Counsel, Conciliate, Reconcile
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Remarks at the 2009 Symposium of the Association québécoise des avocates et avocats en droit de l’immigration
October 23, 2009
Address by Jennifer Stoddart
(Check against delivery)
I would like to thank the Association for this wonderful opportunity to return to Montréal.
Privacy and access to information are fundamental rights that are often mentioned together in a way that casts the two as opposite poles. The right to privacy is also characterized as being in opposition to a number of other concepts, such as national security, transparency of justice, and transparency of operations in the machinery of government.
In fact, these values are not irreconcilable with the right to privacy. One could even say that some of these pairings are false dichotomies.
I will begin by giving you an overview of the work the Office of the Privacy Commissioner of Canada has undertaken in light of some of these issues. I will speak about access to personal information as it pertains to citizenship and immigration cases—an issue that calls to the fore the need to reconcile national security measures and the right to privacy.
The practice of publishing court decisions online provides us with the opportunity to re-examine the implied dichotomy between transparency in the administration of justice and privacy protection.
Lastly, I would like to discuss the two elements that served as inspiration for this gathering, access to information and the right to privacy, to look at the misuse of the Privacy Act as a screen for operations in the machinery of government.
Role of the Privacy Commissioner of Canada
First, I would like to tell you more about our Office, as it is an organization that you probably do not regularly deal with.
The Office of the Privacy Commissioner reports directly to Parliament and is responsible for ensuring compliance with the two federal acts protecting the right to privacy in Canada. The more recent of the two, the Personal Information Protection and Electronic Documents Act, applies to the private sector.
It is under this Act that we have conducted the Facebook investigation that has been in the headlines recently. This presentation will deal predominantly with the older of the two acts, the Privacy Act, which applies to the public sector.
Both acts govern the use of personal information in their respective sectors, and regulate an individual’s access to his or her personal information held by the organizations concerned.
We accomplish our mandate through four clearly defined functions:
- We respond to requests for information;
- We receive and investigate complaints;
- We analyze privacy assessments mandated by the Treasury Board of Canada that are sent to us by federal agencies about their programs; and
- We verify the privacy practices of agencies subject to the Act.
We also play an important role in overseeing the standards in accordance with which the Government of Canada may hold your personal information and that of your clients.
We report to Canadians on our activities during our frequent appearances before parliamentary committees and in the two annual reports we submit every year, one for each of the acts that we are responsible for monitoring.
I encourage you to consult the 2008–2009 annual report on the Privacy Act, which will be tabled in Parliament soon. That document contains more information on many of the topics I will be speaking about today.
Citizenship, immigration and deportation
The number of complaints received about a federal institution does not necessarily indicate that the institution’s practices do not comply with the Act. Owing to the nature of their mandate, certain institutions hold a considerable amount of personal information.
It is therefore more likely they will receive a greater number of requests for access to personal information and, as a result, a greater number of complaints.
This is the case for Citizenship and Immigration Canada, which regularly appears on our top-ten list of institutions with the greatest number of complaints.
However, these figures must be put into perspective: the 27 complaints we received about Citizenship and Immigration in 2008-2009 represent barely more than a fifth of all the complaints filed against Human Resources and Skills Development Canada and Service Canada, and barely more than a tenth of the complaints filed against the Correctional Service of Canada.
In general, complaints about access to an individual’s personal information held by a federal institution are routine business.
However, in cases covered extensively by the media involving foreign nationals targeted by security certificates, the issue of access to personal information is intertwined with the issue of procedural fairness.
Those whose names are still in the news have all been caught in the extraordinary circumstances of a modern struggle: the confidentiality of security intelligence and the right to know the facts on which accusations are based.
Three of the complaints filed with our Office are now before the Federal Court. It goes without saying that we are closely following those developments.
Since the beginning of the decade, we have received numerous privacy assessments about biometric initiatives from Citizenship and Immigration Canada.
