Publicly available information about individual’s bankruptcy cannot be disclosed for debt-collection purposes without her consent

PIPEDA Case Summary #2009-020

[Principle 4.3; Paragraphs 7(3)(b) and 7(3)(h.1); and Subsection 1(c) of the Regulations]

Lessons Learned

  • Organizations should be careful about how much information they disclose to others about an individual when attempting to collect the individual’s debt.
  • Paragraph 7(3)(b) does not permit organizations to disclose any information they wish, simply because they are recovering a debt. Any of the debtor’s personal information disclosed without their consent is to be strictly limited to that necessary for debt-collection purposes.
  • When an individual’s personal information appearing in a public registry has been collected under a statutory authority (and to which a right of public access is authorized by law), the collection, use and disclosure of that information without the consent of the individual must be related directly to the purposes for which the information appears in that registry.

A local business to which an individual owed a debt told two of her siblings about the individual’s financial situation and her personal bankruptcy.  The individual objected to the business disclosing this information about her without obtaining her consent.  The organization believed that her consent was not required, under an exemption from the Act covering debt-collection situations.  It also believed that since the information about her bankruptcy was publicly available, her consent was not required.

The Assistant Commissioner found that neither of the exemptions applied in this case.

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

Summary of Investigation

A local funeral home handled the arrangements after the death of the individual’s father.  It was agreed that only the individual herself would be billed for the cost.

When her account fell into arrears, the business made repeated efforts to collect from the individual.  At one point, she told the funeral home that she was about to file for bankruptcy.  The funeral director then called the individual’s sister, informing her of the possible bankruptcy and the account arrears.  

When the funeral home received copies of the individual’s bankruptcy papers from the trustee in bankruptcy, it called her sister again, confirmed the bankruptcy and inquired about who would be settling the account.

Later, in a private conversation with the individual’s brother—and still trying to collect on the account—a funeral home employee informed the brother of his sister’s bankruptcy and the account arrears.  

As a result, the individual complained to this Office.  She believed that, by speaking to her family about her financial situation without her consent, the funeral home had improperly disclosed her personal information.

The funeral home asserted that its disclosure was allowed under paragraph 7(3)(b) of the Act, which exempts the requirement of obtaining consent for disclosures when a debt is being collected.

As well, the funeral home noted that the information about the complainant’s bankruptcy was already public information.  Specifically, the Bankruptcy and Insolvency Act (RS Canada 1985 c. B-3) stipulates in s. 11.1(1) that a public record of bankruptcies must be kept and must be made available to the public on request.  The funeral home had received the bankruptcy papers of the complainant directly from the trustee in bankruptcy, as provided for in the statute.  Consequently, the funeral home believed that the complainant shouldn’t have had any expectation of privacy where her bankruptcy was concerned.

Findings

Issued December 10, 2009

Application: Principle 4.3 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)(b) stipulates that consent is not required for the purpose of collecting a debt owed by the individual to the organization.  Paragraph 7(3)(h.1) states that an organization may disclose personal information without the knowledge or consent of the individual if that information is publicly available and is specified by the Regulations Specifying Publicly Available Information.  Subsection 1(c) of the Regulations specifies the following type of information, for the purposes of paragraph 7(3)(h.1):  Personal information that appears in a registry collected under a statutory authority and to which a right of public access is authorized by law, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the registry.

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

  • In case summary #2004-282, the Assistant Commissioner previously examined how the exception under paragraph 7(3)(b) can be applied: “…While acknowledging that an organization may disclose an individual’s personal information without consent for the purposes of collecting a debt, this exception does not confer … a carte blanche upon an organization to disclose however much information it wishes in pursuing a debt.”
  • The funeral home disclosed to the siblings more information than the fact that the account was unpaid.  It disclosed the complainant’s impending and then actual bankruptcy to individuals who were not responsible for the debt.  The Assistant Commissioner thus found that more information was disclosed than is allowed under paragraph 7(3)(b), given the circumstances.  As such, this exemption to obtaining consent cannot be applied.
  • The Assistant Commissioner next considered the relevancy of s. 11.1(1) of the Bankruptcy and Insolvency Act (RS Canada 1985 c. B-3) since the organization had stated that, pursuant to this statute, the individual’s bankruptcy was already a matter of public record.
  • The Assistant Commissioner noted that the exception from the Act regarding publicly available information (Subsection 1(c) of the Regulations relative to paragraph 7(3)(h.1)), specifies that the disclosure, in order to be exempted from the consent requirement regarding a public registry, must be made for a purpose related directly to the purpose for which the information appears in the registry.  The purpose of the bankruptcy legislation is, in part, to establish a way for creditors to establish their claims and be repaid.  The purpose of the registry established under that statute is to further those aims. 
  • In this case, the Assistant Commissioner noted that the information about the complainant’s bankruptcy was used by the funeral home to circumvent the process for payment established by the Bankruptcy and Insolvency Act.  Thus, her personal information was disclosed to other family members in an effort to directly collect a debt, by means other than those specifically provided by the Bankruptcy and Insolvency Act.    
  • Since the purpose for the disclosure was clearly not related directly to that for which the information existed in the public registry, the funeral home cannot validly claim an exemption to consent under Subsection 1(c) of the Regulations relative to paragraph 7(3)(h.1).

Conclusion 

The Assistant Commissioner concluded that the complaint was well-founded.

See also

Case summary #2004-282.

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