Difference between revisions of "Privacy or Access to Information for Public Complaints (5:IV)"

{{REVIEWED LSLAP | date= July 31, 2020}}

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.

'''NOTE:''' Per amendments made to the Access to Information Act and the Privacy Act, a ministerial advisor and a member of a ministerial staff are excluded from the definition of “personal information”.  

| online = [http://www.oic-ci.gc.ca/eng/ Website] <br /> E-mail: greffe-registry@oic-ci.gc.ca

*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.

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 from the application of the federal ''PIPEDA''.

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.  

'''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 ''[https://www.canlii.org/en/ca/scc/doc/2009/2009scc31/2009scc31.html?resultIndex=1 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.  

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.

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 ($54.43 including applicable taxes) should be placed in an envelope and mailed to the following address:  

:::Attention Correspondent Unit   

See here for full details: http://vancouver.ca/police/organization/support-services/request-police-report.html              

'''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.).  

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 a 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''.

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.  

Actions under the ''Privacy Act'' must be brought in the Supreme Court.

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 organizations 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 organization to provide a vulnerable sector check.  Vulnerable persons are individuals who, 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''.  

Please consult page 31 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:

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.