SUMMARY

Section 4 establishes the public’s information rights and defines the key access principle of the Act: the public has a right of access to all records in the custody or under the control of public bodies that are not excepted from disclosure under Division 2 of Part 2 of the Act.  This includes the right of individuals to personal information about themselves.  This provides a formal request process for records that are not available through routine channels.

Section 4(2) also establishes the obligation of a public body to review requested records line-by-line and to release any and all information not subject to exception under the Act and withhold if the excepted information can be reasonably severed.

POLICY

1. Public bodies shall respect the public’s right of access and operate in an atmosphere of honesty and openness.  When a formal request for access to records is received by a public body, all records in the public body’s custody or control shall be considered as available to the requester, unless the head determines that the requested information falls under one or more exceptions to disclosure listed in Division 2 of Part 2 of the Act.
   
   

2. The head shall make every effort to respond to an applicant openly, completely and without delay.
   
   

3. The Act and regulations do not limit in any way access to information, other than personal information, that has been routinely available in the past.
   
   

4. In accordance with Section 3 of the Freedom of Information and Protection of Privacy Regulation, BC Regulation 323/93, if a person is unable to exercise their own informational rights, they may be exercised as follows

(a)	on behalf of an individual under 19 years of age, by the individual’s parent or guardian if the individual is incapable of exercising those rights;
(b)	on behalf of the individual who has a committee, by the individual’s committee;
(c)	on behalf of a deceased individual, by the deceased’s nearest relative or representative.

5. A public body is not required to release information it is authorized to withhold under Division 2 of Part 2 (sections 12 through 22) of the Act, but if the information can be reasonably severed from a record, the public body is required to release the remaining information.
   
   
6. Where the information in a record directly relates to more than one public body, more than one public body may have custody or control of the record. The public body with the greater interest shall process the request for information. 
   
   
7. Section 4 applies only to those records already in existence. It does not apply to records which will or may be created in the future. 
   
   
8. Public bodies shall charge fees in accordance with section 75.

INTERPRETATION 

Interpretation Subsection 4(1)

"Custody"

"Control"

Examples:

• Semi-active records of a public body, held in contracted off-site storage by the British Columbia Archives (BCA) are under the control of the public body, not BCA, even though they are in BCA's custody.
  
  

• Inactive or archival records of a public body that have been transferred to BCA, under an approved records retention schedule, are in the custody and under the control of BCA, not the public body.
  
  

• Where public body A stores records on behalf of public body B due to B's office space restrictions, A does not have "custody" of B's records if access to the records is restricted to B's personnel.
  
  

• Constituency records of a minister kept separate from ministerial records are not in the custody or control of the ministry.
  
  

• Records kept by a union shop steward at his place of work, that relate only to his or her shop steward function, are not in the custody or under the control of the public body even though they are stored on the premises of the public body.
  
  

• Official journals or "black books" of public employees are in the custody of the public body.  Personal information not related to the duties as an employee of the public body is severed before disclosure.
  
  

• Records produced by legal counsel at Legal Services Branch, Ministry of Attorney General, acting as legal counsel to a public body, are under the control of the public body, not the Ministry of Attorney General. This includes legal opinions.
  
  

• A legal opinion produced by a lawyer from a private law firm acting as legal counsel for a municipality is under the control of the municipality.
  
  

• A management consulting firm is retained to report on the management of a public body.  Records that the public body requires for its operational needs remain in the control of the public body, even where they are in the custody of the consulting firm.
  
  

• An agency that is funded by government grants is not a public body, but the agency's records may be in the custody and, in this example, under the control of a public body if the public body has possession of and has assumed responsibility for the agency's records.
  
  

• Where a public body's databases contain government information mixed with information provided by a third party, the third party's information is in the custody and control of the public body.  Applicants may request access to the third party's information held by the public body (the section 21 exception may apply).
  
  

• Log books kept by volunteer firefighters for a municipality are under the control of the municipality.

Interpretation Subsection 4(2)

Proper severance provides the applicant with information that is both intelligible and responsive to the request. Any doubts about whether the remaining information is understandable are resolved in favour of release rather than exception.  Occasionally, however, severance will not be practicable because excepted information is so intertwined with releasable information that the remaining information might reveal excepted information or be unintelligible.  In those circumstances, all the information should be severed. 

Interpretation Subsection 4(3) 

Section 75(3) provides that fees may not be charged for an applicant’s own personal information. However, where another act expressly provides that fees may be charged for access to personal information, an applicant may not avoid payment of these fees by submitting a formal request under the Act. 

Example:

• Procedures and fees for access to vital statistics information are established by regulation under the Vital Statistics Act.

"Reasonably be severed" means that after the excepted information is removed from a record, the remaining information is both intelligible and responsive to the request.  See Severance.

REFERENCES