the report.
2017, c.31, s.56; 2019, c.19, s.6
Report
73(1)On completing the investigation of a complaint, the Ombud shall prepare a report containing the Ombud’s findings and shall make any of the following recommendations:
(a) if the person who filed the complaint is the applicant
(i) recommend that the head of a public body
(A) grant, in whole or in part, the request for access to a record,
(B) grant a request to correct personal information in its custody or under its control, or
(C) reconsider a request for information that was considered to be abandoned under subsection 12(1),
(ii) confirm the head of a public body’s decision
(A) to refuse a request for access to a record, in whole or in part,
(B) to refuse a request to correct personal information in its custody or under its control, or
(C) to consider a request for information to be abandoned under subsection 12(1), or
(iii) if the head of a public body failed to reply to the request for access to a record, recommend that the head of the public body grant or refuse the request in whole or in part, or
(b) if the person who filed the complaint is a third party who was given a notice under section 36,
(i) recommend that the head of a public body grant access to the record in whole or in part or to refuse access to the record, or
(ii) confirm the head of the public body’s decision to grant a request for access to a record in whole or in part.
73(2)The Ombud shall give a copy of the report to the head of the public body and,
(a) if the person who filed the complaint is the applicant, to the applicant, or
(b) if the person who filed the complaint is a third party who was given a notice under section 36, to the third party.
2017, c.31, s.57; 2019, c.19, s.6
Complying with the recommendation
74(1)On reviewing the recommendation of the Ombud, the head of the public body shall
(a) accept the recommendation of the Ombud, or
(b) not accept the recommendation of the Ombud.
74(2)Within 20 business days after receiving the Ombud’s report under subsection 73(2), the head of the public body shall make a decision under subsection (1), and shall give a written notice of the decision to the applicant or the third party, as the case may be, and shall forward a copy of the decision to the Ombud.
74(2.1) A notice referred to in subsection (2) shall include the reasons for the decision and, if applicable, inform the applicant or third party of his or her right to appeal and the time limit for exercising the right to appeal.
74(3)If the head of the public body accepts the recommendation in the Ombud’s report, the head of the public body shall comply with the recommendation within 20 business days after receiving the report.
74(4)If the head of a public body fails to notify the applicant or the third party under subsection (2) within 20 business days after making his or her decision, the failure shall be treated as a decision not to accept the recommendation of the Ombud.
2017, c.31, s.58; 2019, c.19, s.6
Right to appeal
75(1)If the head of the public body decides not to accept the recommendation of the Ombud, the person who made the complaint may appeal the matter, in accordance with the regulations, to a judge of The Court of Queen’s Bench of New Brunswick.
75(2)If the person does not exercise his or her right to appeal under subsection (1), the Ombud may, on his or her own motion, appeal the matter, in accordance with the regulations, to a judge of The Court of Queen’s Bench of New Brunswick.
75(3)The head of the public body shall notify the person who made the complaint of the head of the public body’s decision not to accept the recommendation of the Ombud, the person’s right to appeal the decision and the time limit for the appeal.
75(4)Section 66 applies with the necessary modifications in relation to an appeal under subsection (1).
2019, c.19, s.6
Costs
76(1)If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1) or appealed to a judge of The Court of Queen’s Bench of New Brunswick under section 75, the judge shall award costs in favour of the person who referred or appealed the matter
(a) where the person is successful, and
(b) where the person is not successful, if the judge considers it to be in the public interest.
76(2)Despite subsection (1), a judge of The Court of Queen’s Bench of New Brunswick may award costs in favour of the public body if the judge considers that the matter for review or appeal is frivolous or vexatious or amounts to an abuse of the right to access.
6
GENERAL PROVISIONS
Privacy Assessment Review Committee
77The Minister shall establish, in accordance with the regulations, a Privacy Assessment Review Committee for the purposes of section 47.
Giving notice under this Act
78When this Act requires a notice or document to be given to a person, it is to be given
(a) by sending it to that person by prepaid mail to the person’s last known address,
(b) by personal service,
(c) by substituted service if so authorized by the Ombud,
(d) by electronic transmission or telephone transmission of a facsimile of the notice or document, or
(e) by any other means prescribed by the regulations.
