Privacy or Access to Information for Public Complaints (5:IV)

A. Introduction

Although the right to privacy is fundamental to the healthy exercise of democratic rights, recognition and practical enforcement of this right by legislators and the courts has been slow. This problem has many sources, but underlying it is the enormous difficulty jurists have found in coming to an understanding of what is meant and entailed by this right.

The right to privacy is often balanced against the right to access information, since these rights frequently collide (e.g., when an employer wishes to obtain information about an employee from a government agency). In some cases, a right of access to information may determine whether or not an individual’s privacy has been violated. Legislation regulating access to government information is designed to ensure an informed citizenry; when someone seeks information that may injure the privacy interests of a third party, mechanisms exist to weigh privacy interests of the individual against the public interest in disclosure. The following provides a quick survey of the relevant privacy or access to information laws.

B. Governing Legislation and Resources

1. Legislation

Access to Information Act, RSC 1985, c A-1.

Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165.

Personal Information Protection and Electronic Documents Act, SC 2000, c 5.

Privacy Act, RSBC 1996, c 373.

Privacy Act, RSC 1985, c P-21.

NOTE: In May of 2010, the BC legislature released the Report of the Special Committee to Review the Freedom of Information and Protection of Privacy Act [Report]. The Special Committee reiterated the call for public bodies to adopt the practice of routine proactive disclosure of electronic records, made by the two previous statutory review committees. Other recommendations focused on more timely and efficient disclosure of information requests, appointing a Government Chief Privacy Officer, and giving the Privacy Commissioner expanded powers. For details, see the Report at http://www.leg.bc.ca/cmt/39thparl/session-2/foi/index.htm.

2. Resources

need to add contact info from p 5-10 and 5-11

C. At Common Law

At common law, the torts of trespass, nuisance, defamation, and invasion of privacy may discourage some of the more blatant forms of invasion of privacy. However, these civil actions do not so much ensure privacy as retroactively provide compensation for its breach.

D. Wiretap Legislation and Lawful Access

If a client asks for information on wiretapping and lawful access to information, they should be referred to the BC Civil Liberties Association, who specializes in dealing in these areas. See section II.I.1. The case law in this area is very complicated, and an experienced criminal lawyer should be consulted if issues regarding a wiretap arise.

E. Federal Privacy Act, Federal Access to Information Act

1. Introduction

The federal Access to Information Act, RSC 1985, c A-1, and the federal Privacy Act, RSC 1985, c P-21, both deal with freedom of information. The Access to Information Act allows for access to information in records under the control of federal government institutions. The Privacy Act protects the confidentiality of information about an individual held by federal government institutions, and provides individuals with a right of access to information about themselves held by such institutions. What follows is only a brief outline of the main provisions of these Acts. Students should consult the Acts themselves if they have a problem in this area.

2. Privacy Act

If a client wants to obtain information relating to themselves, they should make an application under the federal Privacy Act, and should make their application directly to the agency that has the information. The Privacy Act, RSC 1985, c P-21, sets out the conditions under which a government institution may collect, maintain, and use personal information about individuals. The Act requires that:

• a) the information collected must relate directly to an operating program or activity of the institution (s 4);
• b) information used in a decision-making process that directly affects the individual should be, wherever possible, collected directly from the individual to whom it relates, or with his or her consent, and the institution shall inform the individual of the purpose for which the information is being collected (s 5);
• c) the institution shall ensure that information used to make a decision about an individual is accurate, up-to-date and as complete as possible, that it is retained long enough for the individual to have a reasonable opportunity to obtain access to it, and that it is disposed of in accordance with the relevant regulations and ministry directives or guidelines (s 6); and d)the information shall not, without the consent of the individual, be used for any purpose except that for which it was obtained, for a use consistent with that purpose, or for other purposes specified in the Act (s 7). The Privacy Commissioner is authorized to oversee compliance by federal government institutions with the provisions of the Privacy Act. The Commissioner receives and investigates complaints from individuals, audits institutions’ storage and use of information, makes recommendations to institutions and the Treasury Board regarding privacy issues, and presents an annual report to Parliament. The Commissioner cannot make orders requiring bodies to comply with the Act, but may investigate and make reports. Individuals who are refused access to their own personal information may, after the Commissioner has investigated and reported, apply to the Federal Court for an order requiring access to this information. The Privacy Commissioner may also take enforcement proceedings in Federal Court in relation to a refusal to give an individual access to his or her own personal information. For further information contact: