One day, the newly elected reeve walks in to the municipal office and requests all grader reports for the municipality from the past year. While this seems like a simple request, it can raise a host of issues for the municipality. Consider how your municipality might respond and who is responsible to prepare the response.
Municipalities are local authorities, subject to The Local Authority Freedom of Information and Protection of Privacy Act (“LAFOIP”). LAFOIP provides every person the right to be permitted access to records within the municipality’s possession and control.
As a local authority, municipalities are required to search for and disclose the requested records, subject only to limited exemptions. The person ultimately responsible for managing the search and disclosure efforts is called the “head” of the local authority. For the purposes of LAFOIP, the “head” is the mayor or reeve of the municipality.
However, municipalities quickly run into problems when mayors or reeves make access to information requests in their municipalities. It is important to keep in mind that a reeve can have a number of different roles when it comes to an access to information request. First, as the applicant, the reeve is a citizen and has a right of access to documents in the municipality’s possession and control. Second, as the reeve, he or she is also the “head” for the purposes of responding to the request. LAFOIP does not prohibit the head from also being an applicant.
Issues can arise where the reeve and municipal administration are not clear on their roles in responding to the request, especially due to the apparent conflict of interest arising from the reeve considering his or her own request. This is the situation that arose in the Office of the Information and Privacy Commissioner (“OIPC”) Report LA-2012-003, where the Mayor of the Village of Buena Vista made a request for certain documents to the Administrator since both the Mayor and Administrator believed that the Administrator was responsible for responding to the request. In clarifying the roles and responsibilities of the mayor in responding to the request, the OIPC recommended that municipalities develop a process to address the conflict of interest where the applicant is the head or has delegated authority to respond to access request.
While the mayor or reeve is the default “head” of the municipality, LAFOIP permits the “head” to delegate all or parts of the duties held by the “head.” Indeed, the authority of the head is often delegated to others within the municipality. Such delegations must be clearly documented. In addition, LAFOIP requires the municipality to develop a policy or procedure for handling all information requests, including to address delegations of authority such as where requests are made by the mayor or reeve. Once triggered, the process should include the mayor or reeve delegating his or her duties under LAFOIP to another person, such as the administrator or another council member if that authority has not already been delegated. Once the delegation is complete, then that person can proceed to process the request in compliance with LAFOIP.
Our team has assisted a number of municipalities with LAFOIP matters including setting up compliance programs, interpreting LAFOIP, delegations, access requests, complaints, and reviews by the OIPC. For more information concerning LAFOIP, please do not hesitate to contact a member of our municipal group.
The OIPC has also issued a number of helpful resources for municipalities on their obligations pursuant to LAFOIP that municipalities may wish to review.
This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.