2019, c.19, s.6
Exercising rights of another person
79Any right or power conferred on an individual by this Act may be exercised
(a) by any person, other than the Ombud, with written authorization from the individual to act on the individual’s behalf,
(b) by a committee or person appointed for the individual under the Infirm Persons Act, if the exercise of the right or power relates to the powers and duties of the committee or the person,
(c) by an attorney acting under a power of attorney granted by the individual, if the exercise of the right or power relates to the powers and duties conferred by the power of attorney,
(d) by the parent or guardian of a minor if, in the opinion of the head of the public body concerned, the exercise of the right or power by the parent or guardian would not constitute an unreasonable invasion of the minor’s privacy, or
(e) if the individual is deceased, by the individual’s personal representative if the exercise of the right or power relates to the administration of the individual’s estate.
2019, c.19, s.6
Fees
80(1)The head of a public body may require an applicant to pay to the public body fair and reasonable fees for making an application and for search, preparation, copying and delivery services as provided for in the regulations.
80(2)The head of a public body shall not require an applicant to pay to the public body a fee if the applicant is requesting access to personal information about himself or herself.
80(3)If an applicant is required to pay fees under subsection (1), other than a fee for making an application, the head of a public body shall give the applicant an estimate of the total fees payable before providing the service.
80(4)The public body shall not be bound to give an estimate to the applicant under subsection (3) if the fees, other than a fee for making an application, are not greater than the amount prescribed by regulation.
80(5)The applicant has up to 20 business days from the day the estimate is given to indicate if it is accepted or to modify the request in order to change the amount of the fees, after which the application is considered abandoned.
80(6)When an estimate is given to an applicant under this section, the time within which the head is required to respond under subsection 11(1) is suspended until the applicant notifies the head that the applicant wishes to proceed with the application.
80(7)The head of a public body may waive the payment of all or part of a fee in accordance with the regulations, if any.
80(8)The search, preparation, copying and delivery fees referred to in subsection (1) must not exceed the actual costs of the services.
2017, c.31, s.60
Immunity
81No action lies and no proceeding may be brought against the Province of New Brunswick, a public body, the head of a public body, an elected official of a local public body or any person acting for or under the direction of the head of a public body for damages resulting from
(a) the disclosure of or failure to disclose, in good faith, all or part of a record or information under this Act or any consequences of that disclosure or failure to disclose, or
(b) the failure to give a notice required by this Act if reasonable care is taken to give the required notice.
Offences
82(1)No person shall
(a) collect, use or disclose personal information in wilful contravention of this Act,
(b) attempt to gain or gain access to personal information in wilful contravention of this Act,
(c) knowingly make a false statement to the Ombud or another person in the performance of the duties or the exercise of the powers of the Ombud or the other person under this Act or knowingly mislead or attempt to mislead the Ombud or the other person,
(d) obstruct the Ombud or another person in performing duties or exercising powers under this Act,
(e) destroy a record or erase information in a record that is subject to this Act, or direct another person to do so, with the intent to evade a request for access to the record,
(f) alter, falsify, conceal or destroy any record or part of any record, or direct another person to do so, with an intent to evade a request for access to the record, or
(g) wilfully fail to comply with an investigation of the Ombud.
82(1.1)A person under subsection (1) includes:
(a) a non-public body that has entered into a written agreement under subsection 46.2(1); and
(b) an employee of a non-public body referred to in paragraph (a).
82(2)Any person who violates or fails to comply with paragraph (1)(a), (b), (c), (d), (e), (f) or (g) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.
82(3)No prosecution for an offence under this Act shall be commenced after 2 years from the date of the discovery of the alleged offence.
2017, c.31, s.61; 2019, c.19, s.6
Defence
83 No person commits an offence under any other Act of the Legislature by reason of complying with a request or requirement to produce a record or provide information or evidence to the Ombud, or a person acting for or under the direction of the Ombud, under this Act.
2019, c.19, s.6
Burden of proof
84(1)In any proceeding under this Act, the burden is on the head of the public body to prove that the applicant has no right of access to the record or part of the record.
84(2)Despite subsection (1), if the proceeding under this Act concerns a decision to disclose or to refuse to disclose, in whole or in part, a record containing personal information about a third party, the burden is on the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s privacy.
84(3)Despite subsection (1), if the proceeding under this Act concerns a decision to disclose, in whole or in part, a record containing information that is not personal information about a third party, the burden is on the third party to prove that the applicant has no right of access to the record or part of the record.
2017, c.31, s.62
Delegation by the Minister
2015, c.44, s.108; 2016, c.37, s.169
84.1(1)The Minister may delegate any of the Minister’s powers or duties under this Act to another Minister of the Crown.
