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FOIP Guideline - an Overview for Tutors

Guideline - An Overview of the FOIP Act and Record Keeping Guidelines for AU Employees Performing Tutorial Functions

The Freedom of Information and Protection of Privacy (FOIP) Act, R.S.A. 2000, c. F-25 was introduced in the Alberta Legislature in the spring of 1994 and came into force for Alberta's post-secondary institutions on September 1, 1999.

Purposes of the FOIP Act

  • to allow the public, subject to limited and specific exceptions, a right of access to records held by Athabasca University (AU)
  • to control the manner in which personal information may be collected from individual(s), and to control the use of and disclosure of that information
  • to allow individuals, subject to limited and specific exceptions, the right to have access to information about themselves held by AU
  • to allow individuals the right to request corrections to information about themselves which is held by AU
  • to provide an independent review of decisions made by AU under the FOIP Act.

Scope of the FOIP Act

  • the FOIP Act is in addition to and does not replace existing procedures for access to information or records and should be viewed as a last resort for gaining access to information or records
  • the FOIP Act does not affect access to records deposited in the archives of AU that were unrestricted before the coming into force of the FOIP Act
  • the FOIP Act does not limit the information otherwise available by law to a party to legal proceedings
  • the FOIP Act does not affect the power of any court or tribunal to compel a witness to testify or to compel the production of document

What the FOIP Act Applies To

The FOIP Act applies to all records in the custody or under the control of AU created both before and after the FOIP Act came into force except for the records defined in section 4(1) of the FOIP Act.

Record:

means a record of information in any form and includes notes, images, audiovisual recordings, x-rays, books, documents, maps, drawings, photographs, letters, vouchers and papers and any other information that is written, photographed, recorded or stored in any manner, but does not include software or any mechanism that produces records;

Custody:

means AU has possession of the record.

Control:

means AU has the authority to manage the record.

Each and every staff member creates, receives, uses, and maintains records in conducting the business of AU. These records are considered to be AU records and are subject to the FOIP Act. Your personal records or records of another organization/business that you have in your custody are not subject to the FOIP Act. It is recommended that you organize and store AU records separately to avoid confusion, and to provide easy access to the university records in the event of a request for the records in your possession.

Obtaining Access to Records

There are two methods for gaining access to records held by AU:

  • Non-FOIP requests or general inquiries for information. This method will satisfy the information needs of most information seekers
  • FOIP requests. A method of seeking access to information that is not otherwise available

The FOIP Act sets out the rules for access to records of AU and should not replace existing procedures for access to information of AU that is normally available to the public.

In the event of receiving a request to access the records in your custody or under your control, follow established policies and procedures relating to what information you may or may not release and what is the preferred method of communicating the information. If the request is to access records that are not normally routinely released or if you are unsure about releasing the record, contact your supervisor, the centre you or the records are associated with, or the Privacy and Policy Advisor.

If an applicant is not satisfied with the information AU makes available through routine disclosure processes he or she may make a request for the information under the FOIP Act. The FOIP Act requires the request to be written. Oral requests may be made when the applicant's ability to read or write in English is limited, or a physical disability or condition impairs the applicant's ability to make a written request. The applicant may either ask for a copy of the record or to examine the record.

Sometimes only part of the record is accessible because of the exceptions to disclosure under the FOIP Act. As much of the record must be released, as long as the disclosed portions of the record can be reasonably severed from the excepted portions.

An applicant may request to have the request under FOIP continue for a period of up to two years.

A FOIP request must be responded to within thirty calendar days unless the time limit has been extended or the request transferred to a more appropriate public body for response. An applicant must be told whether or not access will be given and if access will be given, when and how it will be given. If access is refused, the applicant must be given reasons for the refusal as well as the name and address of a person who can answer questions about the refusal, and that they may request a review of the decision by the Information and Privacy Commissioner.

Exceptions to Disclosure

The FOIP Act recognizes that an absolute rule of openness would impair the ability of AU to discharge its responsibilities effectively. This is reflected in the FOIP Act by very specific and limited exceptions. There are exceptions that set out when a record "must not" be released, and there are exceptions that set out when a record "may not" be disclosed.

Most of the "may not" disclosure exceptions are based on a harms test. The harms test is based on a determination of whether the disclosure of all or part of a record could reasonably be expected to have a detrimental effect on a particular public or private interest.

The FOIP Act sets out the rules that must be considered when determining if a disclosure of personal information constitutes an unreasonable invasion of a third party's personal privacy.

Fees

The FOIP Act and Regulation allows AU to charges fees for certain services when responding to a FOIP request. 

