May 31, 1996
The Honourable Speaker
Legislative Assembly of British Columbia
Victoria, British Columbia
V8V 1X4
Dear Honourable Speaker:
Pursuant to section 51 of the Freedom of Information and Protection of
Privacy Act, I have the honour to present my third Annual Report to the
Legislative Assembly. This report covers the period from April 1, 1995 to
March 31, 1996.
Sincerely,
David H. Flaherty
Commissioner
TABLE OF CONTENTS
III. INTRODUCTION
Background
The Commissioner
The Freedom of Information and Protection of Privacy Act
Public Bodies
IV. REQUESTS FOR REVIEW
Introduction
Requesting a Review
Sample Summaries of Recent Mediated Requests for Review
V. COMPLAINTS
Introduction
Making a Complaint
Sample Summaries of Recent Complaints
VI. STATISTICAL OVERVIEW
Introduction
Comparative Statistics
Public Body Statistics
Applicant Statistics
Settlement of Cases
VII. COMMISSIONER'S ORDERS
Introduction
The Inquiry Process
Making an Order
Compliance
Judicial Review
Availability of Orders
Sample Summaries of Recent Orders
VIII. INVESTIGATION REPORTS
Introduction
Sample Summary of a Recent Investigation Report
IX. SITE VISITS
Introduction
Conducting a Site Visit
Visits to Particular Public Bodies
X. PROVIDING ADVICE
Introduction
Criminal Record Checks
Identity Cards
Freedom of Information Requests and the Litigation Process
XI. INFORMING THE PUBLIC
Introduction
Presentations and Contact with the Media
Information and Privacy Conference '95
New Web Site
XII. TOWARD THE FUTURE
The Need for Private Sector Data Protection in British Columbia
APPENDICES
A. Financial Statement
B. Staff of the Office of the Information and Privacy Commissioner
C. Office Organizational Chart
D. Chronological Table of Orders
E. Table of Concordance (Between the Orders and the Act)
F. Table of Public Bodies that were the Subject of Orders
Reflection on my daily work during the past year has heightened my awareness of
the three main roles that I choose to concentrate on with respect to the myriad
choices before me as Information and Privacy Commissioner under section 42 of
the Freedom of Information and Protection of Privacy Act.
The first, and major, activity is to dispose of requests for review of
decisions of public bodies by holding inquiries and writing orders. When
applicants seek their own personal information, or general information, from
the thousands of public bodies as defined in the Act, and are not satisfied
with the response or with what they actually receive in the way of records,
they may bring a request for review to my Office. It remains of great
satisfaction to me that my colleagues mediate settlements to most of these
matters. Less than 8 percent of requests for review result in an inquiry. I
deal with these remaining cases by reaching a decision in a quasi-judicial
proceeding, which requires me to observe the principles of natural justice and
due process and to make reasonable decisions. This is work that I do by myself
in the first instance, on the basis of oral or written submissions to me from
parties and invited intervenors.
My second major role, as the self-proclaimed privacy watchdog for the province,
is much more proactive and, indeed, aggressive than the decision-making
function. I make this point to help the public distinguish between my roles as
Information Commissioner and as Privacy Commissioner. Even this distinction
blurs, however, in light of my efforts to promote information rights as part of
the statutory goal of promoting a more open and accountable society in this
province.
On the privacy side of our work, my colleagues and I investigate and respond to
complaints about perceived invasions of individual privacy, offer advice to
public bodies about the privacy implications of various proposals and
practices, and engage in the auditing of actual information-handling practices
during site visits to such diverse public bodies as Social Services offices,
hospitals, municipal police departments, municipalities, colleges, government
agents, and self-governing professional bodies, such as the Law Society of
British Columbia. This is largely a consciousness-raising activity among the
staff of these organizations about the importance of following fair information
practices and ensuring appropriate security in the collection, storage, and
disclosure of personal information entrusted to them.
The third major role that we play is the public education of interested persons
about their rights and responsibilities under the Freedom of Information and
Protection of Privacy Act, and about the resources and activities of my
Office. We issue news releases about orders, investigative reports, and
related privacy issues in particular, and speak to the media about current
privacy or access issues of general concern to the public. My colleagues join
with me in giving a considerable number of informal talks, speeches, and
written presentations during the course of a year, and we host conferences
highlighting the information and privacy issues of the day. I remain
optimistic with each passing month that more and more British Columbians are
becoming aware of their rights of access to general government information and
to the protection of their
personal privacy.
Every day brings a new challenge in my Office as specific cases come before me,
as events in the news reveal privacy and access issues of concern to the
public, and as technology develops and, in the name of progress, works to erode
the fundamental claim we as individuals may wish to make concerning our right
to have our personal privacy protected and to know what is going on in our
governments. I take comfort in the hard work of my colleagues and,
significantly, in the continued and growing interest of the public in keeping
me poised and vigilant in my role as the information and privacy watchdog for
British Columbia.
David H. Flaherty
I would like to begin with the clearly stated premise that I am an advocate for
the Freedom of Information and Protection of Privacy Act. Section 2
sets out the purposes of this important legislation, which are to make public
bodies more accountable to the public and to protect personal privacy. I
invite everyone to reflect for a minute or two on how profound and vital these
purposes are for all of us as citizens in a democratic society.
As Director of the Commissioner's Office, I have the opportunity to deal with
many different public bodies on issues that arise under the Act. Often, I am
told that this Act is not part of a public body's "core programs" and is an
unaffordable luxury. I strongly disagree with this notion. The rights
guaranteed to all citizens under the Act are "core functions" of every public
body. They are statutorily guaranteed rights of access and privacy, and as
such should be safeguarded rigorously.
I have been told that we do not need this legislation, as bureaucrats can and
should be the ones to decide what information an individual is entitled to
receive, since they know their programs best and what should or should not be
released. With the greatest respect, I think that this is a dangerous premise
and shows why we do need just this kind of legislation. The Act does not allow
for such arbitrary distinctions. It starts with the general principle that all
information should be released, unless it falls within one or more of a narrow
range of exceptions. Only three of these exceptions are mandatory and the rest
are at the discretion of the head of the public body. No one need look very
far to find other government regimes that carefully control and orchestrate the
flow of information to their citizens in order to realize how very fortunate we
are to have the rights of access that the British Columbia Act provides.
However, we must all be aware that these rights are in danger of being eroded.
The contracting out and privatization of work previously done by government
puts areas of information potentially outside the scope of the legislation.
This also means that one's rights to privacy are not guaranteed once personal
information about oneself is being collected, stored, or shared by individuals
and/or groups other than public bodies. Further, the community of people
committed to the principles of the Act and working in this area is shrinking as
government ministries are merged or disappear. This is a concern to those of
us left to uphold the principles of the Act.
I urge all of you to become part of the educated public, to be aware of your
rights of access to information and to protection of privacy, and to be clear
that you, too, believe that these are important democratic and human rights.
Lorrainne A. Dixon
This is the Office of the Information and Privacy Commissioner's third Annual
Report. It explains the mandate and role of the Commissioner and his Office,
it provides some information about the principles and practices of the
Freedom of Information and Protection of Privacy Act, and it sets out
some examples of the Commissioner's Orders and investigations under the Act.
It also includes discussion of prominent access to information and privacy
issues in British Columbia over the past year.
Background
The Office of the Information and Privacy Commissioner was created to promote,
uphold, and protect the information and privacy rights of individuals, as
described in the Freedom of Information and Protection of Privacy Act.
The Act was proclaimed on October 4, 1993. At the time, it applied to
government ministries, agencies, and Crown corporations. On November 2, 1994,
the Act took effect to include local public bodies, such as municipalities,
school boards, hospitals, municipal police departments, universities, and
colleges. On November 6, 1995, the Act was expanded to include all
self-governing professional bodies, such as the Law Society of British
Columbia, the College of Physicians and Surgeons, and the British Columbia
College of Teachers.
Currently, the Act covers over 2200 public bodies in British Columbia and 33
self-governing professional bodies.
The Commissioner
The Information and Privacy Commissioner was appointed by the government of
British Columbia to monitor the administration of the Freedom of Information
and Protection of Privacy Act. The Commissioner monitors how public bodies
comply with the Act, he issues binding orders (judicial decisions) requiring
public bodies to comply with the Act, and he comments on the implications for
access to information or protection of privacy of any of their proposed
legislative schemes or programs. The Commissioner also promotes the principles
of the Act through public education, research, and active involvement in the
information and privacy community.
The Commissioner has a six-year, non-renewable term. He is an Officer of the
Legislature and, like the other Officers of the Legislature, such as the
Ombudsman and the Auditor General, he is independent of government. He reports
to the Speaker of the House, who represents the entire Legislature. This
independence is essential to the Commissioner's ability to provide an impartial
review of government's compliance with the Act.
The Freedom of Information and Protection of Privacy Act
The Freedom of Information and Protection of Privacy Act provides to
individuals a general right of access to information contained in records held
by public bodies. The Act also establishes a general right to the protection
of personal privacy. It sets out strict standards about how public bodies
collect, use, and disclose personal information. Under the Act, an individual
also has the right to see his or her information and to request that it be
corrected if there are mistakes.
The Act also sets out limited exceptions to the general rights of access to
information and protection of privacy. Exceptions to the right of access
include limits on access to information gathered during law enforcement
proceedings, information protected by solicitor-client privilege, and
information that, if released, would harm the business interests or personal
privacy of a third party. Exceptions to the protection of personal privacy
include information that may be disclosed if it is in the public interest, if
there are compelling circumstances that affect anyone's health or safety, or if
the information is about a person's position, function, or remuneration as an
officer or employee of a public body.
The Commissioner seeks to ensure that exceptions to the right of access and
privacy are applied narrowly and that the Act is interpreted in the spirit of
openness. For example, if only part of a record contains information that
should not be released, then the Commissioner will require the severing of the
record so that other portions may still be disclosed to the applicant.
Public Bodies
The role of public bodies under the Freedom of Information and Protection of
Privacy Act is to apply the specific requirements of the Act to each
request for information that they receive. Public bodies must also protect the
privacy of the personal information that they maintain. They must comply with
the fair information practices set out in Part 3 of the Act.
Public bodies also have a duty to assist applicants under section 6 of the Act.
However, since they are also bound by the Act's exceptions to disclosure,
public bodies must weigh requests for information carefully. They must
exercise their discretion to strike the correct balance between the public's
general right of access to information and an individual's right to protection
of personal privacy.
The Office of the Information and Privacy Commissioner seeks to ensure that
information and privacy rights are interpreted consistently among public
bodies, and provides an avenue of review for those individuals who are not
satisfied with a public body's decision about access to records or their
protection of personal privacy.
Introduction
Under section 52 of the Freedom of Information and Protection of Privacy
Act, the Commissioner may be asked to "review any decision, act, or failure
to act" of a public body resulting from a request for information. Thus an
applicant for information may request that the Commissioner review a public
body's decision refusing them access to all or part of a record. The purpose
of section 52 is to ensure that an impartial review mechanism is in place to
resolve disputes.
Under section 4 of the Act, individuals have a general right of access to
information in any record in the custody or under the control of a public body.