84.1(2)A delegation under subsection (1) shall be in writing.
84.1(3)In a delegation under this section, the Minister shall establish the manner in which the Minister of the Crown is to exercise the delegated authority.
2015, c.44, s.108; 2016, c.37, s.169
Administration
2015, c.44, s.108
84.2The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.
2015, c.44, s.108
Regulations
85The Lieutenant-Governor in Council may make regulations
(a) designating public registries for the purpose of the definition “public registry” in section 1;
(a.1) prescribing requirements regarding the collection, use, disclosure, retention, correction or disposal of personal information for the purposes of paragraph (a) of the definition “information practices” in section 1, including any terms, conditions, prohibitions and restrictions relating to that collection, use, disclosure, retention, correction or disposal;
(a.2) prescribing requirements regarding administrative, technical and physical safeguards and practices for the purposes of paragraph (b) of the definition “information practices” in section 1;
(b) prescribing information to be included in a request for access to a record under Part 2;
(c) establishing the method of examining or providing access to a record for the purposes of paragraph 16(1)(b);
(d) respecting procedures to be followed in making, transferring, and responding to requests under Part 2;
(e) Repealed: 2017, c.31, s.63
(f) respecting the giving of consent by individuals under this Act;
(g) Repealed: 2017, c.31, s.63
(h) respecting written agreements for the purposes of sections 46.2, and 47;
(h.1) prescribing the information required to be included in a written agreement under section 46.2;
(h.2) prescribing requirements to be imposed on public bodies and non-public bodies that are parties to a written agreement under section 46.2 that withdraw from the agreement, including, without limitation, prohibiting further use or disclosure of any personal information disclosed to the public body or non-public body under the agreement;
(i) Repealed: 2017, c.31, s.63
(j) Repealed: 2016, c.53, s.27
(k) respecting audits for the purposes of paragraph 64.1(1)(g);
(l) respecting the appointment of members of the review committee under section 77 and governing the duties and powers of the review committee and all related matters;
(m) prescribing the form and manner of applications, referrals or appeals under this Act;
(n) prescribing the method of giving notices or documents under section 78;
(o) respecting fees to be paid under this Act and providing for circumstances in which fees may be waived in whole or in part;
(p) prescribing an amount for the purposes of subsection 80(4);
(q) respecting the kind of information that public bodies must provide to the Minister of the Crown responsible;
(r) respecting forms for the purposes of this Act;
(s) defining any word or expression used in this Act but not defined in this Act;
(t) prescribing the manner in which a notice or a record shall be given to a person under this Act;
(u) respecting all other matters necessary to carry out the provisions of this Act.
2016, c.53, s.27; 2017, c.31, s.63
Amendments to Schedule A
86The Lieutenant-Governor in Council may add a body or head to Schedule A but may not amend or remove a body or a head from Schedule A.
Act to be reviewed every four years
2017, c.31, s.64
86.1(1)Within four years after the commencement of this section, the Minister shall undertake a comprehensive review of the operation of this Act and shall, within one year after the review is undertaken or within a longer time that the Legislative Assembly allows, submit a report on the review to the Legislative Assembly.
86.1(2)A review under subsection (1) shall be undertaken every four years.
2017, c.31, s.64
7
CONSEQUENTIAL AMENDMENTS, REVIEW, REPEAL AND COMMENCEMENT
Amendment to the Archives Act
87Section 1 of the Archives Act, chapter A-11.1 of the Acts of New Brunswick, 1977, is amended in the definition “department” by repealing paragraph (a.1) and substituting the following:
(a.1) a public body as defined in the Right to Information and Protection of Privacy Act, excluding the following public bodies:
(i) The University of New Brunswick;
(ii) Université de Moncton;
(iii) St. Thomas University;
(iv) Mount Allison University;
Amendment to the Child and Youth Advocate Act
88(1)Subsection 5(2) of the Child and Youth Advocate Act, chapter C-2.7 of the Acts of New Brunswick, 2007, is repealed and the following is substituted:
5(2)Notwithstanding subsection (1), the Advocate may also hold the office of Ombudsman and the office of the Access to Information and Privacy Commissioner.
88(2)Subsection 11(5) of the Act is repealed and the following is substituted:
11(5)The Advocate may share employees and the cost of such employees with the Office of the Ombudsman and the Office of the Access to Information and Privacy Commissioner.
