Balancing Privacy and Transparency in Administrative Tribunal Proceedings in the Digital Age

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Remarks at the First Forum on Court Technology
Panel Discussion on the Ethical Implications of Technologies organized by The Canadian Centre for Court Technology

September 22, 2010
Ottawa, Ontario

Chantal Bernier
Assistant Privacy Commissioner of Canada

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Introduction

I want to pay tribute to the Canadian Centre for Court Technology for shining a spotlight on an increasingly pressing issue – and that is the challenge of protecting privacy in the context of open justice, particularly in this era of rapidly evolving technologies.

Context

I will narrow my comments to the application of privacy and transparency in the digital age because, I believe, the digital age completely redefines the balance between privacy and transparency.

A few years ago, Justice Morris Fish of the Supreme Court of Canada observed that “[t]he administration of justice thrives on exposure to light and withers under a cloud of secrecy.”  Not only is he eloquent, he nails, in that sentence the raison d’être of transparency of tribunals: accountability of the justice process.  Hence, the light is turned on the court, not the parties.  The reason for the open court principle is to keep the justice system honest: unbiased, compliant with the law and fair. 

The differential impact of transparency in the digital age is a distortion of the open court principle by turning the light on the parties.  And this Justice Beverley McLachlin urges, must give us pause.  She says:

“[T]he omnipresent and immediate reach of modern dissemination networks makes it increasingly apparent that openness [in the courts] may exact costs – costs that require judges and the media to reassess the means by which they further the principle of open justice.

The purpose of my presentation today is to put to you means to further the principles of open justice and privacy in the digital age.

The differential impact of the Internet

We all know that with the Internet the information flows, faster than ever, more broadly than ever and it can create a record that is permanent, and beyond the control of the original author.  In relation to the tribunals, this means an exposure well beyond what was originally envisaged in the open court principle, both in scope and nature and the major impact is to privacy.

Administrative tribunals vs. courts

Before exploring these questions further, I want to emphasize that my comments will relate strictly to administrative tribunals and other quasi-judicial bodies. Such bodies fall under the jurisdiction of the Privacy Act – and, therefore, the authority of our Office.

It is useful to remind ourselves, before going into the principles at hand, the nature of the administrative justice.  For one thing, the matters considered by tribunals are administrative meaning that they apply to one individual’s entitlement under an Act of regulation, such as one person’s entitlement to government benefits, or an individual’s peculiar workplace dispute. By their very nature, a great deal of highly personal and sensitive information tends to come up – information about a person’s salary, for instance, physical or mental health problems, or disputes with colleagues and bosses.

The point is that the scope of administrative tribunals decisions, while often revealing highly sensitive personal information and ruling on crucial matters to the parties usually have implications that are limited to the parties.

It follows from that, in our view, the balance between privacy and the open court principle takes a particular angle in the context of administrative tribunals and is clearly tilted towards privacy in the context of the digital age.  The issue comes to a head in relation to online posting of decisions.

Online posting of decisions

Subject to the Privacy Act, tribunals are authorized to decide what – if any – personal information may be included in their decisions, and how – if at all – those decisions should be published.

Some post everything on the Internet, or something less. That could mean redacted, anonymized or depersonalized versions, summaries – or, indeed, nothing at all.

Immigration and Refugee Board hearings on refugee claims, for example, are usually held in private because there are real issues around the safety of applicants. The Public Service Labour Relations Board, on the other hand, posts decisions online with full names.

In recent years our Office has investigated a couple of dozen complaints about tribunals posting personal information online, often with no prior notice.

Just last summer, two individuals contacted us to say that a Google search of their names brings up an administrative tribunal decision relating to them with decisive impact on their career.

In another case, the individual’s concern was personal safety.  A Toronto woman appeal issue related to her disability pension. She was distressed when her name, address and the specifics of her disability were posted online – doubly so because she felt the disclosure made her vulnerable in her somewhat down-market neighbourhood.

In another situation that has come to the attention of my Office, a woman discovered to her consternation that a decision in a workplace dispute was posted online. The woman claims that, even now – more than eight years since the case was decided – the ready availability of this information continues to hamper her ability to land another job.

In this case, it is true that the institution did apply technology under which a Google search turns up a largely depersonalized summary of the decision. However, with just one click of the mouse, that page still links to the full decision, with names.

The woman has told us she would not have pursued her action had she known of these lingering after-effects. This underscores our view that the risk of having personal details made public on Internet could make people reticent to assert their rights through administrative proceedings.

While passive, this is still a restriction on access to justice – a consequence that runs counter to the objective this forum seeks to achieve and to the values the open court principle was meant to protect.

Other disclosures

Apart from the consequences of posting tribunal decisions on the Internet, technology has other impacts on the privacy of participants in proceedings.

Until fairly recently, openness in the justice system was constrained by the “practical obscurity of paper.” Typewriters, carbon paper, rotary-dial telephones and the requirement to visit the courthouse archives all served to curb the flow of information.

But, now that everything has gone digital, disclosure and dissemination are often too easy to resist.

A case we will report on more fully in our next annual report to Parliament involved a public servant who felt he had been unfairly treated in a reclassification exercise. As the matter wound through various grievance procedures, the man’s file thickened with personal details, including reports on his mental health.