This right is limited, however, by some exceptions. These exceptions are set
out in sections 12 to 22 of the Act. They include restrictions on the release
of certain types of information for reasons such as that it may harm law
enforcement investigations or the business interests of third parties, or that
the information is a Cabinet confidence or is protected under solicitor-client
privilege.
Individuals who are not applicants for records, may become involved as third
parties in a request for review because a public body has notified them that
their information is included in records requested by an applicant. These
third parties may also request a review by the Commissioner of a public body's
decision if they wish to oppose a decision to disclose records.
Requesting a Review
Under section 53 of the Act, a request for review of a decision made by a
public body must be delivered in writing to the Commissioner's Office within 30
days of the applicant's receipt of the decision. The request for review should
include a copy of the applicant's original written request for records to the
public body and the public body's written response explaining its decision to
refuse to release all or part of the records.
Requests for review are received by the Office's Intake Officers. The Intake
Officer reviews the request and often contacts the applicant for clarification
of the facts and circumstances of the request. If the request for review can
proceed, the Intake Officer assigns the request to a Portfolio Officer.
Once a case is formally opened by a Portfolio Officer, he or she has 90 days
within which to review the request and resolve the dispute. Portfolio Officers
have substantial delegated powers from the Commissioner to require a public
body to produce the records in dispute so that they may examine what is being
withheld or to be released. They also clarify the basis for the public body's
decision and attempt to resolve the dispute by mediation. A Portfolio Officer
will either assist the parties in reaching an agreement about the records by
talking or meeting with each one separately and proposing a resolution, or by
meeting with the parties jointly and assisting them to negotiate their own
agreement or resolution.
Of all the requests for review that come to the Information and Privacy
Commissioner's Office, over 92 percent are settled without going to a formal
inquiry. The remaining cases come before the Commissioner and result in an
Order.
* For further details on inquiries and Orders, please see the chapter entitled
Commissioner's
Orders.
Samples of Recent Mediated Requests
The following are samples of some recent mediated settlements achieved by
Portfolio Officers in the Commissioner's Office. They represent a wide range
of issues and public bodies and were chosen as samples mostly for their
innovative or pragmatic solutions.
A. Local Public Bodies
College - complaint investigation
Three students applied for records about an investigation into their complaints
about two instructors. The College released copies of the students' own notes
but withheld other personal information supplied in confidence by the two
instructors.
Through mediation, the College agreed to release further information about the
students that the instructors had supplied, but refused to release the personal
information of the instructors, such as evaluations. The students accepted
this resolution.
Hospital - dismissed employee
An applicant requested information related to a dismissed administrator that
included memoranda issued by the hospital board of trustees to the
administrator, memoranda issued by the administrator, and the hospital's
cheques register for a specified period of time. The hospital refused to
release the documents, stating that there was a reasonable likelihood that its
response would be perceived as biased, since it was currently involved in
litigation with the administrator. No sections of the Freedom of
Information and Protection of Privacy Act were cited as the basis for this
decision.
Through mediation, the board of trustees prepared a new response for the
applicant that corresponded to the requirements of the Act. The administrator
was given notice of the hospital's intent to release the information and the
administrator consented. Thus, the applicant received most of the records
requested and was satisfied with the outcome.
Municipality - letters of application
An applicant requested copies of all letters of application sent by all the
successful appointees to various municipal boards, committees, and commissions.
Through mediation, the applicant agreed to limit the request to a smaller
number of letters, namely those which were the subject of his concerns. Since
a formal inquiry would have required third party notice and the inclusion of
the authors of the letters as parties to the inquiry, all these individuals
were contacted as part of the mediation process to determine whether they were
willing to provide written consent to the disclosure of their letters.
All the parties consented and their letters were disclosed by the local public
body.
Municipality - report
A consultant wanted a copy of a report prepared for the municipality by another
consultant. The municipality refused access, since the proposed project had
not been considered by Council or implemented. Mediation led to the
realization that the report would likely never be put before Council. After
informing the consultant who submitted the report of its intent to release the
report to the requester, the municipality disclosed the entire report.
Municipality - legal costs
An applicant wanted to know how much a municipality had spent on lawyer's fees
for a particular sewer project. The records were not maintained in a manner
which made the information readily available. As a result of mediation, the
public body agreed to prepare a fee estimate for the time that it would take to
do a manual search of a large number of files and compile the information for
the applicant. After receiving the estimate, the applicant decided not to
proceed with the request.
Municipality - legal advice
An applicant requested a copy of a review relating to the legality of zoning
actions taken by the municipality. The municipality refused to release the
information on the grounds that it was subject to solicitor-client privilege.
During mediation the applicant revealed the concern that there was an apparent
discrepancy between a particular bylaw and the zoning, and that a legal review
of the materials would provide an answer. The municipality and applicant
agreed that one of the municipality's solicitors would answer the applicant's
specific question in writing.
Police Department (municipal) - interviews with applicant's child
An applicant requested access to a videotape of an interview between the police
and his young child who had been part of an investigation. The police
department denied the applicant access to the requested tape. The applicant
requested a review of this decision, since he was concerned about the conduct
of both the interview and the investigation. He later broadened his request to
include all videotapes of interviews with his family, any transcripts of these
interviews, reports, and any other paper records of the police investigation.
The police denied access to all of the records, and the applicant requested a
review of this decision as well.
Through mediation, the police department agreed to release severed copies of
transcripts of the interviews with the two parents, along with other paper
records. It also agreed to arrange for a viewing of the two videotapes. The
police continued to refuse access to any interview material to do with the
applicant's child. The applicant accepted this arrangement, since he had
decided to pursue other avenues.
Regional District - local public body confidences
An applicant requested access to all records relating to the purchase of a
parcel of land by the Ministry of Environment, Lands and Parks for the purposes
of creating a park. The District provided partial access to the records and
withheld others. The applicant requested a review of these decisions.
Through mediation, the District agreed to reconsider its position and released
some records immediately. It also consulted with other bodies regarding some
of the remaining records and subsequently released these records at a later
stage in the review. Further, the District referred some of the records to its
lawyer for an opinion on whether they should be withheld. The District
subsequently released the records and the applicant was satisfied.
B. Ministries, Crown Corporations, and Other Government Agencies
Ministry of Forests - environmental records
An applicant acting on behalf of an environmental research and lobby group had
requested environmental records contained in Cabinet documents. Through
mediation, the applicant accepted the opinion of the Portfolio Officer, which
agreed with the Ministry's position, that information contained in Cabinet
documents was not releasable, since Cabinet records are afforded vigorous
protection under the Act. The applicant reconsidered the application of the
Cabinet confidences section of the Act and agreed that pursuing the records all
the way to an inquiry before the Commissioner would likely be fruitless. He
subsequently withdrew his request.
However, the same applicant had requested other environmental records from the
Ministry pertaining to a proposed wilderness area. In this case, the Ministry
had cautiously severed a considerable amount of information before releasing
the records. During mediation, it became clear that the severances were based
more on the sensitivity of the issue, than on the specific harm considerations
set out in the Act. After discussions with this Office and further
consultation with its FOI Coordinator, the Ministry released the requested
information in its entirety. The applicant was pleased with the Ministry's
cooperation.
Ministry of Forests - fee waiver/public interest
An applicant requested from the Ministry all information related to the
decision-making process it employed with respect to a timber supply area in the
interior of British Columbia. The Ministry was prepared to release this
information but notified the applicant that it would require a fee of more than
$600.00 for these records. The applicant objected to paying that fee, arguing
that the information related to a significant decision with major local impacts
and thus should be released in the public interest, free of charge.
Through mediation, it was clarified that there is no definition of the public
interest under the fee waiver section of the Act, but rather that there is a
spectrum of interests. A key factor to consider is whether the applicant
represents a legitimate public interest which is shared by a number of
individuals or organizations in the community. As the applicant was joined or
supported by a wide variety of organizations and had pledged to make the
information he received available for review by any interested party, the
Ministry agreed that release of the information was in the public interest and
provided the records without charge.
Ministry of Social Services - adoption records
An applicant could not understand why the Ministry had severed information from
adoption records which she already knew, such as the names of birth parents.
Once the Ministry was made more aware of the specifics of the situation, it
disclosed additional information to the applicant. It also disclosed further
third-party personal information, since the applicant provided the birth
father's written consent for the disclosure of his personal information and
proof of her adoptive mother's death for the disclosure of the mother's
personal information.
Ministry of Transportation and Highways - lists of roads
Two separate applicants requested lists of roads which cross Native reserves in
various areas throughout the province, as well as the status (the ownership or
control) of the roads. These lists had been prepared by the Ministry for its
own strategic planning and policy development purposes.
Initially, the Ministry was concerned that public release of the lists might be
an invitation to confrontation. However, through mediation, the Ministry
decided to release the lists of roads and their status to the applicants, on
the understanding that the list was "based upon informed and educated
speculation by ministry staff" and was "not to be considered final nor
conclusive." The applicants were satisfied with the release under these
conditions.
Office of the Chief Coroner - federal and foreign records held by public
bodies
An applicant requested from the Chief Coroner a copy of a report prepared by a
department of the Government of Canada. The Royal Canadian Mounted Police
(RCMP) had provided the report to the Chief Coroner "in confidence," within the
meaning of the intergovernmental relations exception in Act. Through
mediation, the applicant accepted the Chief Coroner's decision to withhold the
report under the Act, but was told that he/she could request the report from
other sources by other means, such as from the RCMP directly or from the
federal government through the federal Access to Information Act.
The mediation clarified for public bodies that, where they have custody of
federal, other provincial, or foreign records, they must process requests for
those records under the British Columbia Act. However, an applicant may also
request the same records directly from the originating federal, provincial, or
foreign government office, under that body's own governing access and privacy
legislation.
Workers Compensation Board - technical data
An applicant requested the printouts of data from a gas monitoring van in which
she was working on the day an explosion occurred. The WCB denied the request
on the grounds that it was technical information supplied to it in confidence
by the employer.
During mediation, the applicant revealed that she needed the information to
prove that she was exposed to abnormally high levels of poisonous gas on the
day of the explosion. The WCB subsequently decided to release the information
on the grounds that it was necessary for a fair determination of the
applicant's rights.
C. More Than One Public Body
Ministry of Health/Municipality - information about a private hospital
A health care union applied to the Ministry of Health for information about a
private hospital. Since a municipal health department had some of the records,
the Ministry transferred part of the request to that department. The record
amounted to over 500 pages of information and consisted of financial reporting
information, quality assurance reports, records of inspections, and follow-up
reports. The Ministry withheld its own portion of the records stating that
release would be harmful to the business interests of the hospital.
The Municipality, however, decided that it would release portions of the
records to the health care union under the Act, despite the objections it
received from the hospital. The hospital requested a review of this decision
by the Commissioner's Office.
Through mediation, the Municipality was encouraged to provide a comprehensive
index of the records to the health care union in order to assist it in
narrowing its request, thus preventing the unnecessary release of irrelevant
hospital documents. The Portfolio Officer also met with representatives of the
hospital, Ministry, and the Municipality to discuss the hospital's concerns and
the application of the Act. As a result of the narrowing of the request and
with the consent of the hospital, the Municipality subsequently released a
large quantity of the records to the health care union.
