Managing Contracts under the foip act



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2.11
Grant Agreements

A public body may, if authorized by its own governing legislation or by a regulation under the Government Organization Act, provide a grant to an individual or an organization.

A grant is a disbursement of money made by the Government as a gift, transfer or payment with no exchange of goods or services. The purpose and terms and conditions of the grant may be set out in the regulation or in a written grant agreement.

The public body normally has very little control of the day-to-day operations of the person or program funded by the grant. The grant recipient may be subject to reporting and auditing requirements, as specified in the regulation or the grant agreement.

Access and privacy implications


A grant is a payment for which goods or services are not normally received by the public body. Any intellectual property developed under the grant would not normally be provided to the granting body. If the public body wishes to retain a right to use, to publish, or to collect revenue on the intellectual property, this should be specified in the grant agreement. If the public body asserts a right to intellectual property, the agreement should indicate the terms under which it will exercise that right (for example, the public body may assume control over the intellectual property once it has indicated, in writing, that it will exercise the right).

The regulation or grant agreement may provide that the Minister responsible for the public body or the Auditor General has the right to examine and take copies of any records necessary for accountability within the grant program. This would typically include reports, financial statements, receipts, invoices, and other records that are required to be submitted to the Minister or Auditor General.

The grant recipient should acknowledge that the FOIP Act applies to records submitted by the recipient to the public body, including the grant application, and that the records may be disclosed in response to an access request under the FOIP Act, subject to any applicable exceptions to disclosure under the Act.

A public body may provide a grant to a person to purchase goods or services from a private-sector provider approved by the public body. In these cases, records relating to payments made by the public body to the provider that are in the control of the public body would be subject to the FOIP Act. Transactions between the private-sector provider and the grant recipient would not be subject to the FOIP Act (unless for some reason the information was in the custody of the public body). Personal information collected, used or disclosed for the purpose of providing the services may be subject to private-sector legislation. The public body should clarify its responsibilities in this regard in its notice to the grant recipient.




2.12
Agreements Where the Public Body is the Service Provider

In recent years, some public bodies have taken on the role of providing services to other public bodies within the Government (for example, Service Alberta). The goals of these arrangements include cost and administrative efficiencies, standardization, and a one-window approach for users. The public body providing the service will be required to protect the privacy and security of personal information that it handles on behalf of the client public bodies.

Access and privacy considerations


The contract for the provision of services should specify which public body has control of the records and the parties’ responsibilities in relation to an access request. In most cases, the control will remain with the client public body.

The public body providing the service will handle records on behalf of the client public bodies. The public body providing the service may use the information only in accordance with the contract. The public body providing the service may need to segregate that information from its own operating records and from the information and records of its other clients.

In some situations, the client public body may access the electronic information system of the public body providing the service in order to input, view, or retrieve data. The client public body should be required to use a secure form of access, with the necessary safeguards (for example, passwords, firewall and virus protection) to ensure the integrity of the information system.

TIP Private-sector privacy legislation requires organizations to assume responsibility for the contractor’s compliance with the legislation. This does not apply in situations where a public body provides services under a contract with an organization. The public body remains subject to the FOIP Act.

Related sections of this Guide

Chapter

  • Key concepts: Custody and control

1.2

  • Use and retention of information about common clients

4.6

  • Drafting the contract

6; esp. cl. C, E, H, L, Bb–Gg.1

3.
Interaction between the FOIP Act
and Other Legislation


3.1
Overview

Alberta Government departments and other public bodies subject to the FOIP Act enter into agreements with a range of government bodies, as well as organizations in the private sector that are subject to other legislation. When entering into these agreements, public bodies should aim to ensure that the rights and powers conferred by the FOIP Act are not diminished.

The most important general points to bear in mind when entering into an agreement with a body that is not subject to the FOIP Act are as follows.



  • Each party to the agreement must comply with the legislation that governs that party with respect to the transaction – parties cannot “contract out” of their governing legislation.

  • Where the legislation that governs the other party provides for a lower standard than the FOIP Act with respect to access or the protection of personal information (as applicable), the agreement should, if possible, include clauses that require the other party to meet the higher standard.

  • The contracting process should provide clarity regarding the obligations of the parties; it is generally preferable to state what those obligations are rather than to include clauses that merely require the parties to comply with legislation that would not otherwise apply.

There is a broad range of access to information and privacy legislation in Canada. The federal government and all of Canada’s provinces and territories have access to information and privacy legislation that applies to the public sector. In addition, some provinces, including Alberta, have separate legislation for health information.

Since January 1, 2004, all private-sector organizations in Canada have also been subject to privacy legislation. The federal Personal Information Protection and Electronic Documents Act (PIPEDA) applies to the collection, use and disclosure of personal information by federally regulated organizations regardless of where the collection, use or disclosure occurs within Canada. PIPEDA also applies to the collection, use and disclosure of personal information by organizations in provinces that do not have their own provincial legislation. In Alberta, British Columbia and Quebec, all of which have legislation that is substantially similar to the federal Act, PIPEDA applies only to an organization’s disclosure of personal information outside the province.

Although this range of legislation may appear complex, the various Acts are largely based on common principles. This chapter will provide a brief overview of how Alberta’s FOIP Act interacts with some of this other legislation. Topics covered include:


  • the paramountcy of the FOIP Act over other Alberta legislation,

  • Alberta’s Health Information Act (HIA),

  • Alberta’s Personal Information Protection Act (PIPA),

  • the paramountcy of federal legislation over provincial legislation,

  • the federal Access to Information Act and Privacy Act,

  • the federal Personal Information Protection and Electronic Documents Act (PIPEDA),

  • United States legislation,

  • extra-territorial application of foreign law, and

  • jurisdictions with no privacy legislation.

For each Act covered in this chapter, the discussion will briefly explain the purposes of the Act, provide key definitions, highlight the most significant differences between the FOIP Act and the Act in question, and provide examples of situations in which the other Act is relevant to an agreement between a public body and another party. Some tips are offered, as well as references to other resources. Public bodies may need to seek legal advice when entering into agreements that involve the interaction between different Acts with respect to new situations.

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