Privacy or Access to Information for Public Complaints (5:IV): Difference between revisions
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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. | 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. | == B. 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. | |||
== C. Wiretap Legislation and Lawful Access == | |||
Individuals interested in information on wiretapping and lawful access to information should contact the BC Civil Liberties Association, who specialize 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. | |||
== D. Federal Privacy Act, Federal Access to Information Act == | |||
== D | |||
=== 1. Introduction === | === 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. | 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. Individuals should consult the Acts themselves if they have a problem in this area. | ||
=== 2. Privacy Act === | === 2. Privacy Act === | ||
If | If an individual 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: | ||
* | *the information collected must relate directly to an operating program or activity of the institution (s 4); | ||
* | *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); | ||
* | *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 | ||
* | *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 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 | 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: | ||
==== BC Freedom of Information and Privacy Association ==== | ==== BC Freedom of Information and Privacy Association ==== | ||
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The procedure for obtaining a government record is as follows: | The procedure for obtaining a government record is as follows: | ||
* | *Go to http://canada.justice.gc.ca/eng/trans/atip-aiprp for the Access to Information and Privacy website, which offers a brochure about using the Act, online access to Info Source, and online forms. Alternatively, any public library provides the same information. Info Source is a directory that describes each federal government institution and the information it holds, as well as the title and address of the appropriate officer to whom requests should be sent. | ||
* | *Formally request the records by sending in the online or printed request forms, or by sending a letter. Be as specific as possible citing subject, dates, events, and individuals. Enclose a $5.00 payment, but ask that this and any other fees be waived on the grounds that the release of records would be of “general public benefit” or that similar information has been released in the past. | ||
* | *Once the institution receives a request, it has 30 days to give notice of whether access will be given. Senior officials can extend this time limit if they give notice of extension. If third parties are involved, the time limit is 80 days. If access is refused, they must inform the person making the request of the right to make a complaint to the Information Commissioner. | ||
**'''NOTE:''' It can take up to one year to receive records to which access is given. There is no meaningful redress for delays of this nature. | **'''NOTE:''' It can take up to one year to receive records to which access is given. There is no meaningful redress for delays of this nature. | ||
* | *Complaints should be sent to: | ||
'''Office of the Information Commissioner''' | '''Office of the Information Commissioner''' | ||
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}} | }} | ||
The Information Commissioner investigates complaints in private, and each party has the right to make representations. Similar to an Ombudsperson, the Commissioner can only | The Information Commissioner investigates complaints in private, and each party has the right to make representations. Similar to an Ombudsperson, the Commissioner can only make recommendations, and cannot directly compel the release of information. However, he or she can take the institution to Federal Court to compel the release of the information. The Commissioner is not obligated to take on a case, and if he or she refuses to do so, there is no right to appeal this refusal. | ||
**NOTE: It is helpful to check to see if the organization you are requesting information about has a form of its own. It would cut down on time for the form to go directly to the organization. | **NOTE: It is helpful to check to see if the organization you are requesting information about has a form of its own. It would cut down on time for the form to go directly to the organization. | ||
* | *There is, however, a right to appeal the original denial of access; this appeal must be made to the Federal Court within '''45 days''' of the decision of the Information Commissioner (s 41). In court, the burden of proof is on the government to show that the information must be withheld. | ||
== | == E. Federal Personal Information Protection and Electronic Documents Act == | ||
=== 1. Introduction === | === 1. Introduction === | ||
The federal ''Personal Information Protection and Electronic Documents Act'', SC 2000, c 5 [''PIPEDA''], is intended to remedy some of the problems encountered by consumers and by businesses when information relating to consumer habits is collected to be used internally or externally by private sector organizations. ''PIPEDA'' is a federal law governing: | The federal ''Personal Information Protection and Electronic Documents Act'', SC 2000, c 5 [''PIPEDA''], is intended to remedy some of the problems encountered by consumers and by businesses when information relating to consumer habits is collected to be used internally or externally by private sector organizations. ''PIPEDA'' is a federal law governing: | ||