Introduction
Under sections 42(2) and
52 of the Freedom of Information and Protection of
Privacy Act, the Commissioner may receive complaints from individuals about
the access to information or protection of privacy practices of public bodies
covered under the Act. If an individual feels that his or her privacy has not
been adequately protected by a public body, he or she may complain to the
Commissioner's Office, which will investigate the matter. If the issue is a
complaint about access to records, it usually involves access to specific
records and thus is handled by the request for review process. However, an
individual may make a general complaint about a lack of access to a whole
category or system of records. This type of issue is handled by the complaint
and investigation process.
Part 3 of the Act sets out specific protections for the privacy of personal
information. Sections 26 to 36 specify that a public body may only collect,
use, and disclose personal information in limited ways for particular purposes.
These rules are commonly referred to as fair information practices. The Act
also states that a public body must make reasonable security arrangements to
protect the personal information it maintains.
If the Office receives several similar information or privacy complaints from a
number of individuals, or if a complaint is of a systemic nature, affecting
many departments of, or more than one, public body, then a complaint may become
the subject of a larger investigation. Such an investigation may result in a
formal investigation report.
Making a Complaint
Like requests for review, complaints made to the Commissioner's Office should
be in writing and set out the facts of the complaint, including the public body
or bodies that are the subject of the complaint and any measures or steps that
have been taken by any of the parties so far. The Office's Intake Officers
will review the complaint, clarify the facts, and assign it to a Portfolio
Officer.
Portfolio Officers investigating complaints have substantial delegated powers
from the Commissioner to look at any records relating to the complaint and/or
to ask questions clarifying the issues and circumstances of the complaint. In
certain instances, a Portfolio Officer may be able to resolve a complaint after
his or her investigation. If not, the matter will be concluded by the
Commissioner, who will render a decision by letter, by Order,
or by launching an extended investigation resulting in an investigation
report.
Samples of Recent Complaints
The following sample complaints have been chosen as examples since they are
good illustrations of the complaint process and because they represent the more
common types of complaint that the Office receives.
A. Local Public Bodies
Hospital - third party notice/audit trail
An applicant made a request to a hospital for access to the applicant's own
personal medical records. Upon receipt of the request, in accordance with
standard policy, the hospital notified all of the main medical practitioners
mentioned in the file that a request for access had been made. The hospital
also invited the practitioners to review the file and provide feedback if they
had concerns about releasing the information. The applicant felt that this
notification practice was unwarranted and was a violation of personal privacy.
The hospital felt that the notification was necessary to address any safety or
health issues that might be associated with release of the records.
During the investigation, the Commissioner's Office determined that the
consultation process currently employed by the hospital was broader than it
needed to be and did not respect the applicant's right to privacy. The
Office's recommendation was that the hospital restructure its consultation
process to meet the fair information practices set out in the Freedom of
Information and Protection of Privacy Act.
The applicant also expressed concern that the hospital did not have a permanent
record of who had accessed a particular medical file. Except for specialized
laboratory and diagnostic services, medical files are kept in a paper format.
When an individual requests a file, the identity of the requester is verified
and a record is kept of the file's location. When the file is returned, this
record is destroyed.
During mediation, the Commissioner's Office recommended that, in order to
enhance the security of the manual file system, the hospital initiate a method
of making a permanent record of the dates on which a patient file was accessed
and the name of the individual who had obtained access.
B. Ministries, Crown Corporations, and other Government Agencies
Ministry of Attorney General - inappropriate access to CPIC
A complainant alleged that the Canadian Police Information Centre (CPIC)
computer system was being inappropriately accessed within the Ministry of
Attorney General. The complainant suggested that a Ministry employee was
indiscreetly describing his or her ability to access the system, which is a
repository of sensitive law enforcement-
related personal information.
Investigation of this privacy complaint by the Commissioner's Office focused on
ensuring that the data privacy and security principles and practices of the
Freedom of Information and Protection of Privacy Act were being upheld,
rather than identifying the Ministry employee whose actions prompted the
complaint.
The Commissioner sent a reporting letter to the Deputy Minister to convey his
concerns about access to the CPIC system, with a request that all Ministry
employees with access to CPIC be provided with a copy of the letter. The
letter was also sent to the Chief Constables of the twelve municipal police
departments in British Columbia.
Ministry of Social Services - complainant confidentiality
A landlord submitted a complaint that information which he had provided in
confidence about a tenant to the Ministry was inappropriately disclosed by its
staff to the tenant.
The Commissioner's Office discussed the complaint with the Ministry, which
decided to conduct its own investigation of the matter as a preliminary step.
The Ministry concluded that staff had followed correct procedures in handling
the information and that no promise of confidentiality had been made. The
landlord was not satisfied with the Ministry's conclusions and requested that
the Commissioner's Office investigate further.
The Office addressed two issues in the investigation: whether the information
the landlord gave to the Ministry was protected from disclosure under the Act,
and whether the Ministry has appropriate standards, policies, and procedures in
place to maintain the confidentiality of complaints. The Office found that the
information that the landlord gave to the Ministry, and which subsequently was
disclosed to the tenant, was information concerning their business relationship
and not the personal information of the landlord which would be protected under
the Act. The fact that the landlord had made a complaint about the tenant to
the Ministry was also not considered to be personal information under the
Act.
However, through discussions with Ministry staff, it became evident that the
Ministry did not have written policies or procedures to govern how staff should
handle information offered to the Ministry "in confidence." The Office
concluded that the Ministry should develop confidentiality guidelines for the
future, since the Commissioner has ruled on numerous occasions in past
orders that public bodies should have written policies in place addressing the degree
of confidentiality that they can legitimately give to complainants for varying
levels of problems.
The landlord was advised of these conclusions and of the Office's
recommendation to the Ministry that it review its policies and procedures with
a view to ensuring the development of appropriate confidentiality standards in
compliance with the Commissioner's Orders and the spirit of the Freedom of
Information and Protection of Privacy Act. The Office also undertook to
discuss the process of the Ministry in this regard with the Ministry in three
months time.
C. More Than One Public Body
Ministries of Attorney General and Social Services - exchange of personal
information between ministries during litigation
A complainant alleged that the Ministry of Social Services had inappropriately
disclosed his personal information to the Ministry of Attorney General, and
that the Ministry of Attorney General had inappropriately collected his
personal information from the Ministry of Social Services. The complainant had
commenced legal action against the Ministry of Social Services, and the
Ministry of Attorney General subsequently became involved as the legal advisor
to government.
The Commissioner's Office investigated the complaint and found that the
collection and disclosure of the complainant's personal information was done
correctly under the Freedom of Information and Protection of Privacy
Act, since the Ministry of Attorney General is the legal advisor to all
ministries, and thus is entitled to receive personal information and files from
other ministries in order to respond to a legal action. Section-33 of the Act
permits public bodies to disclose personal information to the Ministry of
Attorney General for use in litigation involving the government.
The Commissioner also confirmed that public bodies do not need to exchange
formal requests for records in order to collect or disclose personal
information where such a transfer is authorized under sections 33-36 of the
Act. Further, he found that the Ministry of Attorney General was not required
to notify the complainant when it collected his personal information from the
Ministry of Social Services, since if public bodies were required to issue
notices every time personal information moved within the confines of the Act,
public servants would spend all their working hours sending such notices.
Three Public Bodies - improper collection, use, and disclosure of an
employee's personal information
A former government employee submitted a complaint concerning the inappropriate
collection, use, and disclosure of his personal information by three public
bodies. He claimed that the public bodies had violated the privacy provisions
of the Freedom of Information and Protection of Privacy Act during an
investigation into allegations of improprieties against him when he was still
employed by the government.
The Commissioner's Office conducted numerous interviews with officials of each
of the public bodies regarding their actions, their authority for the
investigation, and their reasoning for the use and disclosure of the former
employee's personal information during the investigation. The Office concluded
that the public bodies had not contravened the privacy protection provisions of
the Act, since they had the appropriate authority to conduct the investigation,
gather information about the employee's actions, and to use it in making
decisions about the applicant's suitability for continued employment.
After considering these conclusions, the complainant decided that there were
other means by which he could pursue his goals that were more appropriate, and
he agreed to close the file.
Introduction
The Office of the Information and Privacy Commissioner receives numerous
inquiries each day on a wide variety of information and privacy issues, most of
which are resolved or addressed over the telephone. Informational inquiries or
non-jurisdictional issues that are dealt with by telephone, are not logged or
tracked by the Office.
Where an inquiry cannot be resolved over the telephone, the caller is invited
to submit his or her complaint in writing. Written complaints or inquiries are
entered into the Office's computerized tracking system by the Office's Intake
Officers.
Between April 1, 1995 and March 31, 1996, the Office of the Information and
Privacy Commissioner logged 1436 written requests for review, complaints, or
inquiries. They have been categorized as follows:
CASE TYPE NUMBER
Request for Review 887
Complaints 114
Public Bodies' Requests for Time Extensions 107
Investigations 8
Freedom of Information Requests 18
Non-Jurisdictional Complaints and Inquiries 213
Other Inquiries 89
Total 1436
1. Requests for Review
An applicant who makes a request for records or a request for correction of
personal information may request a review of any decision, act, or failure to
act which relates to that request. Third parties who are notified during the
processing of a request may also request a review of any decision by a public
body to give access.
2. Complaints
A complaint maybe broader in scope than a request for review and does not
necessarily relate to a request for records. Complaints most often concern the
collection, use, retention, and disclosure of personal information or the
failure of a public body to perform a particular duty imposed by the Act.
3. Public Bodies' Requests for Time Extensions
The Act provides 30 days or, under limited circumstances, 60 days to respond to
a request. Where a public body determines that more than 60 days will be
needed to respond to a request, it may request the Commissioner's permission to
extend the response time.
4. Investigations
While investigations may be the result of a complaint, they can also be
undertaken in cases where there is a perceived concern by the Commissioner, the
public, or a public body about privacy or access to information issues.
Investigations are different from complaints in that they usually examine
systemic, rather than specific, issues, and may result in an investigation
report.
5. Freedom of Information Requests
The Office of the Information and Privacy Commissioner, as a public body, is
also responsible for responding to requests for records within its own custody
or control.
6. Non-Jurisdictional Complaints and Inquiries
Non-jurisdictional complaints and inquiries include complaints against private
sector organizations or professionals, such as doctors, dentists, lawyers,
insurance companies, credit bureaus, banks, and federal government agencies.
They also include complaints against public bodies over which the Office does
have jurisdiction, but where the concern is not a freedom of information or
protection of privacy issue.
Comparative Statistics
Since proclamation of the Act, the cases handled by this Office have shown a
steady increase. Part of the increase is due to enhanced awareness and use of
the Act by the public, but it is also due to the gradual implementation of the
three phases, or "tiers," of the Act. Whereas the Act only covered ministries,
Crown corporations, and government agencies from October 1993 to October 1994,
it took effect to include local public bodies in November 1994 and
self-governing professional bodies in November 1995.
The following table and graphs illustrate the growth by fiscal year in requests
for review, complaints, and requests for a time extension handled by the
Office.
93-94 94-95 95-96
82 79 114 COMPLAINTS
REQUESTS
150 544 887 FOR REVIEW
REQUESTS
13 65 107 FOR TIME
EXTENSION
Public Body Statistics
Some public bodies are the subject of requests for review or complaints at the
Commissioner's Office more frequently than others. Often this is because they
possess or handle more personal information than other public bodies, although
sometimes it may reflect disputes about certain types of files, issues, or
policies of the particular public body.
The following two tables show the numbers and percentages of requests for
review and complaints that were handled by the Commissioner's Office, set out
according to public body.
Requests for Review
Received between April 1, 1995 and March 31, 1996.
PUBLIC BODY REQUESTS FOR PERCENTAGE
REVIEW
Social Services 122 13.8%
Insurance Corporation of BC 81 9.1%
Attorney General 78 8.8%
Health 49 5.5%
Transportation and Highways 43 4.8%
Environment Land and Parks 37 4.2%
Vancouver Police Department 33 3.7%
Workers Compensation Board 33 3.7%
Forests 25 2.8%
Finance and Corporate Relations 21 2.4%
City of Vancouver 18 2.0%
University of British Columbia 15 1.7%
School District 31 (Merritt) 13 1.5%
Victoria Police Department 12 1.4%
Employment and Investment 12 1.4%
Greater Victoria Hospital Society 12 1.4%
Office of the Premier 11 1.2%
BC Hydro and Power Authority 11 1.2%
Capital Regional District 10 1.1%
*All Other Public Bodies 251 28.3%
TOTAL 887 100.0%
*There are over 2200 public bodies covered under the Act. There have been no
requests for review filed against the majority of these public bodies. The
figure of 251 for "All Other Public Bodies" represents, for the most part, one
or two requests for review which have been filed against each of 86 public
bodies other than the ones listed below. None of these 86 public bodies
received more than 9 requests for review each.
Complaints
Received Between April 1, 1995 and March 31, 1996
PUBLIC BODY COMPLAINTS PERCENTAGE
Social Services 20 17.5%
Workers Compensation Board 15 13.2%
Insurance Corporation of BC 12 10.5%
Attorney General 10 8.8%
Health 4 3.5%
Government Services 4 3.5%
Transportation and Highways 4 3.5%
*All Other Public Bodies 45 39.5%
TOTAL 114 100.0%
*There are over 2200 public bodies covered under the Act. There have been no
complaints filed against the majority of these public bodies. The figure of 45
for "All Other Public Bodies" represents, for the most part, individual
complaints made against approximately 45 public bodies other than the ones
specifically listed above.
Applicant Statistics
One of the most frequently asked questions of our staff is: "Who is filing
requests for review and complaints to the Commissioner's Office?" This is a
difficult statistic to track accurately, since the Act does not require
applicants to identify themselves as belonging to
any particular group. For this reason, the category entitled "Individuals" may
be artificially high, since it captures all those who did not note nor express
an affiliation with any particular group or interest, even though they may in
fact have been making a request or complaint on behalf of a group. Where
applicants have identified themselves as belonging to a particular group, that
information has been indicated below.
TYPE OF APPLICANT NUMBER PERCENTAGE
Individuals 767 76.6%
Media 59 5.9%
MLAs 24 2.4%
Commercial Applicants (COMM) 22 2.2%
First Nations (FN) 21 2.1%
*Special Interest Groups (SIG) 15 1.5%
**Other Organizations 93 9.3%
TOTAL 1001 100.0%
*e.g.: environmental groups, wildlife groups, human rights groups
**e.g.: unions, associations, societies, other non-commercial organizations
Settlement of Cases
Between April 1, 1995 and March 31, 1996, the Commissioner's Office closed 841
requests for review and 98 complaints. Of the 841 requests for review closed
during this period, only 60 required settlement by an Order. Thus, less than 8
percent of requests for review resulted in an inquiry before the Commissioner.
This low rate of formal inquiries and orders is primarily due to the emphasis
placed in the Office on mediation as a practical means of resolving disputes.
No complaints resulted in inquiries before the Commissioner. However, several
complaints about one particular public body became the subject of a lengthy
investigation which concluded with an investigation report. The remaining
complaints and investigations were closed in a less formal manner.
Requests for Review
Closed Between April 1, 1995 and March 31, 1996
TYPE OF SETTLEMENT NUMBER PERCENTAGE
Mediated 700 83.2%
Withdrawn 67 8.0%
Abandoned 14 1.7%
Order 60 7.1%
TOTAL 841 100.0%
Complaints & Investigations
Closed Between April 1, 1995 and March 31, 1996
TYPE OF SETTLEMENT NUMBER PERCENTAGE
Complaints and Investigations Completed 89 90.8%
Complaints Withdrawn 4 4.1%
Complaints Abandoned 4 4.1%
Investigation Report 1 1.0%
Order 0 0%
TOTAL 98 100.0%
Introduction
Under section 56 of the Freedom of Information and Protection of Privacy
Act, if a request for review brought to the Commissioner's Office cannot be
settled by mediation, the Commissioner must conduct an inquiry. Under
section 58(1) and (2) of the Act, the Commissioner must dispose of the issues of the
inquiry by making an Order. If the matter brought before the Commissioner is a
complaint, or concerns a time extension, correction, or fee waiver, then the
Commissioner may make an Order under section 58(3) of the Act or
section 42(1)(b).
The Inquiry Process
Prior to issuing an Order, the Commissioner conducts an inquiry. Section 56 of
the Act sets out the Commissioner's duties and powers in this regard. The
Commissioner decides whether the inquiry will be oral or written, whether
parties may have access to each other's submissions, and all questions of fact
and law during the course of the inquiry. Section 56(6) specifies that the
Commissioner has 90 days within which to conduct an inquiry dealing with a
request for review. In practice, the first portion of the 90 days is allocated
to Portfolio Officers who try to resolve the various disputes over records
through mediation.
If it appears that a Portfolio Officer will not be able to resolve a matter
within the 90-day time frame, then it is referred to the Commissioner for a
formal inquiry. The Commissioner neither hears details of, nor learns about,
the case until it is before him in a formal inquiry. This ensures that the
Commissioner remains an impartial adjudicator of the facts and issues once the
request for review comes before him.
Inquiries may be oral or written. During the course of an inquiry, the
Commissioner receives submissions on the facts and issues from the applicant
and the public body, and from any person or organization who may have a direct
interest in the issues or whom he decides is appropriate, such as third parties
and intervenors. Intervenors are invited to make submissions if the
Commissioner decides that their comments or perspective may illuminate one or
more of the particular issues to be resolved. The Commissioner reviews all of
the submissions and the records in dispute in detail.
Making an Order
Under section 58(2) of the Act, the Commissioner has the power to make
Orders resolving requests for review by requiring a public body to do one or more of
three things: (i) to give an applicant access to all or part of a record, (ii)
to refuse an applicant access to all or part of a record, or (iii) to
reconsider its decision to refuse access to the applicant.
Under sections 58(3) and 42(1)(b) of the Act, the Commissioner may issue an
Order resolving a complaint or other matter in which he: (i) confirms or
denies a time extension, (ii) confirms, excuses, or reduces a fee, (iii)
confirms a decision not to correct personal information or specifies how it is
to be corrected, or (iv) requires a public body to stop collecting, using, or
disclosing personal information in a manner that is in contravention of the
Act.
Under section 58(4), the Commissioner may specify any terms or conditions in
the
Orders.
Between April 1, 1995 and March 31, 1996, the Commissioner issued 60
Orders. These were Orders No. 36 to 95.
Compliance
The Commissioner's Orders are binding. Under section 59 of the Act, the head
of a public body must comply with an Order from the Commissioner within 30
days, unless the public body, applicant, or third party applies for judicial
review of the Order. If an application for judicial review is made within the
30 days, then the Commissioner's Order is stayed until such time as the court
orders otherwise.
Judicial Review
Although the Commissioner's Orders are binding, applicants, public bodies, or
third parties have the right to apply to the British Columbia Supreme Court for
judicial review of an Order. Public bodies must apply for judicial review
within 30 days from the date the Order is issued. Third parties must also make
their applications within this deadline, since a public body must decide
whether to comply with an order to release records by the end of the 30-day
period. However, an applicant may apply for judicial review of an Order at any
time.
Between April 1, 1995 to March 31, 1996, five of the Commissioner's
Orders received applications to the B.C. Supreme Court for judicial review. The
Orders that have been challenged are Orders No. 36, 39, 61, 73, and 74. The
court has not yet delivered any decisions on these
Orders.
Between April 1, 1995 to March 31, 1996, the B.C. Supreme Court delivered three
decisions on Commissioner's Orders that had been challenged by judicial review.
These decisions were for Orders No. 22, 29, and 56. Orders 22 and 56 were
upheld, and Order 29 was overturned.
(Order No. 8 was reviewed by the court and a decision handed down in the
previous fiscal year. The Order was sent back to the Commissioner for
reconsideration. The Commissioner subsequently re-issued Order No. 8 on July
7, 1995, as Order No. 48.)
Availability of the
Orders
The Commissioner's Orders are available through:
· Crown Publications at: (604) 386-4636
· Quicklaw (for registered users)
· The Internet, via the World Wide Web, at: http://www.cafe.net/gvc/foi/
· Major public libraries in British Columbia.
* A Chronological Table of Orders, a Table of Concordance and a Table of Public
Bodies that were the Subject of Orders are attached to the back of this report
as Appendices D, E, and F.
(Copies of judicial review decisions are available through the court registry
of the British Columbia Supreme Court: Vancouver (604) 660-2845, Victoria (604)
356-1478).
Sample Summaries of Recent
Orders
The sample of Orders chosen for summary in this report represents some of the
more interesting or contentious issues raised by recent requests for review.
They are grouped below according to general subject matter.
A. Records Relating to Audits, Investigations, and Reports
Order No. 50-1995 - an investigation into conflict of interest allegations
The applicant, a researcher, had requested access to all investigative material
compiled during an investigation into conflict of interest allegations against
former New Democratic Party (NDP) MLA Gordon Hanson. The Ministry withheld
interview answers under section 15 of the Act on the grounds that disclosing
them would "harm the effectiveness of investigative techniques and procedures
currently used in law enforcement." The Ministry also stated that sensitive
information which individuals provide to auditors should be protected from
disclosure, since receiving candid information from interviewees is the only
way that auditors can do their jobs effectively.
The Commissioner ordered the Ministry of Finance and Corporate Relations to
release the records, subject to the application of section 22 of the Act, which
protects against disclosure of information harmful to personal privacy. He
stated that: "a process of relying on confidential interviews is not an
investigative technique or procedure as defined in section 15(1)(c) of the
Act." He also stated that: "I do not agree with the view that disclosure of
the records in dispute in this case will end candour in internal audits of the
type conducted in the Hanson matter. Those interviewed are under a legal
obligation
to respond."
