Balancing Transparency and Privacy in the Age of Google

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Remarks at the Advanced Administrative Law Conference

October 28, 2009
Ottawa, Ontario

Chantal Bernier
Assistant Privacy Commissioner of Canada

(Check against delivery)


Good morning. I very much appreciate the chance to exchange ideas with you about the central issue this panel is exploring: How to strike the right balance between two very important values: “open courts” and individual privacy rights.

I am well aware that our Office’s position on the online publishing of personal information has not been warmly received by some administrative tribunals.

However, it seems to me that there is a way forward that is respectful of both the open court principle and individual privacy.

I want to emphasize at the outset that I am speaking today only about the online posting of decisions made by administrative and quasi-judicial bodies, not the courts. The courts are doing their own interesting work on the protection of privacy in the online context. They are not covered by the federal Privacy Act and different legal and policy considerations may apply.

I want to make this crystal clear because last year the Toronto Star ran a story claiming that the Privacy Commissioner of Canada wanted to protect the privacy of the likes of serial killer Paul Bernardo. The assertion came as quite a surprise to Commissioner Stoddart. I can assure you, this is not the case.

But our Office is thinking of the privacy rights of ordinary, law-abiding people who happen – often through no fault of their own – to wind up before an administrative tribunal.

Overview

It has long been a central tenet of our legal system that justice be administered in a fair and open manner. Until recently, that openness was limited by what has been called the “practical obscurity” of paper.

Many of us here remember the days when we had to trek down into the dusty courthouse basements in order to dig up records. One actually gave some thought about whether a particular document was really necessary.

We have now moved from paper to digital posting via the Internet. With nothing more than a few keystrokes, records are instantly available.

You may have heard about what happened when B.C. launched an online court records system which permits searches for information about civil and criminal proceedings involving anyone – even those facing a speeding or parking ticket. In its early days, the system was so popular that it became difficult to get access because of the enormous volume of online traffic. In other words, there was a digital line-up.

As one B.C. privacy advocate wryly noted, no court registry office has ever seen an around-the-block queue to gain access to such information!

Indeed, the olden-days limitations imposed by paper-based records made it too much trouble to sort through such records before. With online access, you can be both intrusive snoop and lazy couch potato!

Our fear is that some of the interest is for less-than-noble ends – to satisfy prurient curiosity; to dig up dirt on enemies; to explore the potential of this online source for commercial exploitation and perhaps even to commit identity theft.

In recent years, we have seen many administrative tribunals begin to post decisions often containing very sensitive personal information. The consequences for privacy have been significant – and often not positive.

In most cases, I don’t believe it’s appropriate or helpful to have the personal details of people who come before administrative tribunals available to anyone in the world at the touch of a computer key.

It’s also the law. The Privacy Act applies to many administrative tribunals and quasi-judicial bodies. Through the Act, Parliament made a decision to impose specific rules on these bodies about their handling of personal information.

Similar controls have been imposed by many provincial legislatures and territorial councils on tribunals in those jurisdictions.

OPC Investigations

As you may know, our Office has been engaged in this issue for the last few years.

Last year, we completed an investigation into 23 complaints about the disclosure of personal information on the Internet by seven bodies created by Parliament to adjudicate disputes. We have received several additional complaints since then and launched further investigations.

The administrative and quasi-judicial bodies we have received complaints about consider issues such as the denial of pension and employment insurance benefits, compliance with employment and other professional standards, allegations of regulatory violations and irregularities in federal public service hiring processes.

Their decisions often contain personal details that not many people would be comfortable sharing widely: salaries, physical and mental health problems, detailed descriptions of disputes with bosses and alleged wrongdoing in the workplace.

Other information of questionable relevance is also often included –the names of participants’ children, home addresses, places and dates of birth and descriptions of criminal convictions for which a pardon has been granted.

Many complainants told us they were distressed to discover – often with no prior notice – that personal information about them was available on the Internet for neighbours, colleagues and prospective employees to see.

A long-ago transgression or temporary lapse in judgment could continue to haunt an individual for years and years. Even if no past transgression was involved, the nature of the personal information that was being disclosed could be deeply embarrassing.

Many complainants who came to our Office for help were clearly shocked, and, in some cases, devastated, to discover that the details of their personal lives were online for all to see. There are also other potential negative outcomes – such as the information being used to carry out identity theft.

The risk of having personal details made public may make people reticent to assert their rights in administrative and quasi-judicial proceedings. Access to justice could suffer.

And why should a law-abiding citizen fighting for a government benefit be forced to expose the intimate details of her personal life to public scrutiny?

“Open Court” Principle

Many of the institutions we investigated argued that the “open court” principle required the online publication of decisions.

Yes, the open court principle is an important part of our legal system. It exists to ensure the effectiveness of the evidentiary process, to encourage fair and transparent decision-making.

We understand and respect the need for transparency in decision-making processes and the need for tribunals to educate people about their work and their issues.

But remember: The open court principle is intended to subject government institutions to public scrutiny, and not the lives of the individuals who appear before them.

As well, through the Privacy Act, Parliament has set express limits on the extent to which the open court principle authorizes the publication of federal administrative tribunals.

