Bulletin Number 11: Paramountcy

Revised September 2004

PDF Version (pdf)

• Introduction
• Background
• When is paramountcy not required?
• When is paramountcy required?
• Paramountcy and federal legislation
• Determining which legislation is paramount
• Proposing a paramountcy over the FOIP Act:
• Considerations
• Process
• Records disposition considerations

Where there is an inconsistency or conflict between the Freedom of Information and Protection of Privacy (FOIP) Act and another enactment, the principle of paramountcy determines which law will prevail or take precedence. For example, paramountcy would determine whether the right of access under the FOIP Act, or an obligation of confidentiality under another enactment, would prevail.

Section 5 of the FOIP Act states that, if a provision of the FOIP Act is inconsistent or in conflict with a provision of another enactment, the provision of the FOIP Act prevails unless another act or a regulation under the FOIP Act expressly provides that the other act or regulation, or a provision of it, prevails over the FOIP Act. This section provides the means for resolving a conflict or inconsistency in situations where compliance with one law would involve a breach of the other (see IPC Order 99-034).

The purpose of this Bulletin is to explain: the concept of paramountcy, the circumstances in which another act may need to prevail over the FOIP Act, how a FOIP Coordinator should approach a request under the FOIP Act when paramountcy may be involved, and the process for legislative planners to follow when their public body is considering proposing a new paramountcy.

Initially, there was a provision in section 5 of the FOIP Act that required the head of a public body to refuse to disclose information to an applicant if the disclosure was prohibited or restricted by another enactment of Alberta.

When that provision was repealed in 1997, the paramountcy of certain statutes and regulations, or specific sections of those statutes and regulations, was established in sections 15, 16 and 17 of the FOIP Regulation, as provided for in section 5 of the Act.

Establishing a paramountcy in a regulation, rather than in a statute, is rare. However, it was necessary to do this in the FOIP Regulation because of time constraints. In some cases, the enabling act that was to be paramount was not scheduled for review or amendment until after 1997. It was anticipated that, in time, most of the remaining paramountcies, and any new paramountcies, would be established in a ministry’s own statute.

Many of the current paramountcies in sections 15 and 17 of the FOIP Regulation contain a sunset clause causing them to expire on a set date. Prior to the expiry date, the Minister responsible for the paramount legislation will assess any continuing need for paramountcy, and, if needed, put express wording to that effect in the relevant ministry statute.

A paramountcy is not required if there is no conflict or inconsistency between a provision of another statute and a provision of the FOIP Act. For example, an act may be silent on whether personal information may be disclosed, in which case there is no conflict and the FOIP Act would apply to disclosure of the information.

The issue of paramountcy also does not arise if the other act or regulation requires or authorizes the disclosure of personal information. Section 40(1)(f) of the FOIP Act operates to permit the disclosure of personal information if disclosure is authorized or required by another enactment. It is neither necessary nor desirable to establish paramountcies "out of an abundance of caution," "just in case" the authorization to disclose personal information is contested.

The following examples illustrate how a requirement or authorization to disclose personal information under another enactment operates in conjunction with the FOIP Act.

• Section 4 of the Child Welfare Act requires any person to report to the Director of Child Welfare when a child is in need of protection.
  


• In accordance with section 23 of the School Act, the student record of a child can be reviewed by the child’s parent or guardian.

In both of these situations, there is no conflict or inconsistency between the FOIP Act and the other statute. The personal information in question can be disclosed in accordance with section 4 of the Child Welfare Act or section 23 of the School Act and also in accordance with section 40(1)(f) of the FOIP Act. It is not necessary to consider which act takes precedence.

A paramountcy is required if there is a conflict or inconsistency between the FOIP Act and another enactment, and there is a legislative intention to have the other enactment prevail over the provisions of the FOIP Act with which it is in conflict.

Section 5 resolves the question of which law will prevail. If a provision of another act or regulation is to be paramount, section 5 says that this must be expressly stated either in the other act or in the FOIP Regulation.

The sections of the FOIP Act dealing with the right to access records and the disclosure of personal information are the ones where a paramountcy issue is most likely to arise. This does not mean, however, that a conflict or inconsistency cannot arise between other provisions of the FOIP Act and a separate enactment. The following examples illustrate situations where another enactment will prevail over either the right of access or disclosure of personal information provisions in the FOIP Act.

• To provide an assurance of the confidentiality of client information for a valid public policy purpose, such as encouraging clients to seek treatment for drug abuse.

Section 9 of the Alcohol and Drug Abuse Act deals with maintaining the secrecy of client information. Because that section prevails over the FOIP Act, treatment information can be disclosed only in accordance with section 9 of that Act and not in accordance with section 40(1) of the FOIP Act.

• To protect the identity of a person who reports suspected child abuse to the Director of Child Welfare.

Under section 126(4) of the Child Welfare Act, the identity of a confidential informant cannot be disclosed to any person without the consent of the Minister. In this instance, the welfare of children prevails over the interest of an alleged abuser in knowing the identity of an informant.

