The Open Court Principle and Privacy Legislation in the Digital Age

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Remarks at a Lunch-and-learn session on the de-identification of the decisions of labour tribunals and the protection of privacy in the 21st century organized by the Canadian Bar Association—Quebec Division, Employment and Labour Law Section

September 27, 2011
Montreal, Quebec

Address by Chantal Bernier
Assistant Privacy Commissioner of Canada

(Check against delivery)


Introduction

Thank you for the invitation to attend this session and for the opportunity to speak to you about the balance between the transparency of administrative tribunals and the protection of privacy.

The Office of the Privacy Commissioner has long supported and encouraged transparency in government as a means of ensuring the integrity and accountability of our institutions. However, when many administrative tribunals and quasi-judicial bodies are publishing their decisions in full on the Internet, we believe it is essential to examine the differential impact of the Internet on the traditional concept of transparency and privacy protection.

The issue is the following: how should the principle of judicial transparency be applied in the digital age, and more specifically, how does the Privacy Act circumscribe such transparency as regards the digital publication of the decisions of administrative tribunals?

In my opinion, in order to answer that question, we need to consider the following:

  • the provisions of the Privacy Act circumscribe administrative tribunals’ power of disclosure;
  • the essence of the principle of judicial transparency, or open court, concerns the tribunal, not the parties;
  • the traditional scope of the open court principle was established at a time when access to the court or hearing room could be controlled; and
  • that principle has in a sense been “perverted” by the Internet.

In support of this argument, I will point to the legal distinctions that should be made, in our opinion, in the case of administrative tribunals, underline the challenges that the digital age pose for the practical application of the open court principle, and finally, present our guidelines, which are intended to preserve both judicial transparency and privacy.

To get to the heart of the matter, I would like to present the issue in a tangible way by sharing with you a telling e-mail I received:

“I just received notice that my grievance will be referred to adjudication at the Public Service Labour Relations Board. I am concerned because the grievance involves matters of discrimination and medical information. I am considering abandoning my grievance because I don’t want my personal information posted on the internet. I am really torn because finally resolving this matter at adjudication is very important to me, however, I don’t want my job prospects to be threatened because of the internet publication of my name.”

Obviously, I could not be of any help. I answered that, indeed, the danger was real, and that the decision to continue with the proceedings or not was a personal one. It seems to me that this exchange clearly highlights the differential, and in fact deleterious, impact of the indiscriminate publication of decisions on the Internet. We have created an obstacle to justice.

The difference between an administrative tribunal and a court of law

It is very important to understand the difference between an administrative tribunal and a court of law. Because of the principle of judicial independence, courts of law do not fall under the executive branch of government and are not subject to federal privacy legislation.

That being said, because they have in the past been faced with privacy issues, the courts have set reasonable limits on the principle of judicial transparency. Take, for example, the ban on publishing the identity of victims of sexual assault or various other publication bans based on specific criteria.

As for federal administrative tribunals, they are subject to the Privacy Act, and the Office of the Privacy Commissioner oversees the application of that Act. Sections 7 and 8 of the Act prohibit any federal institution from using or disclosing personal information under its control without the consent of the individual to whom it relates, unless it is in the public interest.

Privacy protection presents a particular challenge as regards the publication of reasons for decisions rendered by federal administrative tribunals. It is common practice for administrative decision-makers to publish their reasons for decision on the Internet. This practice is sometimes justified by an enabling statute that makes them masters of their own procedures and requires them to hold public hearings and share their decisions with the parties. The practice thus seems to be based on the assumption that the rules that apply to proceedings in a court of law also apply to administrative tribunals.

However, because the legislator has decided to make federal administrative tribunals subject to legal obligations under the federal privacy legislation, they must circumscribe their transparency obligations and reconsider their practices in relation to the rapid development of information technologies.

That does not mean that there is an irreconcilable conflict between the open court principle and an administrative tribunal’s obligations under the Privacy Act.

The Act already provides for the balance between transparency and privacy; for example, it allows the disclosure of personal information without the consent of the individual to whom it relates if the public interest clearly outweighs any invasion of privacy.

The open court principle in the digital age

The open court principle, which the Supreme Court of Canada recognized as having a quasi-constitutional status, is a fundamental element of our legal system.

The principle goes far back in the history of common law. In Edmonton Journal v. Alberta, Justice Cory cites Sir John Hawles, a well-known lawyer, who as early as 1685 commented that open proceedings were necessary so "that truth may be discovered in civil as well as criminal matters".

The principle exists to ensure the effectiveness of the evidentiary process, and encourage fair and transparent decision-making. It shows the public that justice is administered fairly and gives them an idea of what judges do.

However, the digital age has changed the rules of the game. Not only have information technologies broadened access to information, but they have also made traditional privacy protection measures obsolete, and they have shifted public focus from the tribunal, which after all is the object of transparency, to the parties, who are not accountable for the judicial or quasi-judicial proceedings.

As Chief Justice Beverley McLachlin puts it, “the omnipresent and immediate reach of modern dissemination networks makes it increasingly apparent that openness [in the courts] may exact costs – costs that require the judges and the media to reassess the means by which they further the principle of open justice.” The Office of the Privacy Commissioner is proposing to reassess the application of the principle of open court as regards privacy.

Over the past ten years, in the name of the open court principle, tribunal decisions have been distributed much more widely over the Internet through the tribunals’ Web sites.

Whereas previously one had to go in person and stand in line to get a copy of a court document, now thanks to data bases such as Quicklaw or CanLII—or even search engines such as Google—one can obtain all the documents produced during legal proceedings.

That being said, the electronic publication of decisions is a very positive innovation, which makes access to justice more democratic.

Nonetheless, unlimited disclosure of personal information on the Internet goes far beyond the objectives underlying the open court principle, namely the accountability of the tribunal, the legitimacy of the process and pubic confidence in the justice system. So rather than turning the light on the institution’s practices, it is turned on the parties, who become the subjects of idle curiosity or even voyeurism and malicious intent.

Let me give you a few examples. Three complaints that we recently investigated illustrate the disproportionate consequences of publishing decisions in full on the Internet:

  • In one case, a woman with a disability had all her personal information, including her address, the amount of her disability pension and the nature of her disability, posted on the Internet. She lives in a disadvantaged neighbourhood in Toronto, and she pointed out that the information posted made her an easy target for thieves.
  • In two other cases, two people who were the subject of workplace arbitration more than 10 years ago were still exclusively associated with the incident by search engines. I checked, and indeed when I entered their names in a search engine, I immediately obtained the full account of their disagreement with their employer. A quasi-judicial decision had become a life sentence.

Publication of decisions on the Web: Administrative tribunal practices

The content of administrative tribunal decisions containing personal information should also be taken into account: they may include a person’s salary, their physical or mental health problems, disputes with their bosses and alleged wrongdoing in the workplace.

Disclosing such information may be in the public interest, but doing so without restriction, as can happen on the Internet, compromises the fair balance between transparency in the procedures of administrative tribunals and the right to privacy provided for in the Privacy Act.

As I mentioned, several complaints filed with the Office of the Privacy Commissioner show that many people are distressed to discover—often with no prior notice—that sensitive information about them can be read on the Internet by neighbours, colleagues, their employees or even a potential employer.

It is understandable that an administrative tribunal with quasi-judicial functions would want to publish a decision containing personal information legitimately needed to justify its decision. And that is precisely the parameter: only information that is legitimately needed to justify the decision should be published.

We have noted that tribunals also publish in their decisions information that is not relevant; for example, the names of children, home address, place and date of birth or social insurance number.

Publishing personal information increases the risk of identity theft, stalking, fraudulent use of clustering or data mining software and discriminatory practices.

And as the e-mail I shared with you shows, this practice can act as a deterrent, since someone wanting to submit their case to an administrative tribunal may not do so for fear of having their personal information permanently available to the public.

I would now like to talk to you about two scenarios that raised issues regarding the disclosure of personal information on the Internet and the application of the open court principle.

  • The first example is the case of a public service employee who was suspected of taking part in improper political activities. The Public Service Commission conducted an internal investigation, found that the employee had indeed behaved improperly and decided to publish a summary of its decision on the Internet. The summary included the employee’s name. The plaintiff applied for a judicial review by the Federal Court, and the Office of the Privacy Commissioner obtained intervener status. In our opinion, the open court principle did not justify publishing the employee’s name, since it was in no way necessary for the application of the principle: the person’s name was not relevant to the integrity of the tribunal, or the fairness of the process or the protection of the public.
  • The second example concerns a complaint filed with the Office of the Privacy Commissioner by an RCMP officer who alleged that the RCMP’s disciplinary tribunal had disclosed personal information concerning him without valid reason. The information was contained in the tribunal’s findings, which were published on an internal Web site but given to a reporter. Following our investigation, we agreed that the RCMP should indeed show the public that disciplinary matters are dealt with quickly and appropriately. However, we did point out that it is possible to meet that obligation without publishing findings that identify individuals.

The Office of the Privacy Commissioner concluded that the RCMP should de-identify the findings of its disciplinary hearings before making them public—unless the public interest requires otherwise.

In many cases, tribunals are able to comply with privacy legislation without compromising their objectives of transparency and accountability.

The central issue is this: do the objectives of the open court principle, namely the integrity of the tribunal and the protection of the public, require the publication of the parties’ names, and if so, what personal information do they justify being published?

Recommendations of the Office of the Privacy Commissioner for the de-identification of decisions

During the course of our investigations, we have made a number of recommendations that are set forth in the guidance document entitled “Electronic Disclosure of Personal Information in the Decisions of Administrative Tribunals,” which is available on our website. Those guidelines were developed in cooperation with our provincial counterparts, including our Quebec colleagues.

  • We advise administrative tribunals to be transparent about their decision-publication policies.
  • We advise them to inform the parties about the policies and to take into account their enabling legislation and any other legislation to which they are subject.
  • We strongly suggest that reasons for decisions should be de-identified or drafted with a view to eliminating the inclusion of unnecessary and sensitive personal information that is not essential to an understanding of the decision or the decision-making process.
  • Finally, we recommend using web robot exclusion protocols and eliminating the option of public search queries by name. I should add, however, that this does not guarantee protection.

Not everyone received our recommendations with equal enthusiasm—some tribunals said they did not intend to change their practices; others changed some; and still others agreed to implement all our recommendations.

In fact, as we discovered during our investigation, administrative and quasi-judicial decision-makers do not all interpret the limits on disclosing personal information on the Internet imposed by the Act in the same way. For example, hearings of the Immigration and Refugee Board are usually held in camera to protect the safety of the applicants. Decisions are de-identified and published selectively.

Conversely, the Public Service Labour Relations Board publishes its decisions online with the full names of the parties concerned. Many administrative tribunals’ decisions contain the full names of the parties.

The practices of some tribunals set them apart. The Military Complaints Commission usually publishes only a summary of their decisions. The summaries of decisions of the Canadian Forces Grievance Board and the summaries of the decisions of the RCMP External Review Committee do not contain the names of complainants.

Quebec is more progressive. The Société québécoise d’information juridique (SOQUIJ), a publisher of legal information, receives the full text of more than 30,000 decisions of administrative tribunals and other bodies annually and de-identifies nearly 5,800 decisions. The SOQUIJ also checks the de-identification done by the tribunals themselves of more than 6,600 decisions. The publication of the vast majority of decisions rendered is subject to procedures designed to protect personal information. And yet the essence of the open court principle is preserved.

Except in Quebec, then, de-identification is not yet widely enough practised. Since the public interest criterion is the key to the legitimacy of disclosure, I would like to examine it as my last point.

The public interest criterion

The Act stipulates that a federal administrative tribunal may disclose personal information without the consent of the person concerned if, in the opinion of the head of the institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result. We have drawn up a list of factors to help apply this criterion. A few are:

  • the sensitivity of the information;
  • the accuracy and level of detail of the personal information;
  • the context in which the personal information was collected;
  • the specific public policy objectives and mandate of the tribunal;
  • the expectations of affected individuals;
  • the possibility that an individual to whom the information relates may be unfairly exposed to monetary, reputational or other harm.

In some cases, it is in the public interest to know the identity of the individuals involved in the arbitration: the Act was not designed to hide wrongdoing, or to protect fraudsters or anyone who absconds with public funds or represents a danger to their fellow citizens. Let me refer to another complaint we received where the complainant was questioning the publication by a labour tribunal of a decision concerning them. Once again, I did the check. I typed the complainant’s name and it came up first on the list. I read the full decision, and I praised the day that brought us the Internet, a tool par excellence for protecting us from undesirables.

Conclusion

In my opinion, the indiscriminate publication of administrative tribunal decisions on the Web is a betrayal of the principle of judicial transparency achieved through the use of the Internet:

  • it is not the tribunal that is thus held accountable, but the parties concerned;
  • the Internet is so far-reaching that the injury to the reputation of the parties goes far beyond what was intended when the principle of judicial transparency was formulated;
  • such disclosure, which escapes the control of both the tribunal and the parties, constitutes an obstacle to justice.

Given the significant advances in technology, the Office of the Privacy Commissioner is ever more vigilant about privacy online and keeps a close eye on the practices of administrative tribunals.

We must look at the open court principle from a different angle, in order, as Chief Justice McLachlin suggests, to reassess the means by which we further the principle of open justice so as to preserve its essence while protecting privacy. There is no reason that privacy and the open court principle cannot coexist.

I do not want to confuse the issue, but I would simply like to refer you to the discussions in the Council of Europe on the “right to forget.” The permanence and reach of data posted on the Internet is not a uniquely Canadian phenomenon, of course, and the Office of the Privacy Commissioner is following the discussions on this further legal development in the protection of privacy in the digital age.

We all face the same challenge of modernizing the application of the open court principle to preserve its essence.

Thank you.

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