Outsourcing and Contracting
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A "public body" is defined in FOIPPA to include most government bodies, agencies, ministries and departments, and many other crown agencies that are otherwise at arms-length from government. 1
Personal Information that is in the custody or under the control of a public body is subject to FOIPPA. If a public body contracts with a private company or a non-profit organization to carry out some of its functions or deliver a service, and that company or organization actually handles the personal information, there may be a question about whether FOIPPA applies to that information.
It is not always immediately obvious which law applies when governments use private contractors or a non-profit society to provide services. Sometimes this question has to be determined by a judge or the Information and Privacy Commissioner. They will look at factors such as whether there is a contract between the third-party service provider and the public body or whether the individual or employee was creating or collecting the records for the purposes of the public body, among other factors.
Generally, when a public body contracts with a private sector organization to carry out a function of the public body, the records collected, used and disclosed by the private sector organization in the course of its duties to the public body will be covered by FOIPPA.
The Information and Privacy Commissioner of BC has said many times that a public body has a duty to ensure that personal information is kept secure, including personal information in the hands of a contractor or agent. As part of this duty the public body must use a contract to ensure that the agent or contractor uses adequate security measures.The public body cannot escape any of its obligations under FOIPPA by using a private sector organization to carry out its functions. Similarly, the private company or non-profit cannot escape its duties under the Personal Information Protection Act, just because it does some work for the government. The company or non-profit will still have to follow the law that applies to it, even if it also has to make sure it meets the requirements in FOIPPA because of its work for the government.
1. A public body is defined in FOIPPA to include: a ministry of the government of British Columbia, an agency, board, commission, corporation, office or other body designated in, or added by regulation to, Schedule 2 of FOIPPA or a local public body (as defined in FOIPPA).
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