In his Order, the Commissioner hailed the changes that freedom of information
legislation implies for government in British Columbia: "The notion of
accountability embodied in the Act has wide application for those paid from the
public purse. That this requires incremental changes in ways of doing business
should be celebrated as an important form of progress in creating a more open
society in British Columbia rather than denigrated as some kind of egregious
error...."
Order No. 71-1995 - records concerning allegations of sexual harassment
The applicant, a reporter, had requested records concerning allegations of
sexual harassment against a former NDP Cabinet Minister stating it was a matter
of public interest. The Office of the Premier's released two of the five
records identified, but withheld the other three, stating that disclosure would
be harmful to law enforcement proceedings under section 15 of the Act, and
would be an unreasonable invasion of various people's personal privacy under
section 22.
The Commissioner upheld the Office of the Premier's decision to refuse access
to the records, stating that the records in dispute fell within the definition
of law enforcement information under the Freedom of Information and
Protection of Privacy Act, and that disclosure might jeopardize the former
Cabinet Minister's right to a fair and impartial hearing. The Commissioner
also agreed that release of the information would be an unreasonable invasion
of the former Cabinet Minister's and complainants' personal privacy.
He stated: "The contents of the records are of a very sensitive nature and
character for all of those involved. While comparable information may have to
be provided in a court room or during a human rights hearing, it would not
serve the public interest to order disclosure of these records under the
Freedom of Information and Protection of Privacy Act."
Order No. 72-1995 - a report concerning document security within the Office
of the Premier
A reporter for the Province had requested access to a report from the Office of
the Premier entitled, "A Review of the Executive Council Documentation
Process," commissioned by Cabinet and prepared by retired RCMP officer James
McIlvenna after reports of security breaches of Cabinet confidences in late
1994 and early 1995. The Premier's Office responded by releasing only a
severed version of the report, stating that more detailed disclosure would harm
the security of a property or system and reveal policy advice or
recommendations.
Commissioner Flaherty concluded that the Office of the Premier had
inappropriately severed portions of the report and ordered it to disclose much
more of the report to the Province than it previously had. He also ordered the
public body to reconsider its decision on section 13. He stated that, although
some information in the report might be of some embarrassment to government,
"many portions of it can indeed be disclosed to the applicant, since they
contain factual or descriptive information that would neither harm security
matters nor reveal confidential policy advice or recommendations."
Order No. 56-1995 - environmental test results
The Cowichan Estuary Preservation Society had requested information from the
Ministry of Environment, Lands and Parks concerning environmental test results
from the Swallowfield landfill site utilized by Fletcher Challenge Canada
Limited. The Ministry withheld the information under section 21 of the Act,
stating that disclosure of the information would reveal scientific or technical
information of the company that it had supplied to the Ministry in confidence.
The Ministry also stated that disclosure would result in the same information
no longer being supplied to the Ministry, which they argued was contrary to the
public interest.
The Commissioner found that the information was not protected under section 21,
stating that disclosure in this case could not reasonably be expected to result
in similar information no longer being supplied to the Ministry. He
ordered the Ministry to disclose the information.
Order No. 57-1995 - environmental test results
The Dunbar Residents Association had requested information from the Ministry of
Environment, Lands and Parks concerning the environmental test results from a
former service station site in Vancouver, owned by Chevron Canada Limited. The
Ministry decided it could release the information, but Chevron Canada objected
to its disclosure
under section 21 of the Act, stating that it could reasonably be expected to
harm its negotiating position with respect to sale of the site, and harm its
competitive position in the retail gasoline marketplace. It also argued that
disclosure could result in similar information no longer being supplied to the
Ministry.
The Commissioner found that the information in dispute did not meet the
criteria set out in section 21 regarding disclosures harmful to the business
interests of a third party. He stated that the public, especially in the form
of a community group, has a right under the Act to learn what is going on at an
environmental test site: "It is perfectly true, as the third party argues,
that this disclosure will increase the prospects for a `simplistic description'
of `the potential for contaminant migration' and that `misunderstandings by
members of the general public are likely.' But it is hard to argue that
experts have done better than laypersons in the environmental area without
public input of the type that the Act now facilitates."
B.-Records Relating to Law Enforcement
Order No. 58-1995 - records relating to a murder investigation
The applicant, an inmate currently serving a life sentence for murder, had
requested access to information about his 1978 murder investigation so that he
could determine whether there were contradictions between what witnesses had
said in court and what was contained in the investigation file. The police
withheld the records under sections 15, 19, and 22 of the Act on the grounds
that disclosing them could harm law enforcement proceedings and put the safety
of witnesses at risk.
The Commissioner upheld the decision of the Victoria Police, stating that while
he sympathized with the applicant's interest in the records, it had to be
weighed against the exceptions in the Act, which can prevent disclosure of
records in the interest of protecting third parties and law enforcement
proceedings. The Commissioner stated: "I prefer to act prudently when it comes
to disclosure of personal information about individuals who can reasonably be
expected to be at risk of harm, now or in the future, from the disclosure."
The Commissioner further stated that the issue of discrepancies between court
and investigative files would be a matter for the federal government to
consider in an application for a new trial under section 690 of the Criminal
Code.
C.-Fees and Requests for Fee Waivers
Order No. 51-95 - access to digital maps
The Western Canada Wilderness Committee (WCWC) had requested digital maps from
the Surveys and Resource Mapping Branch of the Ministry of Environment, Lands
and Parks, in spite of the availability of the maps to the public for purchase,
contending that the fees were prohibitive. The Ministry responded by stating
that section 2(2) of the Act specifies that the Act does not replace other
procedures for access to information, and therefore that the Act does not apply
to records that are already "available for purchase by the public." The
Ministry also cited section 20(1)(a), which allows the head of a public body to
refuse to disclose records that are available for purchase by the public.
The Ministry argued, in conclusion, that the Commissioner did not have
jurisdiction to review the applicant's request for records in this case.
The Commissioner disagreed with the Ministry's interpretation of the Act and
found that he did have jurisdiction to review the applicant's request. He
stated that: "I am of the opinion that I have jurisdiction over the question
of when a record is `available' for purchase by the public and what
availability means .... In my view, the Commissioner must have jurisdiction to
determine if this exception is being properly applied."
The Commissioner further stated that: "The purpose of section 2(2) is simply
to make sure that public bodies do not start insisting that applicants for
information customarily make formal access requests for information that has
traditionally been available by other means."
Order No. 91-1996 - fees for digital maps
This Order was "part 2" of a request for review of a decision by the Ministry
of Environment, Lands, and Parks' decision to refuse the Western Canada
Wilderness Committee (WCWC) access to digital maps under the Freedom of
Information and Protection of Privacy Act, dealt with in Order No. 51 (see
above). Since the Commissioner ruled in Order 51 that he did have jurisdiction
to consider a request for review on the matter, Order 91 dealt with the more
specific issue of fees.
The WCWC had requested the digital maps through the Freedom of Information
and Protection of Privacy Act, since it considered the fee of approximately
$30,000 for the maps to be an effective barrier to public access. The
Ministry refused to release the digital map data under section 17 of the Act,
stating that it would be harmful to the Ministry's financial or economic
interests and that it was already available to the public for purchase.
The Commissioner upheld the Ministry's decision under a strict interpretation
of the Act, but concluded that he could also consider the broader implications
of the Ministry's pricing policies for digital map data in the context of his
general responsibility for monitoring
the administration of the Act, in order to ensure that its purposes and
principles are achieved. He noted that it would cost any individual or group
outside of government $4.2 million (plus taxes) to purchase the entire series
of 7000 digital maps. He also recognized public interest arguments presented
by WCWC and various intervenors, as well as
the government's need to recover its costs in the development of the digital
maps.
The Commissioner concluded that there is a need for a resolution which
incorporates both public interest and government cost recovery goals. Although
not prepared to order the Ministry to reconsider its decision, the Commissioner
invited the Ministry to reconsider the matter in light of his order, suggesting
a two-tiered pricing system which would recognize the potential public interest
contributions of non-profit groups. He also urged the Ministry to involve the
Chief Information Officer in any further discussions of the policy.
Order No. 55-1995 - discretion to charge fees
The New Democrat Government Caucus (NDP) had requested information from the
City of Vancouver concerning contracts awarded to Moodie Consultants. The City
told the NDP that it would release the information, but that it would cost
$1,022.75 in photocopying fees. The NDP then asked the City of Vancouver to
exercise its discretion to waive all fees in the public interest, but the City
refused.
The NDP appealed the decision to the Information and Privacy Commissioner,
arguing that the City had inappropriately limited the meaning of "public
interest" when considering the NDP's request for a fee waiver. The City argued
that, in order to discourage "fishing expeditions" at little or no cost, fees
should be imposed on political parties seeking information from government
files. It stated further that the Liberal Caucus had been charged the same
amount for the same information, and that the fees simply covered photocopying
costs.
The Commissioner upheld the City's decision, stating that: "Given the costs
that [the public body] inevitably incurred in terms of overhead and staff time
on this request, it is my view that the actual costs ultimately charged to the
applicant are quite modest."
The Commissioner further found that the City of Vancouver had the authority
under the Freedom of Information and Protection of Privacy Act to
determine what is in the "public interest" with respect to the waiving of fees,
"subject to my oversight of any alleged failure to act in a reasoned manner on
the issue."
Order No. 90-1996 - fee waiver
A consultant for the Penticton and Similkameen Indian Bands requested a fee
waiver for records from the Ministry of Employment and Investment concerning
the relationship between the government and various corporations involved with
the Apex Ski Resort. The consultant argued that the information was a matter
of the public interest, but the Ministry disagreed.
The Commissioner found that the Ministry of Employment and Investment had
properly exercised its discretion and acted in good faith when it refused the
fee waiver request, and concluded that the Ministry had complied with the Act
in setting the fee estimate.
The Commissioner noted that although the Act does not provide specific guidance
on the burden of proof with respect to a request for a waiver of fees, the
burden of proof in this inquiry was on the consultant, since a fee waiver
effectively amounts to a discretionary benefit. He also noted that the
requested fee of $1,450 was relatively modest compared to the Ministry's
estimated total costs of approximately $19,000, and that, although the
applicant is a commercial entity, the Ministry had chosen to charge
non-commercial rates.
The Commissioner ultimately concluded that the Ministry was entitled in this
matter to determine what was "in the public interest" for purposes of the fee
waiver.
D.-Deleted Records
Order No. 73-1995 - deleted e-mail
International Helix Biotechnologies Inc. had requested access to deleted e-mail
messages between the Ministry of Health and the Ministry of Finance and
Corporate Relations, potentially contained on backup tapes kept by the British
Columbia Systems Corporation (BCSC). Both Ministries refused, stating that the
general right of access to records in the custody or under the control of a
public body does not extend to deleted e-mail on backup tapes kept by BCSC.
The Commissioner upheld the decisions, stating that, although undeleted e-mail
is indeed a record under the Freedom of Information and Protection of
Privacy Act, in principle, deleted e-mail is not such a record and cannot
be reconstructed for this purpose because of the costs and burdens involved.
