"Public body" is defined in Schedule 1 of the Act.
Cabinet Ministers and Members of the Legislative Assembly
The definition of "public body" excludes the office of a person who is a member of the Legislative Assembly (MLA).
Therefore, the Act does not apply to the private or political records of MLAs including MLAs who are Cabinet ministers. Private or political records are those that relate to the non-governmental duties and functions of MLAs to their constituencies. Records of MLAs are within the scope of the Act when they are in the custody or control of a public body.
There are several categories of records that may be held by MLAs, some of which are subject to the Act. Some records may contain information that falls within two or more of these categories.
Constituency records: these records deal with the establishment and administration of the MLA’s constituency association. These are political records and are excluded by the Act.
Records related to the Office of an MLA: these records deal with the duties and functions of the MLA as the representative of his or her constituents and are excluded because they fall within the legislative realm and document the function and activities of an MLA. This exclusion also applies to the records of Cabinet ministers when they act in their MLA capacity as representatives of their constituents. For example, a letter written by an MLA and in the custody of the MLA or a non-public body is not within the scope of the Act. The MLA's letter is covered by the Act, however, if it is in the custody or control of a public body; e.g., where an MLA has written to a public body.
Records of a Cabinet Minister: these records are covered by the Act.
Records of a member of a Cabinet-caucus committee (where the MLA is not a Cabinet minister): these Cabinet-related records are covered by the Act in the same way as records of a Cabinet minister. A person need not be a Cabinet minister to be involved with Cabinet activities.
- investigate facts, hear all parties to the matters at issue, weigh evidence or draw conclusions as a basis for their action;
- exercise discretion of a judicial nature; and
- render a decision following the consideration of the issues rather than simply making a recommendation.
Example:
- Courts of Revision created pursuant to the Assessment Act.
Interpretation Paragraph 3(1)(c):
Officer of the Legislature
"Officer of the Legislature", see Schedule 1.
Subject to section 3(3), operational case files of the Auditor General, the Information and Privacy Commissioner and the Ombudsman are excluded from coverage by the Act, regardless of where the files are located (i.e., the files may be in the custody of a public body). The
administrative files of these officers, however, are subject to the Act (e.g., personnel, competition and office management files).
Records that were created by or for a public body and relate to the exercise of the statutory functions of an Officer of the Legislature are
excluded from the Act except where subject to the provisions of section 3(3) the Act. Similarly, records requested by an Officer of the Legislature and transmitted by cover letter are subject to section 3(3) but otherwise excluded from the Act in this specific instance. However, these same records may reside in the public body’s files, unrelated to any investigation by an Officer of the Legislature, and are therefore subject to the Act.
Examples:
- A ministry official responds to a request from the Ombudsman’s Office for certain records pertinent to an investigation. In the ministry’s response, the cover letter and any documents created to accompany it would be excluded from the scope of the Act as they were "created for" an officer of the Legislature. If other records are included in the response package that were created prior to the Ombudsman’s investigation, or, do not owe their existence to the investigation, the copies retained in original Ministry files would still be within the scope of the Act.
- A letter from the Ombudsman to the ministry official about an investigation is not within the scope of the Act, regardless of the physical location of the record.
Interpretation Paragraph 3(1)(d):
Record of a question
This exclusion applies only to questions that are to be used in the reasonably near future, or which are included in a standard set of tests or exams. Generally, the public body should intend to use the question within the next 3 months, except in the context of yearly educational courses. For technical questions that are used on a regular basis a longer period may be reasonable.
Questions that were used in previous tests, but which will not be used again, are subject to the Act.
A "record of a question" may include an anticipated or correct answer that the public body has drafted for that question. It also includes a candidate’s own answers if the questions could be recreated using the answers particularly if those questions will be used in the reasonably near future or are included in a standard set of exams.
Examples:
- Current and future questions used in provincial school examinations;
- Driver’s licence tests;
- Audit tests and evaluations; and,
- Government job competition questions.
Interpretation Paragraph 3(1)(e):
Teaching materials and research information
"Teach" means give systematic information to a person or about a subject or skill (Concise Oxford Dictionary, 8th edition).
"Teaching materials" includes any records produced or compiled for distribution to students, to aid an instructor in relating information to students, or otherwise used to teach.
Example:
- Notes prepared by a university professor to refer to while presenting a lecture to students.
"Research"
Example:
- A bibliography prepared by a research assistant at a university to enable a professor to determine what background material is relevant to a research proposal.
"Post-secondary educational body" means an educational body, as defined in Schedule 1, except for a board as defined in the School Act.
Once a public body has determined that a record falls within this section, there is no need to review the record. The entire record is excluded from the scope of the Act.
Interpretation Paragraph 3(1)(f):
"By or for a person or agency other than a public body" means that any information placed in the archives of the government of British Columbia, by a person or agency that is not a public body is excluded from the Act. Further, anything placed in the archives of the government of British Columbia for a person or agency that is not a public body is excluded from the Act, regardless of whom, or what entity places it there.
Example:
- Private papers of a past Lieutenant-Governor of British would be excluded, whether they were placed in the archives of the government of British Columbia by the Lieutenant-Governor, his or her family, or by a public body that happened to have custody or control of his or her private papers.
- Records of any nature placed in the archives of the government of British Columbia by someone who is not a public body are excluded from the scope of the Act.
"Archives of the
government of British Columbia"
Interpretation Paragraph 3(1)(g):
"Archives of a public body"
Interpretation Paragraph 3(1)(h):
"Prosecution" records are excluded from the scope of the Act until all proceedings have been completed.
"Proceedings" (see paragraph 3(2) below) in respect of a prosecution are "completed" when all appeal periods have expired, or where Crown counsel has stayed a criminal prosecution and a one-year period has passed.
See also: Section 15(1)(g) - Exercise of Prosecutorial Discretion.
Interpretation Paragraph 3(1)(i):
Elected official of a local public body
"Local public body"
Private correspondence of local public body officials that is not received or sent by the official in his or her capacity as an elected official of the local public body is not within the scope of the Act. This includes records that relate to the elected official’s private activities even if these records are located in the elected official’s office at the local public body. The physical custody of the records is a consideration, but is not determinative in deciding whether they are under the legal control of the local public body.
Examples: Records outside the scope of the Act
- Records relating the election campaign of a municipal council member, other than those records an elected official is required to submit to the municipal clerk.
- Records relating to a school trustee’s private business holdings.
- Personal notes made by a municipal councillor on council agenda material as a memory aid or to record points of discussion.
Examples: Records within the scope of the Act
- Notes a council member makes on a report discussed at a council meeting which become the substance of amendments passed at council.
- Municipal correspondence that a councillor has taken home.
- A record of an in camera meeting prepared by a council member because staff were excluded from the meeting.
- Notes taken by a municipal councillor during a meeting, in his or her official capacity, with a citizen.
Interpretation Subsection 3(2)
Subsection 3(2) means that the Act does not limit or prevent people from using legal processes such as "interrogatories" and "examinations for discovery" to gather information relative to the proceeding.
"Proceedings" are activities governed by rules of court or rules of judicial or quasi-judicial tribunals that can result in a judgement of a court or ruling of a judicial or quasi-judicial tribunal.
Interpretation Subsection 3(3)
Subsection 3(3) means that officers of the Legislature, their employees and service providers are governed by the following sections of the Act:
