Designating Organizations Under FIPPA

An organization which does not fall under FIPPA by definition may be brought under the Act by designation. This means that the Manitoba government has decided that the organization should be subject to FIPPA, even though it does not fall under the legislation by definition. An organization can be designated as a government agency, health care body, educational body or Local Government body for purposes of FIPPA.

To be brought under FIPPA by designation, an organization must be named on a Schedule in the Regulation. These Schedules are approved the Lieutenant Governor in Council (i.e. the Cabinet). The work of drafting the Schedules, including consultations with public bodies and others, is undertaken by Access to Information and Privacy staff.

An organization brought under FIPPA by designation has the same responsibilities as an organization that falls under the Act by definition. It must respond to requests for access to records and protect personal information as required under the Act. Designated organizations also fall under The Personal Health Information Act (PHIA) because PHIA specifically applies to all public bodies falling under FIPPA.

Factors in Deciding Whether to Designate an Organization as a “Government Agency” under FIPPA

When considering whether to recommend that an organization be designated as a government agency under FIPPA, a government department should consider various factors.

Governance: What is the governing structure of the organization? Who appoints the members of the organization and the members of the governing board of the organization? If a Minister appoints all members of an organization’s board of directors, there is a strong argument for designating the organization. Many of the organizations currently designated have boards which are wholly appointed by a minister or are committees whose members are all appointed by a minister. On the other hand, if the Manitoba government (or a minister) does not appoint any members of the board, the organization is probably not a “public” body in the usually understood sense.
Control and Accountability: To what extent are the activities of the organization controlled by the Manitoba government and to what extent is the organization accountable to that government? Would application of FIPPA to the organization be inconsistent with its structure? For example, when an organization is jointly established by the federal and provincial governments and each government appoints some directors to its governing board, it is probably not appropriate to bring that organization under provincial access and privacy legislation without the agreement of the federal government. An example is the North Portage Development Corporation which was established by Canada, Manitoba and the City of Winnipeg.
Types of Services: What types of activities does the organization perform? Does it carry out, or has it taken over, a provincial government program or services which would otherwise be provided directly by a government department?
Funding: The extent of Manitoba government funding is one, but not the most critical, factor to consider.
Consistency: Has this type of organization been designated under FIPPA for policy reasons in the past? Conversely, has there been a policy decision in the past to not include the organization under FIPPA – and if so, have circumstances changed? Does the organization fall under The Personal Health Information Act, but not under FIPPA, and is there a policy reason for this?
Policy, Political or Historical Considerations: Has the organization traditionally been independent of government and is this independence important to the organization? How would it view being subject to FIPPA?
Mandate: Would coming under the access to information and privacy regime in FIPPA be compatible with the organization’s mandate? It should be kept in mind that the access to information scheme in FIPPA was developed with the public sector, not the private sector, in mind. Are there other adequate or more appropriate ways to achieve some of the fundamental purposes of FIPPA – for example, does the organization fall under the federal Personal Information Protection and Electronic Documents Act? Can privacy issues be addressed by means of a contract with the corporation, etc?

^ back to top

Examples

Manitoba Housing Authority – Designated in 1998

established by Order in Council under The Housing and Renewal Corporation Act
all members of the board of directors are appointed by the Minister of Family Services and Housing

Manitoba Products Stewardship Corporation – Designated in 1998

established by regulation under The Waste Reduction and Prevention Act
board of directors is partly appointed by the Minister of Conservation

Chiropractic Review Panel – Designated in 1998

established by policy
all members of the board of directors are appointed by the Minister of Family Services and Housing

Child and Family Service Authorities – Designated in 2003

established under The Child and Family Services Authorities Act
the CFSA Act provides how the board of directors of each authority is appointed; all members of the Board of the General Authority are appointed by the Minister of Family Services and Housing; others are appointed by aboriginal organizations
minister is responsible for setting provincial objectives, policies and standards, and to monitor how these are carried out
funded by the provincial government
provide a service to the public which would otherwise have to be provided by the government

Private schools – Not designated

government does not appoint directors to the governing boards of private schools
minimal regulation of programs under The Public Schools Act
some funding by government
strong tradition of autonomy and sensitivity to government control, especially among faith-based schools

EDS – Not designated

a private-sector company which provides desktop management services to the government under contract
government does not appoint any members of the corporation or of the board of directors
there is no substantial governmental control with respect to its general operations