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The Investigator's Legal Handbook
by Gordon Scott Campbell

 


Le manuel juridique de l’enquêteur
par Gordon Scott Campbell

 

REGQUEST: Regulatory Offences and Compliance Newsletter (Carswell), 12 issues per year
Co-Editor Gordon Scott Campbell

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TEN THINGS YOU NEED TO KNOW ABOUT PRIVACY, INFORMATION ACCESS AND SECURITY LAW IN CANADA

1. Knowledge and consent of the individual are the key legal principles governing the collection, use or disclosure of personal information. Federal law requires that organizations must identify the purpose of the personal information collection before or when it is collected. The individual it is collected from must consent to any subsequent new purpose in order for it to be used in a new way

2. The essential feature of federal privacy law is the definition of “personal information.” Generally speaking it is only personal information that is protected, but the law uses a very broad definition for what information qualifies as personal: information about an identifiable individual that is recorded in any form. This definition can even include business information. The only exception to the definition is for the name, title, business address and telephone number of employees of organizations covered by the privacy law.

3. In 2004 the Personal Information Protection and Electronic Documents Act imposed on all private businesses and other organizations that collect, use or disclose personal information in the course of doing business extensive privacy protection requirements similar to those already binding the federal government through the Privacy Act. The only type of information clearly exempted is that used for journalistic, artistic or literary purposes.
           
4. Under the Personal Information Protection and Electronic Documents Act, an organization can only collect, use or disclose personal information for purposes that a reasonable person would consider are appropriate in the circumstances. Organizations must also designate someone as responsible for compliance with the National Standards on Protection of Personal Information. Individuals generally have a right of access to their personal information held by organizations, a right to challenge the accuracy of the information, and a right to have it amended. Organizations must put in place procedures for submission and response to complaints about their handling of personal information. This complaint procedure should be easily accessible and simple to use. Organizations must also develop guidelines and implement procedures on the destruction of personal information where it is no longer required to fulfill its originally identified purpose.

5. When you are seeking to access rather than protect information under federal law, the way you draft your request under the Access to Information Act is very important. The Act gives any citizen or permanent resident a right to access any record under the control of a government institution. All requests for access to records must be made in writing to the government institution that has control of the records and must provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the records. You should also be aware that while the initial  application fee is very modest, the Act specifies that any government search or preparation for release work time beyond five hours may be charged to the requestor, and in addition the requestor may be charged a copy fee for each page of information provided – these fees can really add up for broad or obscure requests.

6. Remedies are available should you not be satisfied with a response to a federal access to information request or the way an organization is treating personal information. You must first file a complaint with either the Privacy or Information Commissioners, depending on whether it is a privacy or access issue. Should the Commissioner be unable or unwilling to resolve your complaint, the next step is to bring an application in the Federal Court, from which you could in turn seek to appeal to the Federal Court of Appeal and the Supreme Court of Canada should you still not be satisfied with the result. The Federal Court may make a binding order and even award damages against an organization or government in privacy and access to information disputes.

7. In investigating complaints or conducting audits, the federal Privacy and Information Commissioners have wide ranging powers of entering premises to examine and take copies of records as well as compelling people to give oral or written evidence under oath and produce records. Anyone refusing to comply with an order of either Commissioner will be committing an offence and may be subject to fines and/or imprisonment.

8. A number of Canadian provinces have access to information and privacy laws that are similar to the federal laws. But these laws are not uniform across Canada, so you must look at the laws governing the specific province where you live, or where the information is gathered or held.

9. National laws do govern the Internet. So long as the computers where information resides, the cables or satellite ground stations through which information travels, or the people who create, maintain or facilitate the transport of the information live in nations that have laws, those laws will apply in some form or other to the Internet’s information. It is therefore vital to consider the worst case scenario of which laws may apply to you, and thus where you should be located, prior to undertaking potentially controversial information endeavours. Claiming that you are right and the government is wrong will be of cold-comfort to you once your equipment has been seized, you have been charged with criminal offences, and – regardless of how things ultimately turn out – you are out of business.

10. All laws on access to information and privacy protection are subject to exceptions. Knowing how to interpret and utilize the exceptions is crucial to successfully gaining or protecting information.

 

This material is for information purposes only, is not advice, and since the law is constantly evolving its accuracy cannot be guaranteed. It may be freely distributed for non-commercial purposes provided you acknowledge the source and copyright.

© 2012 Gordon Scott Campbell, Barrister & Solicitor
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