Rights of Third Party

If a FOIP request involves records containing personal or commercial information about a third party, the third party must be notified and provided with a copy of the record that is being considered for disclosure. The third party has 20 days to respond. The applicant must be informed that third party interests may be affected.

Public Interest Override

The FOIP Act includes a public interest provision that obligates AU, whether or not a request is made, to disclose information about a risk of significant harm to the environment or to the health and safety of the public or to other matters clearly in the public interest.

Protection of Privacy

The FOIP Act establishes conditions and obligations that AU must meet in protecting the privacy of individuals whose personal information is in its custody or under its control.

  • Personal information means recorded information about an identifiable individual, including:
  • the individual's name, home or business address or home or business telephone number
  • the individual's race, national or ethnic origin, colour or religious or political beliefs or associations
  • the individual's age, sex, marital status or family status
  • an identifying number, symbol or other particular assigned to the individual
  • the individual's fingerprints, other biometric information, blood type, genetic information or inheritable characteristics
  • information about the individual's health and health care history, including information about a physical or mental disability
  • information about the individual's educational, financial, employment or criminal history, including criminal records where a pardon has been given
  • anyone else's opinions about the individual
  • the individual's personal views or opinions, except if they are about someone else

Collection of Personal Information

Personal information cannot be collected by AU from an individual unless it is:

  • expressly authorized by or under an Act of Alberta or Canada
  • for the purposes of law enforcement, or
  • it is directly related to and is necessary for an operating program or activity of AU

Generally, personal information must be collected directly from the individual the information is about, unless other legislation authorizes the collection, or it is necessary for an operating program or activity of AU.

When information is collected directly from the individual, the individual must be told the purpose for which the information is collected, the specific legal authority for the collection, and the title, business address and phone number of an employee who can answer the individual's questions about the collection.

AU will only collect the personal information that is necessary for an operating program or activity. The collection of personal information will be directly from the individual that the personal information is about unless the individual has consented to indirect collection or the indirect collection is possible under section 34 of the FOIP Act.

When personal information is collected from an individual, that individual must be informed of the purpose for the collection of personal information. That personal information may only be used for the purposes indicated when it was collected or for purposes that are consistent with the original reason it was collected. If you need to or want to use the personal information for another purpose that is not consistent with the original reason, then you must obtain the consent of the student to do so.

The notes or comments you record about a student are considered to be the personal information of that student and the student has the right to request access to the notes or comments. Create documentation that contains personal information in a manner that enables release or reasonable severing in an event of a request to access the record. An example would be to separate the comments of more than one student in one memorandum into separate paragraphs or better yet into separate memorandums.

When an individual's personal information is used by AU to make a decision that directly affects the individual, AU must make every reasonable effort to ensure that the information is accurate and complete, and retain the personal information for at least one year after using it so that the individual has a reasonable opportunity to obtain access to it.

An individual has the right of access to his or her own personal information and to request a correction of information that the individual believes may contain an error or omission. AU must either make the correction or make note of the request for correction on the data subject file, and notify the individual within 30 days of the action taken.

Use of Personal Information

AU may use personal information only for the purpose for which it was collected or compiled or for a use consistent with that purpose, for another purpose with the consent of the individual, or for purposes allowed under the disclosure section of the FOIP Act.

Disclosure of Personal Information

The FOIP Act sets out specific rules about disclosure of personal information. There are limitations on third parties obtaining access to the personal information of another individual, what AU may disclose without a FOIP access request, and what may not be released to an individual that the personal information is about.

The common disclosures include: upon the consent or request of the student, to other staff to enable them to fulfill their responsibilities, to departments to provide their services, and to provincial and federal governments as directed by other legislation. Disclosure to another staff member or department is limited to personal information that is required for them to fulfill their responsibilities.

Information and Privacy Commissioner

An applicant has a right to an independent review of decisions made by AU. The FOIP Act establishes an Information and Privacy Commissioner to monitor compliance with its legislative provisions by public bodies.

Offences

A person must not willfully collect, use or disclose personal information in violation of the FOIP Act; make a false statement to, or mislead or attempt to mislead, the Commission or another person in the performance of the duties, powers or functions of the Commissioner or other person under the FOIP Act; obstruct the Commissioner or another person in the performance of the duties, powers or functions of the Commissioner or other person under the FOIP Act; fail to comply with an order made by the Commissioner; or destroy any records subject to the FOIP Act with the intent to evade a request for access to the records.

A person who is guilty of an offence is liable to a fine of not more than $10,000. 

An individual who willfully discloses personal information pursuant to a subpoena, warrant or order issued or made by a court, person or body having no jurisdiction in Alberta to compel the production of information is guilty of an offence and liable to a fine of not less than $2000 and not more than $10,000. In the case of a corporation, the fines are substantially increased - not less than $200,000 and not more than $500,000.

