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Privacy or Access to Information for Public Complaints (5:IV) (view source)
Revision as of 23:08, 17 July 2017
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== A. Introduction == | == 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 | 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 | 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. At Common Law == | == B. At Common Law == | ||
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== C. Wiretap Legislation and Lawful Access == | == 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. | 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. 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. Federal Privacy Act, Federal Access to Information Act == | ||
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This Act gives a Canadian citizen or permanent resident the right to access any record under the control of a federal government institution. | This Act gives a Canadian citizen or permanent resident the right to access any record under the control of a federal government institution. | ||
'''NOTE:''' If you are seeking to obtain information about an individual person, see section | '''NOTE:''' If you are seeking to obtain information about an individual person, see section IV.D.2 on the application of the ''Privacy Act''. | ||
Certain classes of information are exempt from the Act. These include confidential inter-governmental communications, information pertaining | Certain classes of information are exempt from the Act. These include confidential inter-governmental communications, information pertaining to law enforcement and investigations, trade secrets, personal information, and generally anything likely to be harmful to Canada’s security interest. | ||
'''NOTE:''' In the Supreme Court of Canada decision Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23, the Court held that the guarantee of freedom of expression under subsection 2(b) of the Charter does not guarantee access to all documents in government hands. In that case, the Court adopted the test for whether freedom of expression was infringed found in ''Irwin Toy Ltd v Quebec (Attorney General)'', [1989] 1 SCR 927, and determined that freedom of expression was not infringed by the ''Freedom of Information and Protection of Privacy Act'', RSO 1990, c F.31. See both these cases for more detailed information. | '''NOTE:''' In the Supreme Court of Canada decision Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23, the Court held that the guarantee of freedom of expression under subsection 2(b) of the Charter does not guarantee access to all documents in government hands. In that case, the Court adopted the test for whether freedom of expression was infringed found in ''Irwin Toy Ltd v Quebec (Attorney General)'', [1989] 1 SCR 927, and determined that freedom of expression was not infringed by the ''Freedom of Information and Protection of Privacy Act'', RSO 1990, c F.31. See both these cases for more detailed information. | ||
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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. | *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. | *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. Note: Requests for information under the Privacy Act does not require a fee. | ||
*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. | *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. | ||
**'''NOTE:''' The Federal government has introduced changes to the Access to Information Act which will strengthen the powers of the Information Commissioner to force the release of information and shorten timelines. The proposed changes are still pending but should be consulted when making access to information requests. | |||
*Complaints should be sent to: | *Complaints should be sent to: | ||
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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 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. | 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 | **NOTE: It is helpful to check to see if the organisation 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 organisation. | ||
*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. | *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. | ||
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== F. BC Personal Information Protection Act == | == 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 | The BC ''PIPA'' is an attempt by the province to maintain jurisdiction over the regulation of private business, historically under the Province's 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 PIPA-Applicable organizations in British Columbia to which ''PIPA'' applies from application of the federal ''PIPEDA''. | ||
== G. BC Freedom of Information and Protection of Privacy Act == | == G. BC Freedom of Information and Protection of Privacy Act == | ||
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=== 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 and privacy legislation relating to '''public''' organizations. As a result of this provincial legislation, there is a consistent policy regarding | 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 standardized decision-making criteria in regards to access and privacy; and | ||
*it has established a uniform appeal process. | *it has established a uniform appeal process. | ||
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[http://fipa.bc.ca/home/ Freedom of Information and Privacy Association] | [http://fipa.bc.ca/home/ Freedom of Information and Privacy Association] | ||
Also, the BC Civil Liberties Association has published a handbook on privacy that provides detailed information about various aspects of the | Also, the BC Civil Liberties Association has published a handbook on privacy that provides detailed information about various aspects of the law relating to privacy. It can be found online at http://bccla.org/privacy-handbook. | ||
=== 2. Scope of Freedom of Information Rights === | === 2. Scope of Freedom of Information Rights === | ||
Section 3 of the ''FIPPA'' provides that the Act applies to all records in the custody or control of a “public body”, with notable exceptions | Section 3 of the ''FIPPA'' provides that the Act applies to all records in the custody or control of a “public body”, with notable exceptions in paragraphs 3(1)(a) to (k). In addition to the entities defined as public bodies in Schedule 1, including BC government ministries, municipalities, hospitals, and universities and colleges, Schedule 2 lists specific organizations that are covered by the Act, including BC Hydro, ICBC, Legal Services Society, Mental Health Act Assessment Committees, and the Workers’ Compensation Board. | ||
In July 1993, an amendment to the ''FIPPA'' expanded the scope of the legislation to include governing bodies of various professions within | In July 1993, an amendment to the ''FIPPA'' expanded the scope of the legislation to include governing bodies of various professions within the scope of the Act. These professions include lawyers, accountants, engineers, teachers, doctors, and nurses (see Schedule 3). | ||
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: | ||
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*legal advice (s 14); | *legal advice (s 14); | ||
*information harmful to law enforcement (s 15); | *information harmful to law enforcement (s 15); | ||
*information harmful to intergovernmental relations (s 16); | *information harmful to intergovernmental relations or negotiations (s 16); | ||
*financially sensitive data (s 17); | *financially sensitive data (s 17); | ||
*information harmful to heritage sites or endangered species (s 18) | *information harmful to heritage sites or endangered species (s 18) | ||
