Balancing Transparency, Privacy and Expediency in Administrative Proceedings: Finding the Sweet Spot in a Digital Age
Address given to the Ontario Bar Association
February 4, 2016
Address by Patricia Kosseim
Senior General Counsel and Director General, Legal Services, Policy, Research and Technology Analysis Branch
(Check against delivery)
Thank you for the invitation to join you today and participate in your program on this important and timely subject. You have asked us to address the following question: How Has the Digital Age Changed the Equilibrium?
Given the short time we have to address a very complex and fascinating question, let me begin with “point first”.
Traditionally we have conceived of the open courts principle and the right to privacy as two opposing societal values and spent a lot of ink on how we can achieve the appropriate balance between the two through legal mechanisms such as the “Dagenais/Mentuck” test. The digital age, I believe, changes not only the appropriate point of equilibrium between the two, but more fundamentally, our conception of the underlying values themselves.
While “open courts” is usually understood as synonymous with transparency and an anathema to privacy, I would posit that respect for privacy, within a reasonable measure, is just as critical for upholding the very value open courts are meant to protect: public confidence in the administration of justice, which Chief Justice Beverly McLachlin has referred to as “a cornerstone to the rule of law”.
Justice Rosalie Abella practically said as much in A.B. v. Bragg, where a unanimous Supreme Court of Canada allowed a young teenage victim of sexual cyberbullying to pursue her legal action on an anonymous basis, taking into consideration not only the psychological harm inflicted on the young teenager, but also “the resulting inevitable harm to children (more generally) — and the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure.” In other words, if they lose public confidence in the administration of justice and its ability to respect their privacy particularly in the new digital era, they risk no longer availing themselves of their rights and remedies under the law, undermining the very values the open court principle is intended to protect!
The Internet and practical obscurity
Rapid advances in information technologies have had a dramatic impact on our concepts of access and openness.
Until the Internet came along, the concept of practical obscurity operated in favour of privacy protection and the need-to-know principle. Generally speaking, only people with a particular interest in a matter would go through the trouble to obtain information about it.
In the not-so-distant past, access to court proceedings required some effort — going to the courthouse to watch a proceeding, digging through specialized texts or waiting in line and paying for copies of court documents. Some of us here are old enough to remember trips to musty basement records rooms not so long ago.
Today, it takes much less effort to find court decisions through legal search databases and internet-based search engines. Technological advancements have led to some positive developments in terms of simplifying access to records.
Intrusive snoops and couch potatoes
However, broad online access without due consideration of privacy issues can also be harmful to named individuals — often inadvertently. The Internet has opened up access to online information concerning parties, and even non-parties to proceedings for all sorts of purposes, which greatly exceeds the objectives of the open courts principle. People who are looking for this information online are no longer lawyers and law students looking up legal precedent for the purpose of advancing the law, or legal scholars critically scrutinizing judicial processes to ensure they are just and fair, or media journalists setting out to understand and disseminate selective decisions of broad public interest.
Today, barriers to accessing court and tribunal decisions have been dramatically lowered. Virtually everyone has rapid, pervasive and persistent access to decisions — literally at the tip of their fingers and from the cozy comfort of their couch — for just about any purpose: including salacious curiosity of a neighbor; voyeurism and embarrassment of others; potential discrimination by prospective employers; or even more insidious uses such as fraud, stalking, intimidation, extortion and so forth.
And lest you think this is theoretical fear-mongering, let me give you an example of perverse monetary interests that have opened up a whole new market for commercial third parties to exploit.
Creeping commercial interests
Globe24h is a website operated out of Romania that has taken on the self-proclaimed role of Internet librarian by republishing court and tribunal decisions — including Canadian decisions already published online through legal websites like CanLII. However, unlike CanLII that uses the web’s robot exclusion standard to limit indexing of decisions by name and thereby minimize the privacy impact on individuals, the Globe24h site indexes decisions and makes them searchable by individual name.
We received numerous complaints from individuals who were very concerned that decisions containing sensitive personal information relating to, for example, bankruptcy proceedings, custody matters or labor relations matters, were being made readily accessible through search engines. One complaint was made on behalf of the complainant’s daughter who was named and described as a sex worker in a case in which she had acted as a witness.
As a result of Globe24’s activities, all of these decisions would appear prominently in results for general searches performed on an individual by name. While these decisions were previously made “public” through CanLII, they had been up until then practically obscure. By republishing them, Globe24 rendered these decisions easy to find, even if one wasn’t looking for them specifically or even knew they existed.
While the website’s claim is “to make law accessible for free on the Internet”, our Office found, after an investigation last year, that the website was generating revenue through paid advertisements and charging a fee for individuals who wish to have their personal information removed.
Ultimately, we found that Globe24h’s purposes of making available Canadian court and tribunal decisions by individual name and charging individuals to have the information taken down were not purposes that a reasonable person would consider to be appropriate in the circumstances. While the information may have been publicly available at its source from Canadian legal directories, it had not been made publicly available for the purposes for which Globe24h was using it and the website had not obtained consent from individuals to use it for these different purposes.