The Privacy Act says that personal information under the control of a government institution may be disclosed for the purpose for which it was obtained or compiled, or for a use consistent with that purpose.

We concluded that blanket electronic disclosure of personal information contained in tribunal reasons for decision is not the purpose for which the information was obtained. Rather, tribunals collect personal information in order to make a decision based on the specific facts of a case.

The public interest in accessing information about tribunals’ proceedings does not obviously or necessarily extend to obtaining access to identifying information about individual participants.

Most of the time, posting de-personalized decisions by replacing names with random initials does not interfere with the open court principle.

I certainly do not debate the need for public access to information about tribunal proceedings. This maintains confidence in their integrity; enhances the evidentiary process; promotes accountability and furthers public education.

But you can do all that without disclosing the identities of the people appearing before tribunals. You don’t need to know participants’ names to fully and transparently debate the facts and issues of a particular case

It is also important to note that, in those cases where there is a genuine and compelling public interest in disclosure of identifying information that clearly outweighs the resulting privacy invasion, institutions do have the discretion under the Privacy Act to disclose such information.

This could include, for example, cases where the public has a compelling interest in knowing the identity of an individual found guilty in disciplinary proceedings, or of someone who poses a potential danger to society.

There is flexibility under the legislation. Again, this allows for a reasonable approach where privacy issues are considered and good judgment is exercised.

Recommendations

In the well-founded complaints we investigated, our Office made a number of recommendations to government institutions.

First, that they reasonably depersonalize future decisions posted online by using randomly assigned initials in place of individuals’ names – or post only a summary of the decision with no identifying personal information.

We also asked tribunals to observe suggested guidelines respecting the exercise of discretion to disclose personal information in any case where they propose to disclose personal information in decisions on the Internet.

In terms of the decisions related to the complaints we received, we recommended that they be removed from the Internet until they can be depersonalized.

Restrict the indexing by name of past decisions by global search engines through the use of an appropriate “web robot exclusion protocol;” or remove from or reasonably depersonalize all past decisions on the Internet through the use of randomly assigned initials, within a reasonable amount of time.

Response and Next Steps

Despite the recommendations stemming from our investigations, some government institutions have told our Office that they plan to continue posting sensitive personal information as they always have.

Others took important but incomplete steps towards improved compliance with the Privacy Act. For example, as a result of our investigations, some institutions implemented technical measures to prevent the names of individuals who participate in their decision-making processes from creating “search hits” when typed into major search engines. Others have agreed to use initials in place of individuals’ names.

Our Office is not empowered under the Privacy Act to bring this matter before the courts for further guidance.

However, we are continuing to work in other ways to address this important privacy concern.

For example, we have raised the issue with our provincial and territorial counterparts. All of us have agreed to offer guidance to help administrative tribunals strike a balance between open online access to decisions and adequate protection for sensitive personal information.

At a recent federal-provincial and territorial conference, we reviewed a draft “frequently asked questions” document. We are consulting with administrative tribunals to ensure that it addresses their needs.

The document discusses the importance of transparency – more specifically the need for tribunals to inform people about their practices regarding the publication of personal information online and in reasons for decision.

It also discusses at length the issues that tribunals should consider when seeking to balance privacy and openness.

For example, tribunals should assess the extent to which their enabling legislation indicates decisions should be made available to the public at large.

Tribunals should also determine whether any legislation – the Privacy Act, for example – would prohibit or limit the public disclosure of the personal information of parties and witnesses.

And if disclosure is permitted, consider whether the disclosure of personal information is necessary or appropriate.

The public interest in disclosure of the identities of participants should be considered and identified in each case. There may be a public interest in protecting the public from fraud, physical harm or professional misconduct, or perhaps in promoting deterrence.

If you do find a compelling public interest, a number of issues need to be weighed, for example: the sensitivity of the personal information, the expectations of the person who may be affected; the possibility that personal may be unfairly exposed to monetary or reputational harms.

The Q and A document also offers some guidance on how tribunals can limit disclosure to what is necessary. For example, identities can be masked through initials or pseudonyms.

Decision-makers can ensure their written decisions do not include sensitive personal information which is not essential to understanding the decision-making process. Tribunals can also encourage parties not to include immaterial personal information – social insurance numbers, for example – in their submissions.

Finally, tribunals can use technological tools to reduce privacy risks. You can consider using web robot exclusion protocols and eliminating the option of public search queries by name.

The Office of the Information Commissioner of Canada has agreed to lead the consultations on this guidance with federal administrative tribunals.

Meanwhile, we have also raised our concerns with Treasury Board Secretariat.

They are planning to consult with the Department of Justice, the Information Commissioner’s Office and our Office in the near future on the best approach to providing advice on the online posting of personal information, not just to administrative tribunals, but the all of the more than 250 federal institutions covered by the Privacy Act.

Conclusion

I don’t claim that the balance between openness and privacy will always be perfect or easy to attain.

However, we remain very uncomfortable with any interpretation of the open court principle that equates it to open season on the personal information placed before tribunals and other quasi-judicial bodies in the age of Google.

There are many very reasonable steps that administrative tribunals can take to ensure transparency as well as the protection of the privacy rights of the people who come before them. 

We hope that a constructive dialogue will lead to the better protection of Canadians’ privacy.

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