The Ontario Legislature recently passed amendments to Ontario's Freedom of Information and Protection of Privacy Act ("FIPPA") and the Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA") that will impact the records retention policies of covered provincial and municipal institutions and make it an offence to alter, conceal or destroy a record with the intention of denying a right under either Act to access a record or information it contains.
A new section 10.1 – measures to ensure preservation of records – is added to FIPPA and provides that:
every head of an institution shall ensure that reasonable measures respecting the records in the custody or under the control of the institution are developed, documented and put into place to preserve the records in accordance with any recordkeeping or records retention requirements, rules or policies, whether established under an Act or otherwise, that apply to the institution.
The equivalent provisions of MFIPPA is s. 4.1
Subsection 61(1) of FIPPA is amended by adding to the list of offences under paragraph (c.1), altering, concealing or destroying a record, or causing any other person to do so, with the intention of denying a right under FIPPA to access the record or the information contained in the record.
The offence is one of intention and requires that the altering, concealing or destroying of the record be for the purpose of denying a right of access. Therefore, records destroyed in the ordinary course of business would not be subject to an offence. This means that institutions should review their records retention policies and ensure that staff are aware of the need to preserve records and to put a hold on any records destruction, even destruction in the normal course of business, once a request for access is received.
A prosecution in respect of the new offence must be commenced within 2 years of the day evidence of the offence was discovered – new subsection 61(4).
The equivalent provisions in MFIPPA will be 48(1)(c.1) and 48(4).
The amendments, found in Bill 179, Public Sector and MPP Accountability and Transparency Act, 2014, will come into force at a future date, on Royal Proclamation. These amendments were in response to a Report of the Ontario Information and Privacy Commissioner, entitled "Deleting Accountability: Record Management Practices of Political Staff – A Special Investigation Report". That Report was the result of an investigation into the allegation that political staff in the office of the former Minister of Energy had deleted emails related to the cancellation and relocation of gas plants.
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