He stated: "Under normal circumstances, my view is that such backup records as
those held by BCSC on behalf of the Ministries cannot be treated as records
under the Act. These backup tapes were created for the purpose of disaster
recovery only; they should not be accessible under the Act in the same way as
filing cabinets or computer tape records held in off-site storage." The
Commissioner also commented on the issue of ensuring accountability of public
bodies for proper record retention and destruction under the Act.
E.-Records Relating to Telephone Calls
Order No. 63-1995 - telephone logs
The New Democratic Party Caucus (NDP) had requested portions of fax, telephone,
and cellular records of the Mayor's office from the City of Vancouver for three
specific time periods between January 1993 and October 1994. The City of
Vancouver refused to release the records under sections 15, 17, and 22 of the
Act, stating that disclosure would harm law enforcement proceedings and the
financial or economic interests of the office, and would be an unreasonable
invasion of the personal privacy of persons involved in the telephone
transmissions. The City also argued that disclosure would be harmful to
intergovernmental relations and to individual or public safety.
The Commissioner upheld the City's decision to withhold the records, stating
that disclosure of the telephone logs would be an unreasonable invasion of the
personal privacy of its employees and of the persons they had called. However,
the Commissioner disagreed with most of the City's arguments, stating that it
had not submitted sufficient evidence to support its other objections.
The Commissioner stated that: "Since persons identified as having been called
by the Mayor's office may not have wanted or indeed invited such an approach,
and may in fact have rejected it, I find that disclosure of the records in
dispute may indeed unfairly damage the reputation of persons identified.
Further, employees also could be unfairly stigmatized for calling a particular
type of help line, 1-800 or 1-900 services, therapists, counselling services
for alcoholism or narcotics, or employee assistance programs."
The Commissioner commented further that: "Public bodies need to develop
written policies regarding the collection, disclosure, linkage, and destruction
of personal information in the form of electronic prints created in the
workplace. In my view, detailed telephone records should be destroyed once
they are no longer needed for verification, audit, or payment purposes."
F. Records Under the Protection of Solicitor-Client Privilege
Order No. 74-1996 - legal aid payment information
A television news reporter had requested legal aid payment records concerning
two defendants in two separate murder trials from the Legal Services Society,
as a matter of the public's right to know how public funds are being spent.
The Society refused to disclose the amounts, or even acknowledge that such
records existed, stating that the information was protected by solicitor-client
privilege under section 11 of the Legal Services Society Act and section 14 of
the Freedom of Information and Protection of Privacy Act. The Society
argued further that the disclosure of such information, if it did exist, would
be an unreasonable invasion of the personal privacy of the individuals
involved.
The Commissioner disagreed with the Society and ordered it to disclose to the
reporter the sum total of tariffs and disbursements made to one legal aid
lawyer for defense work on behalf of the two defendants. He found that the
Freedom of Information and Protection of Privacy Act superceded
section 11 of the Legal Services Society Act, which sets out solicitor-client
privileges, stating that "the Act has created a new form of accountability for
the legal profession when public funds, derived from a public body like the
Legal Services Society, are being disbursed for particular purposes."
The Commissioner also found that solicitor-client privilege, as set out in the
Freedom of Information and Protection of Privacy Act extends to
"communications" between client and solicitor, and that the gross amounts of
payments made to the legal aid lawyer from the Legal Services Society were not
communications between the lawyer and his clients, but rather a matter of
financial information between the lawyer and the Legal Services Society.
The Commissioner stated further that disclosure of the gross amounts of
payments, as requested in this case, do not constitute an unreasonable invasion
of the defendants personal privacy.
G.-Records Relating to Employment
Order No. 52-1995 - job competition information
An applicant had requested from the Ministry of Government Services "the
resumes and test responses of all candidates" for a management-level job
competition. The Ministry consulted with the candidates and then responded by
disclosing the resume and test paper of the successful candidate in full, and
the test paper of one of the unsuccessful candidates with personal identifiers
removed.
The applicant argued that the records should be disclosed as a way of
subjecting the hiring practices of the Ministry to public scrutiny, especially
since "out-of-service" candidates can no longer appeal the hiring decisions of
the government under the Public Service Act. The Ministry refused to disclose
the records of the other unsuccessful candidates, however, stating that
releasing the records would be an unreasonable invasion of their privacy.
The Commissioner upheld the Ministry's decision, finding that its practice of
releasing the resume and test paper of the successful candidate was sufficient
public scrutiny of the government's hiring process. He further agreed with the
Ministry that releasing the information of the unsuccessful candidates would be
an unreasonable invasion of their personal privacy.
He stated that: "Even if the names of the unsuccessful candidates were removed
from the documents, there is a significant risk that outsiders, including the
applicant, with some knowledge of the subject matter of the job competition
could identify them and thereby breach their fundamental right to privacy."
H.-Records Relating to Schools
Order No. 62-1995 - disciplinary proceedings
A parent had requested access to information about disciplinary actions that
were taken by the Delta School Board against a teacher who was involved in an
altercation with the man's son. The School Board refused access to the
records, stating that disclosure would be an unreasonable invasion of the
teacher's privacy and would reveal the deliberations of a School Board meeting
held in camera.
The Commissioner upheld the School Board's decision, stating that release of
information from the in camera meeting would reveal the substance of
deliberations of a meeting that was authorized by the School Act to be
held in the absence of the public. The Commissioner further stated that the
records at issue also were employment records of the teacher, which must not be
disclosed without clear evidence that disclosure is in the public interest.
Although the Commissioner agreed with the applicant that there is a need for
public scrutiny of disciplinary proceedings, he confirmed that the Board "in
the circumstances of the present case, has met these obligations and that the
privacy rights of the teacher are now paramount with respect to the specifics
of the disciplinary decision."
I.-Records Relating to Electoral Proceedings
Order No. 69-1995 - voters lists
A candidate in a June 1995 by-election had requested a copy of the District of
Squamish's complete List of Registered Electors. The District provided him
with a list of the names of all registered electors, with a voter number and
elector type for each. However, the District refused to provide the street
addresses of the electors, stating that disclosure would be an unreasonable
invasion of their personal privacy.
The Commissioner upheld the District's decision, noting that the Municipal Act
was recently amended to allow a chief election officer to omit the addresses of
electors in order to protect their privacy or security. It also allows a chief
election officer to omit an individual address when an individual elector
requests it.
The Commissioner determined that the provisions of the Municipal Act have
primacy over the Freedom of Information and Protection of Privacy Act,
but upheld the decision of the District under both pieces of legislation. He
stated that: "These revisions to the Municipal Act incorporate a customized
set of fair information practices in a manner that I fully support. I find
that they are consistent with the provisions of the Freedom of Information and
Protection of Privacy Act."
Introduction
Under sections 42(1), (2), and 44 of the Freedom of Information and
Protection of Privacy Act, the Commissioner may conduct investigations on a
variety of matters concerning the access to information and protection of
privacy practices of public bodies covered under the Act. These investigations
are often a result of a complaint, but may also be undertaken where the
Commissioner perceives there are larger, systemic information or privacy issues
at stake either within or across public bodies.
Investigation reports provide the opportunity for the Commissioner to examine
the way in which public bodies are implementing the Act and to offer them
guidance in managing difficult information and privacy issues.
Sample Summary of a Recent Investigation Report
Investigation Report P96-006: An Investigation into the practices of the
WORKERS COMPENSATION BOARD of British Columbia with respect to disclosing
personal information about injured workers to employers (March 31, 1996)
Over the past two years, the Commissioner received several complaints by
workers about the Workers Compensation Board (WCB)'s policy of disclosing the
entire contents of a worker's claim file to the worker's employer before an
appeal had been filed. The complainants' main concerns in this regard were
that: (i) disclosure of the entire claim file allows information about a
worker which is not directly relevant to the appeal, such as certain kinds of
medical information, to be disclosed to the employer; (ii) workers only receive
notification of disclosure of their files to the employer after the fact, thus
giving them no opportunity to limit what is included in their files in the
first place, nor to object to its disclosure; (iii) some information that
workers supply to the WCB or health professionals is highly confidential and
should not be released to employers at all; and (iv) employers do not exercise
enough care and/or misuse a worker's personal information which has been
supplied to them by the WCB.
The WCB's general position on these issues was that these disclosure policies
are necessary to meet the legal standard of natural justice set out in
administrative law. The WCB also argued that its disclosure policies complied
with the Freedom of Information and Protection of Privacy Act, since
section 3(2) of the Act does not prevent disclosure of information to "parties
to a proceeding" and in the WCB claim process employers and workers become
"parties to a proceeding" once a claim is made.
In June of 1994, the Commissioner's Office launched an investigation into the
WCB's disclosure policies. It published its investigation report on March 31,
1996.
The Commissioner found that, while he supported the WCB's goals of
administrative fairness and natural justice, he did not agree with its broad
interpretation of section 3(2) of the Act. He stated that if workers and
employers were "parties to a proceeding" from the moment a first decision is
made on a claim, then the entire workers compensation system and its flow of
information would essentially be exempt from the privacy protections of the
Act. The Commissioner concluded that all requests for claim information should
be on a need-to-know basis only, until an actual appeal has been filed. He
further stated that the WCB should take steps to fully inform workers from the
moment a claim is commenced, and prior to any collection of personal
information, that such information may be disclosed to an employer during an
actual appeal.
The Commissioner noted that the fact that personal information on a claim file
may be disclosed in full during an appeal highlights the importance of the WCB
collecting and disclosing only that personal information which is absolutely
necessary for the adjudication of a claim. He advocated that the WCB develop a
policy with respect to the sensitive information that it receives. The
Commissioner also urged the WCB to work with service providers to ensure that
personal information they supply to the WCB does not contain information about
the worker or third parties that is irrelevant to the adjudication of the
claim. The goal, he stated, must be to minimize intrusiveness in the lives of
workers and third parties, and to ensure that the right information reaches the
right person at the right time for the right purposes.
The Commissioner also noted that section 95 of the Workers Compensation Act
sets out new legislative penalties for the misuse of a worker's personal
information by an employer to whom it has been disclosed. He urged the WCB to
take all complaints under this section seriously and to refer all substantiated
complaints to the appropriate Crown Counsel's office for consideration.
Introduction
Under section 42 of the Freedom of Information and Protection of Privacy
Act, the Commissioner has the power to conduct audits of the
information-handling practices and procedures of the over 2200 public bodies
under his jurisdiction. Over the past year, the Commissioner has continued to
emphasize this aspect of his mandate as a primary means of raising the
consciousness of public bodies about the importance of fair information
practices. These practices are set out in Part 3 of the Act and regulate,
among other things, how a public body may collect, use, and disclose personal
information that it maintains as part of its operating and administrative
files.
Conducting a Site Visit
For the most part, site visits are conducted informally. Typically, the
Commissioner and/or members of his staff make a pre-arranged visit to a public
body to discuss freedom of information and privacy issues and to tour the
facilities. The focus is on viewing and understanding the information flow
processes and policies of the public body, particularly within its manual and
computerized record areas.
