Notification of Breach of Privacy

The contractor must be required to notify the public body immediately when it anticipates or becomes aware of an occurrence of breach of privacy. For example:

Model Clause Ss

In the event that the contractor anticipates a breach of privacy or becomes aware of a breach relating to the personal information transferred, collected, maintained, or stored by the contractor under this contract, the contractor must immediately notify the Minister in writing of the following, to the extent known: the nature of the information that was breached (type and date of the information, name(s) of the person(s) whose information is affected); when the breach occurred; how the breach occurred; who was responsible for the breach; what steps the contractor has taken to mitigate the matter; and what measures the contractor has taken to prevent reoccurrence.

Consequences of breach

In addition to the fines outlined in section 6.7 for offences under the FOIP Act, a contract may provide for a genuine pre-estimate of damages to be awarded against the contractor for breach of a term of the contract, particularly for a breach involving personal information. Such a clause should be given serious consideration where there is a possibility that the personal information involved in the contract may be subject to a request for access from a foreign jurisdiction. The existence of the possibility of substantial damages may act as a deterrent against the unauthorized disclosure of the information by the contractor, its employees, agents, or subcontractors to the foreign jurisdiction. Other consequences may include exercising rights against a letter of credit, notice by the contractor to an affected third party, or suspension or termination of the contract.

The public body may also wish to consider a general clause regarding consequences upon breach of the privacy provisions of the FOIP Act by the contractor:

Model Clause Tt

Should there be any use or disclosure of the information by the contractor, its employees, agents, or subcontractors contrary to this contract, the Minister may terminate or suspend the contract immediately; demand immediate return of all records in the custody or control of the contractor at the expense of the contractor; require that the contractor issue notice, at its own expense, to any third party whose information was improperly used or disclosed; or take any other action that the Minister, in his sole discretion, considers appropriate.

6.7
Offences and Penalties

Section 92(1) of the FOIP Act contains several offences and penalties. It is an offence to, among other things, wilfully

• 
  alter, falsify, or conceal any record, or direct another person to do so, with the intent to evade a request for access to the record,
  
• 
  destroy any records subject to the FOIP Act, or direct another person to do so, with the intent to evade a request for access to the records;
  
• 
  collect, use, or disclose personal information in contravention of Part 2 of the FOIP Act; or
  
• 
  gain or attempt to gain access to personal information in contravention of the FOIP Act.
  

The penalty for these offences is a fine of up to $10,000.

Contracting documents should clearly state that destroying records to evade providing access to them is an offence under the FOIP Act. For example:

Model Clause Uu

The contractor shall notify subcontractors and employees that section 92 of the Freedom of Information and Protection of Privacy Act specifies that a person who wilfully alters, falsifies or conceals any record, or who wilfully destroys any record that is governed by the Act or directs another person to do so with the intent to evade a request for access to records, is guilty of an offence and is liable to a fine of not more than $10,000.

AND

Model Clause Vv

The contractor shall notify subcontractors and employees that section 92 of the Freedom of Information and Protection of Privacy Act specifies that a person who wilfully collects, uses, or discloses personal information in contravention of Part 2 of the Act or gains or attempts to gain access to such personal information in violation of the Act, is guilty of an offence and is liable to a fine of not more than $10,000.

6.8
Applicable Law

The contract should contain a provision establishing the jurisdiction of the law that governs the contract. For example:

Model Clause Ww

This contract is governed by the laws in force in the Province of Alberta, and all matters arising under this contract shall be heard exclusively by the courts of the Province of Alberta.

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