Husband’s financial information disclosed to wife’s lawyers by accounting firm improperly complying with Summons to Witness

PIPEDA Case Summary #2009-005

[Principles 4.3, 4.6 of Schedule 1, and paragraph 7(3)(c)]

Lessons Learned

  • A Summons to Witness can be considered a subpoena in certain circumstances for the purposes of paragraph 7(3)(c) of the Act.
  • No disclosure of personal information without an individual’s consent is allowable under paragraph 7(3)(c) unless the legal writ (e.g. subpoena, warrant) specifically requires the disclosure to a named party or parties.
  • The information disclosed in compliance with the legal writ under paragraph 7(3)(c) must be limited to that which is specifically requested by the writ and released only to the party or parties named therein.

An individual involved in divorce proceedings complained when an accounting organization disclosed his investment and tax information without his consent directly to his wife’s legal counsel.  The wife’s legal counsel had issued a Summons to Witness to the accounting organization, requesting that the organization appear in court with the financial information in order to give evidence.  The individual claimed that the organization’s outright disclosure exceeded what was legally required and had violated his right to privacy.  The Assistant Commissioner found that the accounting firm had misinterpreted the Act in the given circumstances, not respected the intent of the Summons to Witness, and inappropriately disclosed the individual’s personal information.

The following is an overview of the investigation and the Assistant Commissioner’s findings.

Summary of Investigation

Consent

A national accounting and advisory firm was served with a Summons to Witness in proper legal form in accordance with Ontario Family Law Rules.  The summons required the organization’s attendance in court in order to give evidence, and specifically requested that it bring the complainant’s financial records and income tax returns dating back to 2000.  

An employee of the organization provided instead the requested documents, two days before the court date, directly to the law firm that had issued the summons without requesting or obtaining prior consent from the complainant to disclose his personal information.  The law firm was representing the complainant’s wife in their divorce proceedings.   

At the time of the disclosure, the accounting organization did not have an active relationship with the complainant and was not his current tax accountant, but four years previously had provided some accounting services for him.

The organization explained to this Office that it believed the disclosure was allowable under paragraph 7(3)(c) of the Act

This Office first advised the organization that the Summons to Witness can be considered a subpoena (since it imposes an obligation to appear in court and provides a penalty for non-appearance).  However, paragraph 7(3)(c), which provides an exception to obtaining an individual’s consent, does not apply in this case since the summons required simply an appearance in court to give evidence, bringing specific documents—it did not compel the documents to be disclosed.  

Further, even in the case of a disclosure in accordance with paragraph 7(3)(c), it is still incumbent upon an organization to proceed with disclosure with the interest of the individual uppermost in its mind.  This Office stressed that the disclosure must be limited only to what is required, and the disclosing organization must make an effort to limit disclosure as much as possible.  

Accuracy

The complainant alleged that the information disclosed by the organization was inaccurate.   More specifically, he disputed its accuracy for the purpose of determining a property settlement related to his divorce. 

Although the information had indeed at one time been provided by him to the accounting organization, he claimed that some of it had been collected and used for accounting and tax purposes only, as these purposes related to his investments four years before.  However, according to the complainant, the information was inaccurate for determining a property settlement.

Findings

Issued February 23, 2009

Application: Principle 4.3 of Schedule 1 states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.  Paragraph 7(3)(c) stipulates that an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is required to comply with a subpoena or warrant or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records.  Principle 4.6 states that personal information shall be as accurate, complete and up to date as is necessary for the purposes for which it is to be used.

In making her determinations, the Assistant Commissioner deliberated as follows:

Consent

  • The organization did not dispute disclosing the information to the lawyers of the complainant’s spouse, but initially believed that its actions were defensible pursuant to paragraph 7(3)(c) of the Act.
  • This Office’s investigation confirmed that the Summons to Witness served upon the organization did not require that any documents be produced.  It required simply that the organization appear in court on an appointed day, and directed it to bring specified documents that would assist in answering questions from the court.
  • Paragraph 7(3)(c) provides for disclosure without consent under Principle 4.3 if the disclosure is required to compel the production of information or records.  In the case at hand, while the Assistant Commissioner noted that the Summons to Witness could be considered a subpoena (since it imposes an obligation to appear in court and provides a penalty for non-appearance), its issuance did not in itself require the production of any information to the wife’s lawyers.  It required simply an appearance in court to give evidence, bringing specified documents.
  • Consequently, the Assistant Commissioner determined that Principle 4.3 had been contravened. 

Accuracy

  • The accounting organization acted in accordance with principle 4.6 by maintaining information as accurate, complete and up to date as necessary for its tax and accounting purposes relative to the complainant’s investments (i.e. the purposes for which it had been collected and used). 
  • It would not have been reasonable to expect the organization to change or update the information before presenting it to a court for the court’s purposes, which may be different than those for which it had been collected or used.  Issues with respect to accuracy, currency and relevance of the information to the decisions of the court would appropriately have been dealt with in the context of the requirements for lawful disclosure.
  • In the case of a lawful disclosure, the organization would be required by the Act to provide context for the information to best represent the interests of the individual to whom the information pertained.

Conclusion 

The Assistant Commissioner concluded that the complaint was well-founded and resolved with respect to the consent matter and not well-founded with respect to the disputed accuracy of the information disclosed.

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