Site visits have three primary goals:
. To meet the head of the public body and the records and information
management personnel;
. To view how records and information management personnel collect, use, store,
disseminate, and dispose of the personal information under their custody and
control; and
. To address any immediate concerns regarding the privacy, security, and
accessibility of records.
The Office is pleased to report that no public body visited so far has been in
serious breach of the fair information practices required under Part 3 of the
Act. However, in some cases where the Commissioner and/or his staff have
uncovered some specific concerns, the Office has discussed those concerns with
the public body immediately. It notes where any changes are required and, at
times, has conducted follow-up site visits to ensure compliance.
Visits to Particular Public Bodies
Some of the public bodies visited this past year include: BC Women's Hospital;
Children's Hospital; Lions Gate Hospital; B.C. Centre for Disease Control;
Saanich Mental Health Unit; Vancouver Health Department (Burrard Unit); City of
Kelowna; Corporation of Delta; City of Fort St. John; City of Prince George;
Oak Bay Police Services; Saanich Police Department; New Westminster Police
Service; Delta Police Department; West Vancouver Police Department; Ministry of
Social Services (Fort St. John, Vernon, Penticton); Ministry of Attorney
General - Protection Orders Registry; Office of the Public Trustee; B.C. Racing
Commission; Ministry of Small Business, Tourism and Culture - Government
Agents' Offices (Vernon, Kelowna, and Penticton); Workers Compensation Board
(Richmond); British Columbia Institute of Technology; Okanagan University
College; College of Physicians and Surgeons; College of Pharmacists; and the
Law Society of British Columbia.
Site visits have proven to be one of the most effective and immediate
approaches to raising a public body's awareness about its legislated obligation
to handle records in accordance with the requirements of the Act. This is
especially important with respect to public bodies that collect and store
highly sensitive and potentially stigmatizing personal information.
Introduction
Under sections 42(1)(f), (g), and (h) of the Freedom of Information and
Protection of Privacy Act, the Commissioner has a mandate to comment on the
implications for access to information or the protection of privacy of: (i)
proposed legislative schemes or programs of public bodies, (ii) automated
systems for the collection, storage, analysis, or transfer of information, and
(iii) the use or disclosure of personal information for record linkage. The
Commissioner also has a general responsibility to inform the public about the
Act under section 42(1)(c). This mandate includes public discussion of any
major issues affecting the information and privacy rights of individuals under
the Act.
The Commissioner fulfills his advisory role by consulting with a wide range of
public bodies directly and commenting on proposed legislative schemes or
programs, as well as by speaking publicly on issues where he feels debate is
particularly warranted or advisable. At the end of the day, however, it is the
Legislature that makes decisions about the enactment of particular legislative
schemes or programs. The Commissioner monitors the implementation of any new
legislative schemes or programs of public bodies under his jurisdiction, with
respect to the impact of these programs or schemes on the information and
privacy rights of British Columbians.
Under the authority of the Freedom of Information and Protection of Privacy
Act, the Commissioner may issue orders or reports dealing with any
contentious information or privacy issues or related disputes arising from the
operation of public programs.
Criminal Records Checks
One of the major privacy issues upon which the Commissioner commented publicly
in the last year was the Criminal Records Review Act. The Act
implements a system of mandatory criminal records checks for individuals who
work with children. The purpose is to reduce the likelihood that children will
become subjects of physical or sexual abuse at the hands of these individuals.
The Act applies to all current and new employees or licencees who work with or
may have unsupervised access to children in organizations that are operated or
licenced by or receive operating funds from the provincial government.
In his statements about the proposed legislation, the Commissioner emphasized
that he does not object to a systematic program of criminal records checks for
persons who work directly with children. However, he noted three basic
concerns about the legislation:
(I) its broad scope; (ii) the error rates associated with the Canadian Police
Information Centre (CPIC); and (iii) the need for fair information practices.
The Commissioner consulted with the Ministry of Attorney General in the Spring
of 1995, before the Bill was introduced in the Legislature, to express his
concerns. He then made his views known publicly as the Bill was being
considered by the Legislature. The Act received Royal Assent in June 1995
however, without significant opposition, and became law on January 1, 1996.
The Commissioner is concerned about the scope of the legislation since it
targets the members of whole categories of occupations and professions for
criminal records checks. This will result eventually in the collection and
matching of sensitive personal information on 280,000 adult British Columbians.
This is approximately one-sixth of the adult population. The Commissioner
considers this breadth of coverage to be excessive and a substantial intrusion
into the private lives and identities, not only of those individuals who work
with children, but also of those who have no regular contact with children in
the course of their employment, such as significant numbers of physicians,
nurses, and dentists.
With respect to the use of the Canadian Police Information Centre (CPIC) as the
database against which criminal records checks will be made, the Commissioner
has three particular concerns: (i) the CPIC database has an error rate and,
although the specific error rate is unknown to the public, there is significant
risk that innocent people will be at least temporarily stigmatized by erroneous
allegations that they have a criminal record; (ii) the CPIC database is not
subject to systematic auditing by the privacy commissioners of Canada; and
(iii) persons listed on the CPIC database are overwhelmingly male, while the
target group of "those working with children" is largely female.
The Commissioner's third major concern is the potential for inappropriate uses
of personal information --particularly sensitive personal information -- that
is collected and stored in computerized databases. However, the central agency
processing the criminal records checks is operated by the Ministry of Attorney
General and thus governed by the Act. The Commissioner has indicated that he
will monitor and audit the operation of the criminal records check process to
ensure that there is compliance with the fair information practices set out in
Part 3 of the Freedom of Information and Protection of Privacy Act.
These practices regulate the proper collection, storage, use, and disclosure of
personal information in the hands of a public body.
A final concern about the approved system of criminal records checks is that it
may convey a false sense of security to the public that children are indeed
being protected. Studies show that perhaps 80 percent of child abuse occurs in
the home and/or at the hands of individuals known to victims.
Now that the Criminal Records Review Act and the criminal records check
program are operational, the Commissioner's advice to individuals who remain
concerned about mandatory criminal records checks is to complain to their MLAs.
Those who have concerns about specific inappropriate invasions of their
personal privacy under the Freedom of Information and Protection of Privacy
Act may complain directly to the Commissioner's Office.
Identity Cards
In the spring of 1995, the Commissioner's Office became aware that the
government was developing plans to introduce some type of identity card for
British Columbians. The card under consideration would likely merge the
separate cards currently carried by individuals such as the British Columbia
driver's licence and the Care card, into one "identity card." The government's
rationale, as reported in the media, was that it would reduce fraud and make
the process of identifying individuals using government services more
effective.
The government did not state publicly exactly what format the identity card
would take nor for what specific purposes it would be used. Initial comments
from officials indicated, however, that the central means of identification in
the card would be a digitized photograph. Other preliminary information
indicated that the ministries that were working together to develop the card
were the Ministry of Transportation and Highways and the Ministry of Health.
The Commissioner's main concern with the government's consideration of an
automated identity card was that there is serious potential for record
linkages. Whereas now an individual's health, social services benefits, and
driver's licence data are maintained in separate databases, the technology of
an identity card would allow the linking of these databases and others. This
potentially would provide one entry point through which all government-held
information about a particular individual may be accessed.
There are three further issues that the Commissioner commented on with respect
to identification cards. In general, they: (i) facilitate the operation of a
surveillance society; (ii) are eventually used for multiple purposes; and (iii)
impact upon fundamental human rights and civil liberties. Resistance to such
cards for these reasons has already been articulated internationally.
Australian privacy advocates defeated a proposal for national identity cards in
the mid-1980s and, earlier in the decade, Germans and French Socialists also
defeated comparable proposals.
The Commissioner told the Ministry of Health and the Ministry of Transportation
and Highways, and has stated publicly, that the need for a provincial identity
card should be demonstrated empirically. He has also stated that the potential
benefits should be weighed carefully against their implications for human
rights and civil liberties. In other words, identity cards should not simply
be a technology in search of an application.
The Commissioner has stated that he is prepared to provide the government with
further details of his concerns about a proposed identity card and to comment
publicly on its implications, once more details become available.
Freedom of Information Requests and the Litigation Process
There has been a recent, significant increase in the use of the Freedom of
Information and Protection of Privacy Act by individuals and their lawyers
as an aid to civil litigation and other proceedings against public bodies. The
Commissioner's Office has reviewed this issue and offers the following
guidelines.
When individuals are involved in civil litigation against a public body, they
have the right to receive relevant records from the public body through the
discovery process of the courts. However, an increasing number of these
individuals and their lawyers are using the Act as a supplement to, or even a
replacement for, established disclosure processes and remedies.
Two important principles of the Act are relevant to this issue. Firstly,
section 2(2) of the Act states that the Act does not replace other procedures
for access to information. Secondly, section 3(2) states that the Act does not
limit the information available by law to a party to a proceeding. These two
principles make it clear that the Act was not intended to replace the discovery
process as a means for individuals and their lawyers to obtain records and
information for the purposes of civil litigation.
In general, the right of access to records in a court proceeding depends on the
relevance of the records to the individual's claim or defence. By contrast,
the right of access to records under the Freedom of Information and
Protection of Privacy Act may be narrower due to the exceptions to
disclosure found in sections 12 to 22 of the Act. As a result of these
exceptions, individuals applying for access under the Act frequently receive
fewer records and less information than they might be entitled to obtain
through discovery in civil litigation.
In short, individuals should use the most cost- and time-effective methods to
obtain records from public bodies. While the Act may be the best method for
those individuals who are not involved in civil litigation or some other legal
process, individuals who are involved in civil litigation, criminal
proceedings, arbitration, or other adjudicative process would do better to make
full and timely use of the disclosure processes already open to them in such
proceedings. They should rely upon the Act for supplementary disclosure only
and, even then, only if necessary.
The Commissioner has addressed the limits of his jurisdiction in this regard in
several recent
Orders:
"I would like to remind applicants that my role is simply to review requests
for information under the Freedom of Information and Protection of Privacy
Act. While applicants may have a general sense of grievance that they wish
me to remedy, I am not in a position to do so under the Act. They cannot
obtain the remedies from me that may be available from another venue."
[Order No. 42-1995, June-9, 1995, page-4]
"I have to remind counsel and the applicant that the focus of this inquiry is
whether the applicant has a right of access to certain records in the custody
and control of the Ministry. Whatever her motives for wanting the records, I
can only deal with this issue of access to records under the Freedom of
Information and Protection of Privacy Act. This venue is not a court of
general jurisdiction for the righting of perceived injustices." [Order No.
49-1995, July-7, 1995, page-4]
"Some of these quasi-legal arguments may be relevant in a lawsuit against [the
public body] or [a contractor] for redress of the applicant's grievances; they
have nothing to do, in my view, with my decision on the current request for
access. A court of law is an appropriate venue for the applicant to seek to
settle his perceived ongoing disputes with [the public body] and the
contractor." [Order No. 95-1996, March-21, 1996, page-3]
Introduction
Under section 42(1)(c) of the Freedom of Information and Protection of
Privacy Act, part of the Commissioner's mandate is to inform members of the
public about their access and privacy rights under the Act and about the
activities and resources of the Commissioner's Office. To fulfill this
function, the Commissioner and his staff regularly promote the Act and the work
of the Office through speaking engagements, conferences, interaction with the
media, and involvement in the information and privacy community across British
Columbia, Canada, and around the world.