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*information relating to abortion services (s 22.1). | *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 | 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 public-interest override in s 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. | ||
'''NOTE:''' In ''Re South Coast BC Transportation Authority'', [2009] BCIPCD No 20, it was decided that Translink was a public body. Thus, public disclosure of employment records for Translink employees would not be an unreasonable invasion of third party privacy. However, this was based on a rebuttal of the presumption that a disclosure of personal information is an unreasonable invasion of a third party’s personal privacy if the personal information describes the third party's finances, income, etc. A change of circumstances could change the outcome. In ''Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component'',[2009] 2 SCR 295, Translink was found to be a government entity under section 32 of the ''Charter of Rights and Freedoms'' [''Charter''], and thus subject to ''Charter'' scrutiny. | '''NOTE:''' In ''Re South Coast BC Transportation Authority'', [2009] BCIPCD No 20, it was decided that Translink was a public body. Thus, public disclosure of employment records for Translink employees would not be an unreasonable invasion of third party privacy. However, this was based on a rebuttal of the presumption that a disclosure of personal information is an unreasonable invasion of a third party’s personal privacy if the personal information describes the third party's finances, income, etc. A change of circumstances could change the outcome. In ''Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component'',[2009] 2 SCR 295, Translink was found to be a government entity under section 32 of the ''Charter of Rights and Freedoms'' [''Charter''], and thus subject to ''Charter'' scrutiny. | ||
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In general, a public body must collect personal information directly from the individual (s 27). Notable exceptions include: when an alternative method is authorized by the individual, by the Privacy Commissioner, or under another statute; and when the information is used for the purpose of collecting a debt or fine or making a payment. Except where the information is collected for law enforcement purposes, the public body must also tell the individual from whom it collects personal information the purpose and the legal authority for collecting it. | In general, a public body must collect personal information directly from the individual (s 27). Notable exceptions include: when an alternative method is authorized by the individual, by the Privacy Commissioner, or under another statute; and when the information is used for the purpose of collecting a debt or fine or making a payment. Except where the information is collected for law enforcement purposes, the public body must also tell the individual from whom it collects personal information the purpose and the legal authority for collecting it. | ||
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 | 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). | ||
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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. | 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 | Always check with the organisation 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. | 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. | ||
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Employment or volunteer candidates who are asked by their potential employer or volunteer organization to provide a police information check should be aware that potential employers and volunteer organizations may only use relevant information to determine the suitability of a candidate. In particular, the BC Human Rights Code, RSBC 1996, c 210, s. 13 makes it illegal to discriminate based on being convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of a person. | Employment or volunteer candidates who are asked by their potential employer or volunteer organization to provide a police information check should be aware that potential employers and volunteer organizations may only use relevant information to determine the suitability of a candidate. In particular, the BC Human Rights Code, RSBC 1996, c 210, s. 13 makes it illegal to discriminate based on being convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of a person. | ||
The British Columbia Provincial Policing Model Policy Guidelines operate to ensure that policies and practices align among police agencies in British Columbia so that citizens, employers and volunteer | The British Columbia Provincial Policing Model Policy Guidelines operate to ensure that policies and practices align among police agencies in British Columbia so that citizens, employers and volunteer organisations receive consistent Criminal and Police Information Checks. The following is a summary of the Guidelines. | ||
If working with vulnerable persons, employment or volunteer candidates may be asked by their potential employer or volunteer | If working with vulnerable persons, employment or volunteer candidates may be asked by their potential employer or volunteer organisation to provide a vulnerable sector check. Vulnerable persons are individuals, because of their age, disability or other circumstances, whether temporary or permanent are (a) in a position of dependence on others or (b) are otherwise at a greater risk than the general population of being harmed by a person in a position of authority or trust relative to them, as defined by the Criminal Records Act. | ||
Vulnerable sector checks | Vulnerable sector checks consist of screening designed to protect vulnerable persons from dangerous offenders by uncovering the existence of a criminal record, adverse police contact, and/or pardoned (or record suspension) sexual offence conviction. This level of screening is restricted to applicants seeking employment and/or volunteering with vulnerable persons. | ||
The Guidelines stipulate that the board, chief constable, chief officer, or commissioner should ensure that: | The Guidelines stipulate that the board, chief constable, chief officer, or commissioner should ensure that: | ||
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http://vancouver.ca/police/organization/records-checks-fingerprinting/index.html | http://vancouver.ca/police/organization/records-checks-fingerprinting/index.html | ||
Please consult page | Please consult page 39 of Chapter 1: Criminal Law, located in the Law Students’ Legal Advice Program’s manual for information explaining the importance of consenting to disclosure, what information third parties may find out, the impact of having a criminal record, elimination of records, and record suspensions: | ||
http://www.lslap.bc.ca/lslap-manual-online.html | http://www.lslap.bc.ca/lslap-manual-online.html | ||
If an individual disagrees with a decision of the police officer, such as to not provide a police information check or with the information provided on the police information checks, the individual can appeal the decision internally within the police department. The individual can submit a request to the head of the records check department within the police department where they made the initial information check request for a review of the decision. If the individual still disagrees with the appealed decision, then the next avenue of appeal, if one is available, remains unclear. It is possible that an applicant may file for Judicial Review of the police department’s decision (see III.C.1 on Judicial Review). The Privacy Commissioner’s Office may possibly have jurisdiction over these matters, although their current position is that a police information check is different than a request for release of information, and is not covered by their legislation. | |||
{{LSLAP Manual Navbox|type = chapters1-7}} | {{LSLAP Manual Navbox|type = chapters1-7}} | ||