For example, you are all aware that Citizenship and Immigration, in association with the RCMP and the Canada Border Services Agency, has proposed a project in which biometric data such as fingerprints and photographs would be used to confirm an individual’s identity.
You have likely heard of various programs aimed at sharing information with other nations, especially those in the "group of five" comprising Australia, Canada, New Zealand, the United Kingdom and the United States, and of the outsourcing of visa processing to a third party.
We will review these initiatives according to a four-part test:
- Is the measure necessary to meet a demonstrable need?
- Is it likely to be effective in meeting that need?
- Is the loss of privacy proportional to the benefit gained?
- Is there a less privacy-intrusive way of achieving the same end?
We are currently discussing these questions with the departments and agencies concerned.
This leads me to the second point of my presentation this morning, namely the practice adopted by certain administrative and quasi-judicial tribunals to publish their decisions online.
This issue brings together the concepts of transparency in the administration of justice and privacy protection. It has become an increasingly important matter given the sharp increase in online communications.
Equity and transparency in the administration of justice is one of the principles on which our legal system is based. Until recently, this transparency was assured by making court decisions public. However, the Internet has changed everything: the natural balance between the open-court principle and the right to privacy—which rested on the "practical obscurity" of paper—has now been upset.
Before the Internet, those who wanted to read a decision had to show up at the registry office in person, identify themselves and ask to see a specific decision. Today, however, we are witnessing open season on personal information posted on the Internet—and court decisions may be vulnerable to all manners of exploitation.
A news article on British Columbia’s new online court records system published last spring clearly illustrates the impact of the Internet on privacy.
This online system allows people to look up any civil or criminal proceeding. Traffic on the site was so high that a virtual line-up was formed. A privacy advocate pointed out that there has never been a line-up at the registry office to access these same files.
The increasingly voracious appetite of certain members of the public for other people’s personal information is motivated, at best, by an unhealthy curiosity, and, at worst, by criminal intentions.
Where refugee status applications are concerned, you are well aware that publishing decisions online can have dire consequences.
Therefore, administrative tribunals that have to render decisions on refugee status applications in democratic states tend not to publish their findings online; we endorse this position.
We have not received any complaints that the Immigration and Refugee Board was publishing the names of the interested parties without their knowledge.
However, we have received many complaints pertaining to administrative and quasi‑judicial tribunals from individuals who were distressed to learn that information about them they thought was confidential could be accessed online by their neighbours, friends and colleagues.
In 2007-2008, we investigated 23 such complaints involving seven federal administrative tribunals. The recommendations we made at the end of our investigation were not equally well received by the parties concerned—some agencies informed us that they did not intend to modify their practices, other agencies modified certain practices, while yet others agreed to implement all of our recommendations.
Our investigation ultimately succeeded in sparking a debate on this issue and led to the reconsideration of publishing information covered by the Privacy Act on government websites.
Our Office is working with its provincial and territorial counterparts to develop guidelines to assist administrative tribunals in striking the right balance between the fundamental “open court”principle and the fundamental right to privacy.
This is an issue of administration of justice that warrants the attention of democratic societies.
When we were in school, we all learned case law by associating cases to names.
Even today, we often hear that using names is necessary when searching for the truth and to respect the “open court” principle.
But do lawyers, or the general public for that matter, really need to know the names of those involved in a case or to read the personal details contained in the decisions published online? The “open court” principle consists of subjecting the institutions to public scrutiny and not the personal lives of individuals who appear before them.
Our Office believes that the public interest in tribunal deliberations does not necessarily extend to information that could identify participants. The open court principle is not called into question when decisions are only made available to the public without identifying information.
The suppression of direct and obvious identifiers is the easiest means to protect privacy. It also poses no threat to either the independence of the tribunals or their decisions.
We preach by example by redacting the findings of our own investigations published on our website, and we continue to endorse this practice.
Using the Act as a shield
Let us return to the theme of this morning’s session: the balance between access to information and the protection of personal information.