This past year, the Commissioner, Director, and Portfolio Officers gave a
considerable number of informal talks, speeches, and written presentations to
various groups and organizations. In addition, the Office hosted its second
annual information and privacy conference and participated in a number of
events hosted by other agencies which highlighted information and privacy
issues.
Presentations and Contact with the Media
The Commissioner has been interviewed frequently over the past year by members
of the print and electronic media, commenting on current information and
privacy issues affecting British Columbians and Canadians. He also made
numerous presentations to various public and private sector groups concerning
general access and privacy issues, as well as provided informational sessions
upon request about the work of the Office and the functioning of the Act.
Some groups that the Commissioner has spoken to recently are the Continuing
Legal Education Society of British Columbia (CLE) "Freedom of Information Law -
1996 Update" seminar, broadcast journalism students at the British Columbia
Institute of Technology, and medical and health practitioners at the "Med Info
'95" Conference.
The Commissioner also sponsored and participated in special information and
privacy events, such as the "Meet the Privacy Commissioners" evening with Bruce
Phillips, Privacy Commissioner of Canada, as well as a similar event with the
Information Commissioner of Canada, John Grace. He participated in the Summit
of Canadian federal and provincial Information Commissioners, and was a speaker
at several international conferences, such as the "17th International
Conference on Data Protection" in Copenhagen and the "8th Annual Privacy Laws
& Business Annual Conference" in Cambridge, England.
The Director of the Commissioner's Office also attended several speaking
engagements and conferences, either with the Commissioner or in his stead.
Some of the events she attended included: a conference of Western Canadian
Colleges and University Ombudspeople at the University of Victoria, the Annual
B.C. College of Teachers Certification Conference in Vancouver, and the B.C.
Supreme Court Judges' Conference in Penticton.
The Office's Portfolio Officers also make presentations or attend conferences
on behalf of the Office. Events attended by Portfolio Officers this past year
include: a panel presentation for the B.C. Freedom of Information and Privacy
Association (FIPA) during Information Rights Week; a presentation at the 5th
Annual Alternate Dispute Resolution Conference (Seattle, Washington); a
presentation on "Litigation, ICBC and the Freedom of Information and
Protection of Privacy Act" at the Continuing Legal Education (CLE) seminar
in the fall of 1995; several presentations at the Freedom of Information Law -
1996 (CLE) Update in January 1996; presentations to the Canadian Bar
Association (Vancouver and New Westminster); briefing sessions on the Act for
UTV and Richmond School District; participation in a Burnaby Cable Television
Community Focus Talk Show; and a presentation at the B.C. Association of Police
Affiliated Victims-Witness Services Conference.
Information and Privacy Conference 1995
In the fall of 1995, the Office hosted its Second Annual Freedom of Information
and Protection of Privacy Conference. There were two sessions, one in Victoria
and one in Vancouver. The conference was attended primarily by representatives
of local and provincial public bodies who deliver information and privacy
programs for their organizations. The conference was also attended by the
media and the general public.
The primary focus of the conference was the daily work of the Commissioner's
Office, "fair information practices" in government, and the privacy and access
to information issues surrounding health, education, municipal, and police
records. The conference also featured a presentation by the Commissioner on
identity cards.
Planning is underway for the 3rd Annual Conference, scheduled for fall of
1996.
New Web Site
As part of the continuing effort to increase public awareness of the Act and to
make the work of the Office widely accessible to as many people as possible,
the Office set up a World Wide Web site on the Internet in June 1995.
Initially the site contained only the most frequently requested public
documents, such as the Commissioner's Orders, but it has now grown to include a
long list of research and informational materials, as well as useful links to
other information and privacy sites around the world.
The web site address is: http://www.cafe.net/gvc/foi/
Currently, the site contains the following materials:
· the Commissioner's Orders
· the Freedom of Information and Protection of Privacy Act
· the Commissioner's Investigation Reports
· a Table of Concordance, which cross-references sections of the Act to
the
Orders
· the Commissioner's major speeches and presentations
· the Commissioner's Annual Reports: 1994-95 and 1995-96
· information about the Commissioner's Office and how to contact it
· the Office's Policies and Procedures
· announcements of current events, such as conferences and other related
information and privacy events
· links to other major information and privacy Internet sites in Canada
and around the world
The web site is constantly being updated and expanded to meet the informational
needs of the public. New materials, such as recent Orders and presentations
are added to the site within days of their official release in hard copy, and
the tables are updated approximately every five
orders.
The Need for Private Sector Data Protection in British Columbia
The Current Reality: Lack of Sufficient Regulation
· Most private companies face no legal obligation to collect relevant
personal information only, nor to limit its disclosure only to those
organizations or persons that have a legitimate need to know.
· Few private organizations are obliged to ask an individual's consent
before disclosing his or her personal information to third parties.
· Few private organizations grant individuals the right to access or
correct their own files.
· Few private organizations are legally required to maintain appropriate
security safeguards over the personal information that they hold.
· The advent of the information highway and its accompanying technology
means that companies will now be able to collect personal data and profile the
needs, habits, and choices of individuals and groups with greater ease than
ever. This means a greater capacity for surveillance and intrusion into
people's lives.
· As many as four public opinion polls in the last few years have
indicated that Canadians are very concerned about their personal privacy. The
latest poll from the Public Interest Advocacy Centre (PIAC) found that: (i) 76
percent of Canadians feel that they have less control over their personal
information than they did 10 years ago; (ii) 94 percent believe that personal
information should not be passed on to another organization without permission;
and (iii) 87 percent believe that protection of personal information should be
a priority of government.
The Call for Regulation
· Some jurisdictions have already addressed private sector regulation:
(i) the European Union passed a Directive in July 1995 which mandates every
member country to have strong data protection rules and to prevent flows of
data to those countries that do not have adequate protection. Most European
countries already regulate their private sector for privacy protection; and
(ii) Quebec passed legislation regulating the private sector in 1993, becoming
the only jurisdiction in North America to legislate a comprehensive set of
privacy safeguards for the private sector.
· The Information Highway Advisory Council (IHAC) has recently prompted
the Canadian federal government to create a level playing field for the
protection of personal information on the Information Highway by developing and
implementing a flexible legislative framework for both public and private
sectors.
· The Canadian Direct Marketing Association (CDMA) has called for formal
data protection legislation. This is significant because it is not often that
an industry association makes a call for more regulation.
· There is broad all-party political support for privacy legislation in
Parliament, evidenced most recently by the introduction in December of a
private member's Bill by Reform M.P. Phillip Mayfield proposing to restrict the
use of mailing lists. Although it was voted down by government with the
argument that a better and broader law would be drafted to address the issue,
the bill received broad all-party support in the House.
Interim Solutions
· The Canadian Standards Association (CSA) has negotiated a Model Code for
the Protection of Personal Information, which was approved by a committee of
stakeholders from government, industry, and consumer groups and officially
launched on March 11, 1996. Although the Code is only voluntary and there are,
as yet, no certification or registration procedures in place and no sanctions
for non-compliance, the Office of the Information and Privacy Commissioner for
British Columbia strongly urges adoption of the CSA Code by the private sector
in this province.
Conclusion
· The Office of the Information and Privacy Commissioner for British
Columbia supports the new CSA Code and other interim measures, such as the
Canadian Bankers Association's new model privacy code, as useful means to
enhance personal privacy protection of private sector clients. The Office
encourages all businesses in British Columbia that collect and process personal
information to adopt the CSA Model Code and to establish their own internal
rules of fair information practices based on the Code.
· However, the Office calls upon the Governments of Canada and British
Columbia to give privacy protection in the private sector the force of law.
The Office fully supports the recommendations of Industry Canada's Information
Highway Advisory Council (IHAC) and the Canadian Direct Marketing Association
that national and provincial legislation is needed in order to provide uniform
and consistent privacy protection for all Canadians. These legal protections
would bring Canada and British Columbia into line with the privacy protection
laws of its trading partners in Europe and around the industrial world.
BUDGET ALLOCATION FOR THE 1995/96 FISCAL YEAR
Total Salaries and Benefits $1,877,491
Total Operating Costs $398,268
Total Asset Acquisitions $34,541
Total Grants and Contributions $1,000
Total Recoveries ($25,000)
Total Voted Expenditure* $2,630,000
*The 1995/1996 voted expenditure provided for a staff of 25.
Goals for Fiscal 1996/1997
On November 2, 1995, the Act's jurisdiction was expanded to cover
self-governing professional associations. With this expansion of jurisdiction,
the Office plans to:
· Develop and maintain productive working relations with such public
bodies;
· Monitor, encourage and, where necessary, enforce compliance with the
Act;
· Promote a wider public understanding of the Act and the Commissioner's
role;
· Continue to build an integrated office that responds effectively to its
increased clients' needs;
· Conduct investigations and audits to ensure compliance with a provision
of the Act;
· Engage in or commission research into anything affecting the achievement
of the purposes of the Act.
The Office of the Information and Privacy Commissioner's 1996/1997 Expenditure
Target reflects the annual operating costs and the funding required to achieve
the goals of this expanded jurisdiction.
APPENDIX B
A major achievement of our Office to date has been the settlement of most cases
before they had to be brought to an inquiry. This reflects the quality of the
professional and administrative staff working in this Office.
The following list identifies the names and occupations of staff members for
the 1995/96 fiscal year:
Ellinore Barker Librarian
Wendy Bernt Law Co-op (December 1, 1995-April 30, 1996)
Darleen Blacker Human Resources Technician
Linda Calver Finance and Administration Manager
Mary Carlson Portfolio Officer
Lorrainne A. Dixon Director
Betty Down Intake Officer (until November 1995)
Helga Driedger Administration Assistant
Judy Durrance Senior Executive Secretary
Barbara L. Fisher Chief Counsel (contractor)
David H. Flaherty Commissioner
Celia Francis Portfolio Officer
R. Kyle Friesen Portfolio Officer
Mark Grady Portfolio Officer
Sandra Kahale Researcher, Special Projects (June 1, 1995 - October 6, 1995)
Barbara Jemson Office Assistant/Secretary
Charmaine Lowe Intake Officer
Peter Luttmer Portfolio Officer
Gary Martin Law Co-op (September 1, 1995 - December 29, 1995)
Maureen Meikle Portfolio Officer
Deirdre O'Connell Law Co-op (May 8, 1995 - August 25, 1995)
Sharon Plater Portfolio Officer
Susan E. Ross Counsel (contractor)
Ralph Sketchley Portfolio Officer
Michael Skinner Portfolio Officer
Pamela E. Smith Research and Communications Officer
Ingrid Thorleifson Office Assistant/Secretary (until November 1995)
Bill Trott Portfolio Officer
Stacie Young Receptionist
Pamela Wallace Intake Officer (from October 1995)
APPENDIX C
APPENDIX D
CHRONOLOGICAL TABLE OF
ORDERS
ORDER