* | *the collection, protection, and disclosure of personal information; and | ||
* | *the use of electronic versions of official documents on paper, in the public and private sphere. | ||
While ''PIPEDA'' is a federal act, the legislation claims to have jurisdiction over the provincially regulated private sector as well as the federal sector. However, subsection 26(2) of the Act gives the Governor-in-Council the power to exempt an organization where substantially similar provincial legislation exists. Almost all provinces have enacted their own version of the Act. In October 2003, BC passed the ''Personal Information Protection Act'', SBC 2003, c 63 [''PIPA''], which has been declared substantially similar legislation. | While ''PIPEDA'' is a federal act, the legislation claims to have jurisdiction over the provincially regulated private sector as well as the federal sector. However, subsection 26(2) of the Act gives the Governor-in-Council the power to exempt an organization where substantially similar provincial legislation exists. Almost all provinces have enacted their own version of the Act. In October 2003, BC passed the ''Personal Information Protection Act'', SBC 2003, c 63 [''PIPA''], which has been declared substantially similar legislation. | ||
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Stephanie Perrin, Heather Black & David Flaherty, ''The Personal Information Protection and Electronic Documents Act: An Annotated Guide'' (Toronto: Irwin Law, 2001). | Stephanie Perrin, Heather Black & David Flaherty, ''The Personal Information Protection and Electronic Documents Act: An Annotated Guide'' (Toronto: Irwin Law, 2001). | ||
== | == F. BC Personal Information Protection Act == | ||
The BC ''PIPA'' is an attempt by the province to maintain jurisdiction over the regulation of private business, historically under its control. The purpose of this Act is to govern the collection, use, and disclosure of personal information by '''private''' organizations. The Act has been in force since 2004 and has been declared substantially similar by the Governor-in-Council, thereby exempting organizations in British Columbia to which ''PIPA'' applies from application of the federal ''PIPEDA''. | The BC ''PIPA'' is an attempt by the province to maintain jurisdiction over the regulation of private business, historically under its control. The purpose of this Act is to govern the collection, use, and disclosure of personal information by '''private''' organizations. The Act has been in force since 2004 and has been declared substantially similar by the Governor-in-Council, thereby exempting organizations in British Columbia to which ''PIPA'' applies from application of the federal ''PIPEDA''. | ||
== | == G. BC Freedom of Information and Protection of Privacy Act == | ||
=== 1. Introduction === | === 1. Introduction === | ||
The ''Freedom of Information and Protection of Privacy Act'', RSBC 1996, c 165 [''FIPPA''], is similar in some respects to the federal access | The ''Freedom of Information and Protection of Privacy Act'', RSBC 1996, c 165 [''FIPPA''], is similar in some respects to the federal access and privacy legislation relating to '''public''' organizations. As a result of this provincial legislation, there is a consistent policy regarding access and privacy for BC government ministries and agencies. The Act is significant for two reasons: | ||
* | *it has standardized decision-making criteria in regards to access and privacy; and | ||
* | *it has established a uniform appeal process. | ||
This Act is amended from time to time. It is advisable to consult the Act for certainty when advising a client. Further information about the Act can be obtained from the following organization: | This Act is amended from time to time. It is advisable to consult the Act for certainty when advising a client. Further information about the Act can be obtained from the following organization: | ||
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Sections 12 to 22.1 restrict the disclosure of information. The following may '''not''' need to be disclosed: | Sections 12 to 22.1 restrict the disclosure of information. The following may '''not''' need to be disclosed: | ||
* | *cabinet and local public body confidences (s 12); | ||
* | *policy-oriented information (s 13); | ||
* | *legal advice (s 14); | ||
* | *information harmful to law enforcement (s 15); | ||
* | *information harmful to intergovernmental relations (s 16); | ||
* | *financially sensitive data (s 17); | ||
* | *information harmful to heritage sites or endangered species (s 18) | ||
* | *information harmful to safety (s 19); | ||
* | *confidential third-party business information (s 21); | ||
* | *information harmful to a third party’s personal privacy (s 22); and | ||
* | *information relating to abortion services (s 22.1). | ||
It is worth noting that some of the exceptions are mandatory (ss 21 and 22 on third-party business) and others discretionary (ss 13 to 19). There is also a public-interest override in section 25, which requires disclosure of information about risk of significant harm to the environment, or public health or safety, or in other circumstances where disclosure is clearly in the public interest. | It is worth noting that some of the exceptions are mandatory (ss 21 and 22 on third-party business) and others discretionary (ss 13 to 19). There is also a public-interest override in section 25, which requires disclosure of information about risk of significant harm to the environment, or public health or safety, or in other circumstances where disclosure is clearly in the public interest. | ||