• To protect the privilege of a report of an investigator under the Securities Act.

Under section 44 of the Securities Act, the report of an investigator to the Executive Director is absolutely privileged and not admissible as evidence in a court proceeding. Under section 45 of the same Act, all evidence obtained in an investigation is confidential and cannot be divulged except in accordance with Alberta’s securities laws. The rationale for these sections prevailing over the FOIP Act is to ensure that the confidentiality of the investigator’s findings is preserved. This is consistent with the enforcement of securities legislation in other jurisdictions.

Where there are conflicting or inconsistent federal and provincial laws that are both valid, the doctrine of federal paramountcy applies. Under this doctrine, the federal law prevails over the provincial law, but only to the extent of the inconsistency. What this means is that only the part of the provincial law that is inconsistent is made inapplicable or inoperative, not the entire statute.

The FOIP Act is a provincial act of general application governing access to records and information. Federal legislation that specifically deals with restrictions on disclosure would override the more general provincial access legislation.

For example, the Youth Criminal Justice Act (Canada) prohibits the disclosure of information regarding young offenders who are involved in proceedings under that Act. There is no need for a paramountcy provision within the Youth Criminal Justice Act because that Act specifically restricts the disclosure of such records and the doctrine of federal paramountcy would apply. Even the Information and Privacy Commissioner could not order the production of those records for his examination (see IPC Order 96-015 with reference to the Young Offenders Act, which was superseded by the Youth Criminal Justice Act).

Another example of federal paramountcy can be found in the Hazardous Materials Information Review Act (Canada) (HMIRA). Certain disclosure requirements of the Hazardous Products Act are subject to trade secret provisions under the HMIRA. The HMIRA establishes a Commission to rule on claims and appeals related to exceptions to disclosure of confidential business information. Under section 46 of that Act, the disclosure of confidential third party business information is restricted, except for certain purposes, including the administration or enforcement of provincial laws relating to occupational health and safety.

The need to determine whether the FOIP Act applies or a provision of another enactment prevails may arise either in the processing of an access request under Part 1 of the FOIP Act or in relation to the protection of the privacy of personal information under Part 2 of the Act.

The following steps, based on guidance from some Commissioner’s Orders, may help in making that determination:

• First, determine whether the information that is the subject of an access request under Part 1 of the FOIP Act, or a request for disclosure under Part 2 of the Act, is the kind of information that is referred to in the other act or regulation. If the other act or regulation refers to a certain category of information, such as a "report of a Securities Act investigator" or "adoption information" under the Child Welfare Act, the information requested must be able to be characterized in that way.

For example, in IPC Order 99-027, the Commissioner held that reports about incidents of child abuse did not fall within section 4(1) [previously section 3(1)] of the Child Welfare Act unless the report was about a person, who, at the time of the report, was under the age of 18 and in need of protective services. Section 4(1), and consequently section 126(4) [previously section 91(4)] of that Act, which is paramount over the FOIP Act, do not apply to incidents of child abuse occurring in the past, involving someone who is no longer a child at the time the abuse is reported.

• Second, determine whether a provision of the FOIP Act is inconsistent or in conflict with a provision of the other act or regulation.

In IPC Order 99-034, the Commissioner defined the terms "inconsistent" and "in conflict with" with reference to a decision of the Supreme Court of Canada. These terms (which are considered synonymous in this context) refer, he said, to a situation where two legislative enactments cannot stand together, that is, "compliance with one law involves breach of the other."

For example, in the Order cited, the Commissioner found that the access provisions of the FOIP Act conflicted with a confidentiality provision in the Alberta Health Care Insurance Act (IPC Order 99-034). (This provision of the Alberta Health Care Insurance Act was repealed when the Health Information Act came into force.)

• Third, determine whether there is an express paramountcy set out in the other statute or in the FOIP Regulation. In other words, does section 5 of the FOIP Act and one of sections 15, 16 or 17 of the FOIP Regulation, or a provision in the other legislation expressly state that the other act or regulation prevails over the FOIP Act? Note also whether any time limit applies to limit the effect of the paramountcy.

For example, in IPC Order 99-034, since the Alberta Health Care Insurance Act expressly prevailed over the FOIP Act at the time of the applicant's request, the records could not be disclosed under the FOIP Act. As a result, the Commissioner determined that he did not have any authority to deal with a request to review a denial of access by Alberta Health and Wellness.

Another example of this can be found in IPC Order 2001-005. The applicant asked the City of Calgary for Property Assessment Detail Reports. The Assistant Commissioner found that these records fell within section 300 of the Municipal Government Act (MGA). Section 301.1 of the MGA expressly states that sections 299-301 of that Act prevail despite the FOIP Act. Since there was an inconsistency or conflict between section 300 of the MGA and the access process under the FOIP Act, section 5 of the FOIP Act was engaged. As a result, the Assistant Commissioner held that he had no jurisdiction over the requested records, and therefore had no authority to decide whether the City properly withheld the records from the applicant.

