Alberta Government departments, agencies, boards and commissions use a variety of contracts to operate their programs. When these public bodies enter into contracts and other agreements, they must take into consideration their duties and functions under the Freedom of Information and Protection of Privacy Act (the FOIP Act), as well as the Records Management Regulation (RMR) established under the Government Organization Act.
The FOIP Act provides a right of access to information in the custody or under the control of public bodies. When a government body enters into a contract, it must ensure that records created by or for the public body will continue to be accessible to the public body for its own use and in response to a request for information by the public. These records must continue to be accessible to enable the government body to fulfil its mandate and functions, as well as its duty of accountability. The FOIP Act further requires public bodies to protect personal information. When a government department or other government body enters into a contract, it must ensure that its responsibility for the protection of personal information will be fulfilled by the contractor on its behalf.
The RMR requires the deputy head of a government department to ensure that department records are managed in accordance with the Regulation. Records management is of critical importance for many reasons; however, it is particularly important in enabling government to meet its obligations under the FOIP Act.
A large number of contracts that public bodies enter into are relatively straightforward, and the application of the FOIP Act and the RMR to the information and records involved is well understood. However, a number of recent trends have resulted in a need for attention to the management of information that is collected, used, disclosed and retained under different types of agreements.
For example, public bodies have entered into an increasing number of agreements relating to shared services, common or integrated programs, and cooperative arrangements such as “public–private partnerships.” Some of these agreements involve the sharing of sensitive personal information and new information technology, which may raise concerns about the protection of personal privacy. In other cases, agreements involve the transfer to the private sector of certain functions that have traditionally been carried out in the public sector; this may raise concerns about access to information and continued accountability for public services. In addition, new privacy legislation relating to personal information in the private sector and to health information has, in some cases, led to new obligations on the part of contracting parties. This can arise, for example, when an individual receives services from an organization that is acting under contract to a public body and also acting on its own behalf.
This Guide is designed to assist employees involved in contract management in understanding the implications of the FOIP Act and the RMR for the various aspects and stages of the contracting process. Although the Guide has been designed to meet the needs of provincial government employees, many of the suggestions offered here are likely to be applicable to local public bodies subject to the FOIP Act.
Chapter 1 provides a summary of some of the key concepts in the FOIP Act and the RMR that are of particular relevance to contracting.
Chapter 2 outlines different types of agreement that public bodies may enter into, including purchase agreements, fee-for-service contracts, and agreements relating to common or integrated programs.
Chapter 3 provides an overview of access to information and privacy legislation in Alberta and other jurisdictions that may affect an agreement between a public body subject to the FOIP Act and a body that is subject to other legislation.
Chapter 4 considers some issues that may arise in relation to different kinds of agreements, such as the processing or storage of personal information outside Alberta, the processing of sensitive personal information, the use of client information by contractors after the end of the contract, and the restructuring of a contractor organization during the life of a contract.
Chapter 5 covers some business processes that may require consideration of access, privacy and records management issues at the pre-contracting stage of a project. This chapter also discusses records management, access and privacy issues relating to the tendering process. It offers model provisions for inclusion in tendering documents, such as requests for proposals.
Chapter 6 discusses contract preparation and suggests various model clauses for inclusion in a contract.
The Checklist in Appendix 1 provides an alternative approach to accessing the content of the Guide.
Throughout the Guide, there are a number of references to the FOIP Act and Regulation and to Orders and Investigation Reports of the Alberta Information and Privacy Commissioner. The Orders and Investigation Reports relate to cases in which various provisions of the FOIP Act have been considered. The Act and Regulation can be found on the FOIP website at foip.alberta.ca. The RMR appears in Appendix 3 of this Guide. The Orders and Investigation Reports are available in full text on the Commissioner’s website at www.oipc.ab.ca. Summaries produced by Access and Privacy, Service Alberta are available at foip.alberta.ca.
This publication replaces the FOIP Contract Manager’s Guide. This revised and expanded version of the Guide aims to provide more comprehensive coverage of issues and examples, while maintaining ease of use through the use of a range of navigational aids, including a detailed table of contents and extensive links between related sections of the publication.
he information provided in this Guide is intended to assist public bodies in understanding how the FOIP Act applies to the contracting process. The Guide is not intended to provide legal advice. The sample contract clauses are provided as examples only and may not be appropriate in all circumstances. Public bodies should obtain legal advice on contract wording when establishing specific contracts.
Visit the FOIP website for information about the Managing Contracts under the FOIP Act course that is offered by Service Alberta.