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The public body has a duty to ensure the information it collects is accurate (s 28). An individual has the right to request correction if he or she believes there is an omission or error in the personal information (s 29). | The public body has a duty to ensure the information it collects is accurate (s 28). An individual has the right to request correction if he or she believes there is an omission or error in the personal information (s 29). | ||
Heads of public bodies must protect personal information by requiring reasonable security arrangements against unauthorized access, collection, use, disclosure, or disposal (s 30). Public bodies must ensure that information in their custody is stored only in Canada and accessed only in Canada unless an individual consents otherwise, or the disclosure is allowed under the Act (s 30.1). | Heads of public bodies must protect personal information by requiring reasonable security arrangements against unauthorized access, collection, use, disclosure, or disposal (s 30). Public bodies must ensure that information in their custody is stored only in Canada and accessed only in Canada unless an individual consents otherwise, or the disclosure is allowed under the Act (s 30.1). | ||
Employees of a public body must notify the minister when a foreign demand for disclosure is requested (s 30.2). Section 30.3 provides whistle-blower legislation to protect employees fulfilling this obligation. | |||
Public bodies that use an individual’s personal information to make decisions that directly affect the individual must retain that information for at least one year after using it, so that the individual has an opportunity to obtain it (s 31). Further, a public body can only use personal information for the purpose for which that information was obtained, or for a use consistent with that purpose (s 32). | |||
Sections 33 to 36 deal with disclosure of personal information by a public body. These sections empower a public body to disclose personal | Sections 33 to 36 deal with disclosure of personal information by a public body. These sections empower a public body to disclose personal information only under certain circumstances, such as where there is consent of the individual; where the information is used for a consistent purpose or for the purpose of complying with another enactment; where the information is used for collecting a debt, payment, or fine owing by the individual to the provincial government or a public body; where the information is used in an audit; and where the information is used by a public body or a law enforcement agency to assist in an investigation in which a law enforcement proceeding is intended or likely to result. | ||
=== 4. Process of Making a Disclosure Request === | === 4. Process of Making a Disclosure Request === | ||
==== | ==== Step One: Requesting Disclosure or Correction ==== | ||
An individual can send a letter to a public body asking for disclosure of information pertaining to that individual or for a correction of information. If the request is for access to information, the head of the public body then has 30 days to respond (this time limit can be extended under section 10). Section 8 requires that any response must either (a) inform the individual of where, when, and how the record will be disclosed, or (b) detail the reasons the request was denied. | |||
If the request is for a correction of information held by the public body, the head of the public body must either (a) correct the record, or (b) annotate the information with the correction that was requested. The head of the public body must next notify all other parties to whom the information in question has been disclosed within the past year. | |||
Always check with the organization itself to see if it has its own form for requests; this makes the process much faster. | |||
To obtain a copy of a police report, complete the form provided by the “Information and Privacy” section of the police department from which you are requesting the records (for the VPD, you will find the form here: http://vancouver.ca/police/assets/pdf/forms/vpd-form-foi-request.pdf). Include a copy of the person’s driver’s licence if possible, and a cover letter explaining the details of the report you are looking for. If you are asking to receive documents on someone’s behalf you will also need them to sign an authorization or release. Typically there is no charge if you are requesting documents that relate to an interaction you had with police. | |||
If a person has been a victim of property crime, their insurance company might require them to obtain a copy of the police report. Sometimes the insurer will make the request for you. To obtain this record, fill out the request for property report form, or send in a written request | If a person has been a victim of property crime, their insurance company might require them to obtain a copy of the police report. Sometimes the insurer will make the request for you. To obtain this record, fill out the request for property report form, or send in a written request with the following information: police file number, full name, current address, telephone number, location of incident, type of incident, and any other helpful details. There is a fee for this service, and the letter and payment ($53.33 including HST) should be placed in an envelope and mailed to the following address: | ||