Chief Justice Beverley McLachlin was, as always, very eloquent when speaking about this topic earlier in the year.Footnote 1 She stated, and I paraphrase, that it is logically impossible to give precedence to either of these fundamental rights.
On the one hand, we expect that the right to privacy will be broadly interpreted on the basis that it is a right. On the other, as the right to privacy is described as an exception to the right to access government information, it must be interpreted with restraint.
Yet in 2003, the Supreme Court ruled that the Privacy Act and the Access to Information Act must be interpreted as complementary and that neither takes precedence over the other.
The Supreme Court made a decision in a case against the Office of the Information Commissioner of Canada and the RCMP regarding employment information. Are archived files containing information about the appointment, rank and status of RCMP officers considered personal information?
The Supreme Court sided with the Office of the Information Commissioner, ruling that the information in question pertained to the position and not the person.
However, information on an employee’s skills or characteristics is personal information and must remain protected.
In so ruling, the Supreme Court distinguished between information on a government employee, which is accessible to the public, and the employee’s personal information, which must be protected.
This balance between access to information and privacy is further underscored by the third point I will discuss this morning, namely the illegitimate use of the Privacy Act as a shield against disclosure of information to the general public. The purpose of the Act is to protect privacy and not to justify a culture of secrecy.
Consent is a fundamental aspect of privacy, based on an individual’s authority over the disclosure and use of their personal information.
The Act stipulates, however, that under certain circumstances, health or security reasons or other societal interests may justify the disclosure of an individual’s personal information without the individual’s consent.
Paragraph 8(2)(m) of the Privacy Act stipulates that the head of an institution may disclose personal information "for any purpose where, in the opinion of the head of the institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure".
Unfortunately, this provision is not always clearly understood. This explains why laws protecting personal information are sometimes perceived as being an obstacle to the disclosure of information to the media.
Generally speaking, the head of an institution is responsible for determining whether the public interest takes precedence over privacy. However, this provision must not be used as a simple excuse to compromise privacy.
The media and federal departments undoubtedly have differences of opinion regarding the public interest.
Our Office has already been critical of some departments for disclosing personal information in situations where, in our opinion, it was inappropriate to do so.
It comes as no surprise then that public agencies are so cautious in this area. The head of an institution, with whom the final decision rests, must therefore proceed with caution when exercising this privilege.
This provision of the Act must not be perceived as a loophole.
It is not a tool the government may use to disclose information that should remain confidential or to hide its activities that have proved detrimental to the common good.
Rather, it is a tool that confers upon institutions the responsibility to ensure a balance between the right to privacy and the right to access to information.
In light of certain values that are often presented as being in opposition to one another, I have provided an overview of certain issues that, in my opinion, require the integration of these values into a free and democratic society.
Our role as defenders of Canadians’ right to privacy is carried out in large part through mediation and prevention.
We provide advice to the general public, private companies and public federal agencies to help them protect themselves and respect the law.
When we receive complaints, we strive to achieve conciliation between the parties in order to resolve their differences quickly and redress the actual and potential violations of the right to privacy.
And when we are called upon to examine bills or review federal programs to show their impact on privacy, we must continually reconcile values that some believe to be opposites.
In my introductory remarks, I made reference to our now famous investigation into Facebook’s privacy practices. From a legal perspective, this investigation revealed that Canada’s private sector privacy legislation can effectively address technological advances that could not have been foreseen when PIPEDA was drafted.
We cannot say as much for the Privacy Act, which has governed the federal public service since the early 1980s. Our Office has long argued in favour of amending this Act.
We were hopeful that, at the very least, we might succeed in having certain concrete measures adopted and implemented quickly. Last week, we learned that the Minister of Justice had decided not to adopt our recommendations. We are, of course, disappointed by this news.
Nonetheless, we continue to work to protect privacy in Canada with the legislation at our disposal and hope that it will be amended so that we may rise to the challenges posed by technological advances.
Thank you for your warm welcome and for giving me the opportunity to discuss privacy with you and to speak at length about our role and activities.
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