We therefore recommended that Globe24h delete from its servers Canadian court and tribunal decisions that contain personal information made searchable by name. Unfortunately, the website refused to implement this recommendation. One of the individuals who brought the complaint to our Office has since initiated an Application in Federal Court against the website.
As we continue to monitor the situation and consider next steps in this matter, including potential litigation options, we have undertaken other practical measures in parallel efforts to minimize potential harm to individuals. We have reached out to major search engines requesting that they voluntarily remove links to the Globe24h website, or otherwise reduce the company’s prominence in search results, and we are gaining some traction in his regard.
While making court decisions more broadly available online in the spirit of “open courts” is certainly a laudable objective, this investigation into Globe24 uncovered new privacy risks that were not even imaginable when the open courts principle was first formulated. It is more important than ever to be “judicious” in selecting what level of detail should be included in court and tribunal decisions to satisfy the important values that underlie the open courts principle without going beyond what is needed. And it’s never been more important than now to adopt technological safeguards to protect online court and tribunal decisions from potential abuse that the principle was never intended to serve.
The federal Privacy Act and its scope of application
While courts are not subject to the Privacy Act, federal administrative tribunals generally are. Section 8 of the Act prohibits federal institutions from disclosing personal information under their control without the consent of the individual to whom it relates, unless a relevant exception applies. For instance, if they have express authority to do so; the information is already publicly available; or, disclosure would be in the public interest.
It is common practice for administrative decision-makers to publish their reasons for decision on the Internet. This practice is sometimes justified as a logical extension of their enabling statute that makes them masters of their own procedures and requires them to hold public hearings and share their decisions with the parties. In some cases, the publication of decisions turns on the quasi-judicial nature and function of the tribunal.
However, the reality is that decisions of administrative and quasi-judicial bodies often contain many more sensitive details that are not as prevalent in higher appellate level courts — including personal details such as home addresses, places and dates of birth, phone numbers, salaries, physical and mental health conditions, social and economic difficulties, detailed descriptions of accidents, disputes with bosses and alleged wrongdoing in the workplace.
Because the legislator has made federal administrative tribunals subject to legal obligations under the federal privacy legislation, they need to circumscribe their transparency obligations accordingly and reconsider their practices in relation to the rapid development of information technologies. An abundance of personal details is often not necessary to render a fair and transparent decision and promote the integrity of the justice system. Some Tribunals have adjusted their practices by adopting policies and technical measures for de-personalising decisions publicly posted on the web, and limiting their searchability through web robot exclusion protocols for example.
All of which goes to show that there need not be an irreconcilable conflict between the open court principle and an administrative tribunal’s obligations under the Privacy Act.
In order to provide guidance to administrative bodies subject to the Privacy Act, our Office issued guidance a few years ago on the “Electronic Disclosure of Personal Information in the Decisions of Administrative Tribunals,” which is available on our website. The guidelines recognize that a number of factors will influence what personal information is disclosed by tribunals, including the wording of their respective enabling legislation.
We recommend that administrative tribunals:
- be transparent about their decision-publication policies;
- inform the parties about the policies and take into account their enabling legislation and any other legislation to which they are subject.
- de-personalize their decisions where appropriate, or draft them with a view to avoiding unnecessary and sensitive personal information that is not essential to an understanding of the decision or the decision-making process; and,
- use web robot exclusion protocols and eliminate the option of public search queries by name.
We are of course mindful of the recent decision of the Federal Court of Appeal in respect of the Canadian Transportation Agency concerning issues relating to the open court principle as it applies to an administrative tribunal and its obligations under the Privacy Act. You will hear more about that case in the course of the afternoon. However, a couple of points about this decision are noteworthy.
First, it is important to remember that this case was not about the online publication of the tribunal’s decisions on the Internet, but rather, about an individual’s request to access an un-redacted copy of documents filed with a tribunal in an adjudicative proceeding.
Second, the Federal Court of Appeal found that the open court principle applies to the Canadian Transport Agency (CTA) in its function as a quasi-judicial tribunal and that its regulations clearly stipulated that the CTA “shall place on its public record any document filed with it in respect of any proceeding”.
Third, the Tribunal’s procedural rules explicitly allowed for the parties to request a confidentiality order, which neither party availed itself of in this case.
The Court ultimately held that the materials the Applicant had requested had been placed on the CTA’s public record as required by its rules and that all of those documents were therefore “publicly available” within the meaning of the Privacy Act. As such, the prohibition on disclosure did not apply and the CTA was ordered to disclose the un-redacted documents.
Notwithstanding the particularities of this decision as it applies to the CTA, our office continues to generally encourage administrative tribunals, each with their different rules, powers and responsibilities, to adopt policies that, while respecting the open court principle and the specificities of their enabling legislation, also respect their privacy obligations under the Privacy Act. We believe that a measured approach, as recommended in our guidelines, is a sound first step.
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