Managing Records

You are responsible for maintaining AU records in your custody and under your control according to AU policies, procedures, retention and disposition schedules. If you have any questions regarding these issues, contact the centre you are associated with regarding the records for that program or activity, the department that the records are associated with, the Office of the Registrar regarding student records as the Office of the Registrar maintains the official student record, or the Records and Information Coordinator.

Upon termination of employment with AU, the records in your possession are considered to be AU records and must be dealt with according to AU policies and procedures. The most common procedure would be to dispose of all transitory records and forward all other records to the centre you were associated with.

Duplicate copies of certain records may be created and retained by staff, departments and centres for the purpose of easy access to information about a student or his/her activity relating to a particular course or program. These types of records are considered to be transitory records and once the records no longer have any value or use, they can be destroyed.

Records considered to be transitory records:

  • announcement of conference
  • announcement of new staff member
  • email from student confirming they received the marked assignment
  • email to student stating the assignment was placed in the mail today
  • email to staff member requesting a form be sent to a particular student

If the records you have are only a copy and considered to be transitory, but you have made notes on the document, you will need to determine if the notes on the document have value and what that value is. You may have to retain the copy as an original.

The most common types of records relating to a student that employees completing tutorial functions may receive, create and maintain include tutor marked exercises, student profiles, emails, correspondence, notes, assignments, contact logs, and mail returned labeled address unknown.

Some of the records will be considered the original because no other copies exist or are maintained by AU. These records may include:

  • copies of correspondence between a tutor and a student
  • emails between a tutor and student
  • copies of correspondence sent to another individual or institution upon the request of the student such as a reference letter
  • handwritten notes made by a tutor during a conversion with a student or about a student
  • completed assignments not returned to a student or sent to the Centre

Records considered an original record should be retained according to a centre's or department's retention and disposition schedules. Contact the appropriate centre or department for more information about the records if in doubt. Schedule A of the Student Confidentiality Policy of the Office of the Registrar lists the retention and disposition schedules for student records received and maintained by that office. The policy and schedule are available from the online policy manual

Records that are used to make a decision about an individual must be retained for one year from the date the records were last used to comply with the FOIP Act. If copies of the record exist, the copies may be disposed accordingly, as the "original" will be maintained for the required period by the department having custody of the original record.

Some records will be copies with the original being maintained by the centre the tutor is associated with or a department of AU. The records may include student profiles, completed tutor marked exercises, correspondence or email from an AU centre or department that a tutor was copied on, or class lists. These records should be retained as required and then disposed of accordingly.

Examples of retention and disposition periods for some records:

Record Type

Retention Period

Disposition

Assignments (original returned to student and a copy retained by tutor)

If the copy is retained only for the purpose of reviewing the assignment with the student or for an appeal process, then the assignment can be destroyed after the review or appeal period is completed.

If the copy is retained for a longer period of time then it should be retained for at least one year from the date the record was used.

Shredding

Assignments not returned to the student as in the case of received assignments with no identifying information (name, address, ID number)

One year from the date the record was used.

Shredding

Exams (original returned to AU and a copy retained by tutor)

If the copy is retained only for the purpose of reviewing the exam with the student or for an appeal process, then the exam can be destroyed after the review is completed.

If the copy is retained for a longer period of time then it should be retained for at least one year from the date the record was used.

Shredding

TMEs (copy retained by tutor)

As required if a copy was forwarded to the Centre or for one year if no copy was forwarded to the Centre.

Shredding

TMEs (copy retained by Centre)

One year.

Shredding

Emails about university social activities

As required. These would be considered to be a transitory record.

Deletion

Emails from and to a student that relate to the course and provide direction or decision

If the information is transferred to the student database or a log record then the email may be deleted. If the information is not recorded elsewhere then the email (paper or electronic) must be retained for one year from the date the record was used.

Deletion

Student profiles (copy provided to tutor)

As required. Usually only for the course contract period.

Shredding

Correspondence - reference letters written by tutor upon request from a student

One year from the date the record was used.

Shredding

Correspondence - that provides direction or decision

If the information is transferred to the student database or a log record then the correspondence may be destroyed. If the information is not recorded elsewhere then the correspondence must be retained for one year from the date the record was used.

Shredding

Notes about the student

One year from the date the record was used.

Shredding

Class lists

As required.

Shredding

Disposition of records that contain personal information should be shredded. If you do not own a shredder, return the records to Tutorial Services or Learning Centres for shredding. Clearly label the package as records for shredding.


Office of the University Secretariat, July 2006

Updated May 30 2014 by Office of the University Secretariat

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