:::Attention Correspondent Unit | :::Attention Correspondent Unit | ||
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For further information on the process of making a disclosure request, contact: | For further information on the process of making a disclosure request, contact: | ||
The Information and Privacy Commissioner for British Columbia PO Box 9038, Stn. Prov. Govt. Victoria, | '''The Information and Privacy Commissioner for British Columbia''' | ||
{{ResourcesLSLAP_nodescription | |||
| address = PO Box 9038, Stn. Prov. Govt., Victoria, British Columbia, V8W 9A4 | |||
| phone = (250) 387-5629 <br /> Fax: (250) 387- 1696 | |||
| online = [http://www.oipc.bc.ca/ Website] <br /> Email: info@oipc.bc.ca | |||
}} | |||
'''NOTE:''' The public body to which a request is made may charge to not only provide a copy of the record and its shipping and handling, but for the time spent locating the record and preparing it for disclosure (''FIPPA'' s 75(1)). They cannot charge, however, for the first 3 hours spent locating and retrieving a record and time spent severing information (s 75(2)). Likewise, these fees do not apply to a request for the applicant’s own personal information (s 75(3)). If a request for payment is made, send a letter explaining that the fee should be waived because (1) you cannot afford payment; (2) it is fair to excuse payment, or; (3) the record relates to a matter of public interest (e.g., the environment, public health and safety, etc.). | '''NOTE:''' The public body to which a request is made may charge to not only provide a copy of the record and its shipping and handling, but for the time spent locating the record and preparing it for disclosure (''FIPPA'' s 75(1)). They cannot charge, however, for the first 3 hours spent locating and retrieving a record and time spent severing information (s 75(2)). Likewise, these fees do not apply to a request for the applicant’s own personal information (s 75(3)). If a request for payment is made, send a letter explaining that the fee should be waived because (1) you cannot afford payment; (2) it is fair to excuse payment, or; (3) the record relates to a matter of public interest (e.g., the environment, public health and safety, etc.). | ||
==== | ==== Step Two: Filing a Complaint with the Information and Privacy Commissioner ==== | ||
If the public body refuses to disclose the information or make the requested correction, the next step | If the public body refuses to disclose the information or make the requested correction, the next step is to file a complaint with the Information and Privacy Commissioner. Under section 42, the Commissioner oversees the administration of the Act. An individual can ask the Commissioner to review any decision pertaining to access or correction within 30 days of notification of the decision (although paragraph 53(2)(b) allows the Commissioner to extend this limitation period). Please refer to the ''FIPPA'' and its regulations for a detailed description of the review process. | ||
The Commissioner has significant power to enforce judgment (much more so than the equivalent federal official). Generally, the burden is on the public body to justify its refusal to disclose information (although there are notable exceptions pertaining to third-party interests (see s 57)). The head of a public body must comply with an order of the Commissioner unless an application for judicial review is brought within 30 days (s 59). A person other than the head of a public body who is dissatisfied with a decision of the Commissioner may seek judicial review pursuant to the ''Judicial Review Procedure Act''. | The Commissioner has significant power to enforce judgment (much more so than the equivalent federal official). Generally, the burden is on the public body to justify its refusal to disclose information (although there are notable exceptions pertaining to third-party interests (see s 57)). The head of a public body must comply with an order of the Commissioner unless an application for judicial review is brought within 30 days (s 59). A person other than the head of a public body who is dissatisfied with a decision of the Commissioner may seek judicial review pursuant to the ''Judicial Review Procedure Act''. | ||
== | == H. The BC Privacy Act == | ||
BC ''Privacy Act'', RSBC 1996, c 373, makes it a “tort, actionable without proof of damages, for a person, wilfully and without claim of right, to violate the privacy of another”. Subsection 1(2) of the Act entitles a person to the nature and degree of privacy that is “reasonable in the circumstances”, but the Act itself gives limited guidance to the courts on what particular circumstances are deemed to be an unreasonable invasion of privacy. However, section 2 does set out a number of defences. | BC ''Privacy Act'', RSBC 1996, c 373, makes it a “tort, actionable without proof of damages, for a person, wilfully and without claim of right, to violate the privacy of another”. Subsection 1(2) of the Act entitles a person to the nature and degree of privacy that is “reasonable in the circumstances”, but the Act itself gives limited guidance to the courts on what particular circumstances are deemed to be an unreasonable invasion of privacy. However, section 2 does set out a number of defences. |