Letter to the Commissioner of the RCMP

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April 3, 2008


The Privacy Commissioner of Canada, Jennifer Stoddart, sent the following letter to the Commissioner of the RCMP, regarding provisions of the Privacy Act for public interest disclosures.

William J.S. Elliott
Commissioner of the RCMP
Headquarters Bldg.
1200 Vanier Parkway
Ottawa, ON  K1A 0R2

Dear Mr. Elliot:

My Office has noted with interest the statements made to the media on March 24 and 25, 2008 that the RCMP refuses to disclose, for operational and privacy reasons, statistics regarding the use of taser guns by their members.  For your information, Canada’s privacy laws take into account that there are occasions when it is appropriate and reasonable to disclose personal information without consent.  The Privacy Act, which protects personal information of individuals held by government institutions and agencies, does contain a provision for public interest disclosures. 

Under paragraph 8(2)(m) of the Privacy Act, the head of an institution may disclose personal information for any purpose where, in the opinion of the head of an institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or the disclosure would clearly benefit the individual to whom the information relates. 

Unfortunately, this provision is not always well understood and this is why, on occasion, privacy laws are perceived as standing in the way of disclosures of information to the media.

Generally, it is the decision of the head of the institution to determine whether the public interest outweighs the right to privacy.  Yet, Parliament intended that this provision not become a routine basis for privacy invasion - that is why the phrase "clearly outweighs" appears in subparagraph 8(2)(m)(i) of the Privacy Act.  In addition, the Privacy Commissioner must be notified, pursuant to subsection 8(5), of any disclosures of personal information in the public interest.  The Privacy Commissioner may express concerns, if any, with the proposed disclosure and may, if appropriate, notify the individual whose information will be disclosed.  It is, however, ultimately the institution’s decision as to whether it will or will not release the information, and how much it will release.

Similarly, institutions must be careful not to overuse the public interest override.  Institutions must therefore properly exercise the discretion Parliament gave to them.  In sum, the presence of the discretionary authority, as a matter of law, requires government institutions to exercise the discretion in good faith, on a case-by-case basis, taking into account the specific information at issue and all relevant factors weighing both for and against disclosure.

As follows, there are occasions when it is appropriate and reasonable to disclose personal information without consent – for health, safety, security, and other reasons related to the public interest.  A Fact Sheet prepared by this Office and entitled The Privacy Act: Not an excuse to promote secrecy sets out the specific circumstances in which government institutions may disclose personal information without the individual’s consent.  We have attached this Fact Sheet for your perusal.

We hope that these comments will be useful to you.  If you have any questions of if you would like to discuss these matter, please do not hesitate to contact my assistant, Rachel Desjardins, at (613) 947-6000.

Sincerely,

Original signed by

Jennifer Stoddart
Privacy Commissioner of Canada

Encl.

c.c.:     Robert Marleau, Information Commissioner of Canada
            Paul E. Kennedy, Chair of the Commission for Public
            Complaints Against the RCMP

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