Amendment to the Clean Air Act
89Subsection 12(2) of the Clean Air Act, chapter C-5.2 of the Acts of New Brunswick, 1997, is amended by striking out “to which there is no right under the Right to Information Act” and substituting “that is, in the opinion of the Minister, confidential”.
Amendment to the Crown Lands and Forest Act
90Subsection 55.1(2) of the Crown Lands and Forests Act, chapter C-38.1 of the Acts of New Brunswick, 1980, is amended by striking out “under the Right to Information Act”.
Amendment to the Education Act
91Section 55 of the Education Act, chapter E-1.12 of the Acts of New Brunswick, 1997, is amended by striking out “Notwithstanding the Right to Information Act, the Minister,” and substituting “The Minister,”.
Amendment to the Historic Sites Protection Act
92Section 7.2 of the Historic Sites Protection Act, chapter H-6 of the Revised Statues, 1973, is repealed and the following is substituted:
No disclosure
7.2The Minister may refuse to disclose information about the location of a site that, in the opinion of the Minister, is or may be of historical or anthropological significance.
Amendment to the Ombudsman Act
93(1)Subsection 5(2) of the Ombudsman Act, chapter O-5 of the Revised Statutes, 1973, is repealed and the following is substituted:
5(2)Notwithstanding subsection (1), the Ombudsman may also hold the office of Child and Youth Advocate and office of the Access to Information and Privacy Commissioner.
93(2)Subsection 8(3) of the Act is repealed and the following is substituted:
8(3)The Ombudsman may share employees and the cost of such employees with the Office of the Child and Youth Advocate and the Office of the Access to Information and Privacy Commissioner.
Amendment to the Pension Benefits Act
94Subsection 28(1) of the Pension Benefits Act, chapter P-5.1 of the Acts of New Brunswick, 1987, is amended by striking out “under the Right to Information Act”.
Amendment to the Provincial Court Act
95Subsection 6.12(3) of the Provincial Court Act, chapter P-21 of the Revised Statutes, 1973, is repealed and the following is substituted:
Report on disposition of matter
6.12(3)A report received by the Minister under subsection (2) is not subject to disclosure.
Amendment to the Statistics Act
96Subsection 15(1) of the Statistics Act, chapter S-12.3 of the Acts of New Brunswick, 1984, is amended by striking out “or under the Right to Information Act”.
Review of this Act
Repealed: 2017, c.31, s.65
2017, c.31, s.65
97Repealed: 2017, c.31, s.66
2017, c.31, s.66
Repeal of the Protection of Personal Information Act and regulation
98(1)The Protection of Personal Information Act, chapter P-19.1 of the Acts of New Brunswick, 1998, is repealed.
98(2)New Brunswick Regulation 2001-14 under the Protection of Personal Information Act is repealed.
Repeal of the Right to Information Act and regulation
99(1)The Right to Information Act, chapter R-10.3 of the Acts of New Brunswick, 1978, is repealed.
99(2)New Brunswick Regulation 85-68 under the Right to Information Act is repealed.
Commencement
100This Act or any provision of this Act comes into force on a day or days to be fixed by proclamation.
SCHEDULE A
Government bodies
1The following bodies are designated as government bodies and the following persons are designated as their respective heads:
Government body
Head
Algonquin Properties Limited
Chair
District Education Council
Chair
Opportunities New Brunswick
Chief Executive Officer
Recycle New Brunswick
Chief Executive Officer
School
District Superintendent
Service New Brunswick
Chief Executive Officer
O.C. 2010-385; 2011, c.24, s.39; O.C. 2012-372; 2015, c.2, s.69; 2015, c.44, s.108
N.B. This Act, except s.1 as it relates to the definition “local government body”, paragraphs (a)-(f.2), (h) and (i) of the definition “educational body” and paragraph (c) of the definition “local public body”, was proclaimed and came into force September 1, 2010.
N.B. Section 1, as it relates to paragraphs (c)-(f), (f.1), (f.2) and (h) of the definition “educational body” and paragraphs (a)-(c) of the definition “local government body” and paragraph (c) of the definition “local public body”, was proclaimed and came into force September 1, 2012.
N.B. Section 1, as it relates to paragraphs (a) and (b) of the definition “educational body”, was proclaimed and came into force October 1, 2012.
N.B. Section 1, as it relates to paragraph (d) of the definition “local government body”, was proclaimed and came into force April 1, 2013.
N.B. This Act is consolidated to June 14, 2019.