At some point, somebody figured that every other public servant involved in the reclassification – 729 - was entitled to every last snippet of the file, personal or not. Easy enough to flip them the entire file by e-mail.

The deemed parties to the case were all of the man’s former co-workers.  None of them had a particular interest in the proceedings and many, in fact, denounced this egregious notation of privacy in receiving their colleague’s highly personal information

You can read more about this disclosure in our annual report, including what we found in our investigation.

Disclosure arguments

In the course of our many investigations, tribunals have tried a raft of arguments to justify their disclosures of personal information.

Some cited Section 8(2)(a) of the Privacy Act, which states 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.

In our view, a tribunal collects personal information in order to render a decision on a specific matter before it. Disclosing personal information – indeed, broadcasting it across cyberspace – may not be consistent with that purpose.

Some tribunals cited section 8(2)(b) as a rationale for the publication of personal information. That section authorizes disclosure in accordance with any other law or regulation – notably the tribunal’s own enabling legislation.

My Office takes the view that disclosure must be explicitly authorized in the law or regulation. It is not enough if the disclosure is merely not prohibited, or that the statute is silent on the matter.

Another commonly cited section is 69(2) of the Privacy Act, which permits the use and disclosure of information that is “publicly available.”

We take the view that personal information that comes up during tribunal proceedings may be accessible, but that does not necessarily mean it ought to be publicly available for the purposes of section 69(2). Until it is posted.  It is therefore tautological to argue that online posting creates its own exception to the principles of privacy.

Public interest served

I want to emphasize at this juncture that the Privacy Act is not an instrument to conceal wrongdoing. It was never intended to shield people who commit fraud, pilfer the public purse, or pose a danger to their fellow citizens.

Where there is a compelling public interest in the disclosure of identifying information, a tribunal may exercise discretion under the Act’s public-interest disclosure provision, section 8(2)(m)(i).

The section, however, has a high threshold and is justified only in exceptional circumstances. As first set out in the Supreme Court’s “Oakes test,” a privacy incursion must be:

  • necessary and justifiable in a free and democratic society;
  • proportionate to the identified need;
  • demonstrably effective in meeting the need and,
  • the least privacy-invasive of all available alternatives.

One less impairing alternative is to use random initials instead of names in posting a decision. Even if identifying personal information is withheld, interested parties and the public at large can read the online decisions and draw lessons from them.

In our view, the public can be informed about administrative proceedings, even in the absence of extraneous personal information.

OPC guidelines

Following our investigations, some tribunals agreed to depersonalize their published decisions, leaving only the information relevant to their decisions.

Others, however, continue to post whole decisions, including extensive amounts of personal information.

We are not empowered under the Privacy Act to bring this matter before the courts for further guidance, so privacy protections remain inconsistent across these institutions.

We are, however, continuing to talk with administrative tribunals to explore ways to strengthen privacy safeguards.

We also worked with provincial partners to develop guidelines on the online posting of tribunal decisions.

Those guidelines, which we made public earlier this year, encourage tribunals to be transparent about the specific statutes, regulations and policies that govern the handling of personal information – before and during the proceedings, and in the decisions that emerge.

Tribunals should advise parties of steps they can take to identify and protect personal information in advance of a public hearing. For example, there is usually no reason for people to include personal identifiers such as social security numbers in their submissions.

All this helps manage the parties’ expectations and allows them to make informed choices.

Where there is discretion as to whether decisions posted online will contain personal information, we urge tribunals to develop an explicit policy to guide them in each case.

If a tribunal believes there are reasons to include personal identifiers in its reasons, we suggest it edit from the public posting all data elements that are not relevant to the decision itself. I am referring here to addresses, dates of birth, the names of family members, ID numbers, and workplace locations.

As a best practice, we encourage tribunals to consider whether de-identified or anonymized versions of the decision could be viable alternatives to full disclosure.

And finally, the guidelines recommend that, where names do have to appear online, tribunals use web robot exclusion protocols, so that a routine Google-style search by name will not necessarily return the decision.

Conclusion

In summary, I think we can agree that transparency in the judicial process is of paramount importance in our democratic society. The open-courts principle also applies to administrative tribunals and other quasi-judicial bodies, because the public has a compelling interest in knowing that these bodies are functioning in a fair, accountable and just manner.

That principle is strongly entrenched. As such it is not imperilled simply because we ask that institutions also weigh an interest in privacy.

What we ask is that tribunals further the open court principle, to use Justice McLachlin’s words, taking into account the differential impact of online posting.

Indeed, there are ways to achieve transparency while avoiding or minimizing unwarranted harm to the privacy of individuals.

Unwarranted in the sense that participants in administrative hearings may have done nothing more blameworthy than to try to straighten out an employment quarrel, or obtain a government benefit.

The Privacy Act affords people a means to go about their business before these institutions in a way that safeguards their right to privacy, even as it serves the public’s interest in judicial transparency.

We believe that our guidelines present the openness of the adjudicative process but minimize the exposure of the parties to what is strictly within public interest, bringing transparency to exactly what is the object of the open court principle is a nuanced, sensible and balanced approach that is fair to all.

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