Considerations

The FOIP Act provides the general framework for access to records and privacy protection for public bodies. Other legislation dealing with access and privacy matters will be measured against this standard. It should only be in exceptional cases that another act or regulation will prevail over the FOIP Act to either limit disclosure of information, or establish different rules for the disclosure of information in the custody or control of a public body.

All information relating to a paramountcy should be as specific as possible and should, wherever possible, be established in a statute. This enables the proposed paramountcy to be debated in the Legislature. For this reason, it is not a good legislative practice to state in an act that regulations established under the regulation-making authority in the act will prevail over the FOIP Act. This would enable various paramountcies to be established in the future by regulation and would preclude consideration by the Legislature of the policy underlying the proposed paramountcy.

Use of the FOIP Regulation to establish a paramountcy should be reserved for time-sensitive situations. This might occur, for example, when a paramountcy is needed in a public body’s legislation to address a particular situation, but there is insufficient time to open the act and introduce an amendment.

A paramountcy cannot be proposed or continued past the sunset date in the FOIP Regulation unless the Minister responsible for the FOIP Act agrees and takes forward an amendment to the Regulation.

When proposing to establish a paramountcy, consideration should be given to placing a limit on the period of time in which the records are not subject to the FOIP Act. This limit might be based upon a criterion such as the age of the record. The time limit could be placed either upon the confidentiality provision itself or on the operation of the paramountcy provision.

A time limit is important for three reasons. First, it serves to reduce the number of cases in which the FOIP Act will not apply to access requests and the disclosure of personal information. Second, it clarifies when the public would be able to exercise their right of access to certain records. Third, it enables access by the public to any records transferred to the Provincial Archives (where applicable).

Process

If it is thought that an express paramountcy may be an important aspect of the policy supporting a program, a government ministry should work through the following process.

• The program area, in consultation with the FOIP Coordinator’s office and legal counsel, should analyze the proposed and existing provisions of the respective enactments to determine whether a paramountcy is actually needed. That is, will the proposed or existing section under a statute or regulation be inconsistent or in conflict with the right of access or protection of privacy provisions of the FOIP Act?
   
• The ministry proposing the paramountcy should consult with the Minister responsible for the FOIP Act. This can be done through the Access, Privacy and Security (APS), Service Alberta. The process should involve the FOIP Coordinator and should occur as early as possible in the legislative planning process, regardless of whether it is proposed to place the paramountcy in the other ministry’s legislation or in the FOIP Regulation.

The ministry should send a letter to APS with a description of the proposed paramountcy, the rationale, an assessment of the risk or implications if the paramountcy does not proceed, and comparative information regarding practice in other jurisdictions.

• In addition, the FOIP Coordinator’s office should consult with the Office of the Information and Privacy Commissioner to obtain the views of that Office on any proposed paramountcy. A copy of the letter to APS could be forwarded to the Commissioner’s Office with a request for comments.

The Commissioner’s views should also be sought if a ministry is intending to create a new required disclosure of personal information, even if a paramountcy would not be needed. Although a new requirement to disclose personal information may be deemed necessary by the ministry, it has the potential to change the expectation of personal privacy for affected individuals.

• Paramountcy proposals, as with any other legislative amendments and proposals, must proceed through the legislative review and approval process. Should a paramountcy be proposed in the FOIP Regulation, the Minister responsible for the FOIP Act may request both written documentation and the availability of appropriate expertise at Standing Policy Committee to explain the rationale for the proposal.

Where a paramountcy is being considered, the department’s Senior Records Officer and designated Archivist should be consulted about the records retention and disposition schedule of the affected records. If another act, or provision of it, prevails over the FOIP Act, the schedule must clearly outline the type of access restrictions that will apply if the records are to be permanently retained in the Provincial Archives, and how long they will apply once custody and control of the records transfers to the Archives. The records retention and disposition schedule is subject to the approval of the Alberta Records Management Committee.

In cases where records transferred to the Archives are subject to legislation that is paramount over the FOIP Act, ministries need to identify the records concerned at the time of the transfer. This will alert the Archives to the fact that the general provision in the FOIP Act for disclosure of information in archives (section 43(1)) does not apply.

Purpose

FOIP Bulletins are intended to provide FOIP Coordinators with more detailed information for interpreting the Freedom of Information and Protection of Privacy Act. They supply information concerning procedures and practices to aid in the effective and consistent implementation of the FOIP Act across public bodies. FOIP Bulletins are not a substitute for legal advice.

Government of Alberta
Access, Privacy and Security
Service Alberta
3rd Floor, 10155 - 102 Street
Edmonton, Alberta T5J 4L4
Phone: (780) 427-5848
Fax: (780) 427-1120
Web site: http://foip.gov.ab.ca