The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Tuesday, June 27, 2006
Anne Cavoukian has tabled her annual report for 2005 in the Ontario Provincial Parliament. I haven't had a chance to review it in detail, but it appears to be full of interesting information.
Here is the media release:
IPC - Government spending must be open to the public: Commissioner Cavoukian says greater transparency needed:
NEWS RELEASE : June 27, 2006
Government spending must be open to the public: Commissioner Cavoukian says greater transparency needed
While considerable gains have been made, government organizations nonetheless continue to use the Freedom of Information and Protection of Privacy Act as a shield to block the release of consultants’ contracts and the financial arrangements made with suppliers of goods and services, said Information and Privacy Commissioner Ann Cavoukian.
Since early 2005, the IPC has overturned 11 decisions made by provincial or municipal organizations that refused to disclose this type of information. The requesters seeking the information had to appeal those decisions to my office to obtain the desired records, said Commissioner Cavoukian. Other requesters may have just given up, not bothering to file an appeal. “This is a complete waste of the time and resources of all parties involved,” said the Commissioner, who is urging municipal and provincial government organizations in Ontario to make a concerted effort towards ensuring that the public has full access to government spending records.
In her 2005 annual report, which she released today, Commissioner Cavoukian is asking every government office planning to hire a consultant, contractor, or service provider to immediately make it clear to them that the information they submit will most likely be made available to the public. “The default position should be that financial and all other pertinent information related to a contract will be made publicly available,” said Commissioner Cavoukian. Only in exceptional circumstances will withholding the financial terms of government contracts be justified on the basis of prejudice to one’s competitive position or privacy.
“The right of citizens to access government-held information is essential in order to hold elected and appointed officials accountable to the people they serve,” said the Commissioner. “This is particularly true for details of government expenditures and the public’s right to scrutinize how tax dollars are being spent. When government organizations use the services of individuals or companies in the private sector, the public should not lose its right to access this information.”
The need for transparency and accountability for government spending goes beyond contractual arrangements. In Order MO-1947, the Commissioner ordered the disclosure of information relating to lawsuits settled by the City of Toronto with third parties, including the number of lawsuits, dates settled and dollar amounts. The Commissioner again emphasized the importance of the disclosure of this type of information based on the taxpayers’ right to know and the need to hold both politicians and bureaucrats accountable for their actions.
In her wide-ranging 84-page annual report, Commissioner Cavoukian identifies and addresses seven other key issues. Among these, the Commissioner:
- dispells some of the common misconceptions about radio frequency identification (RFID) and addresses when privacy issues need to be considered. “ Users of RFID technologies and information systems should address the privacy and security issues early in the design stage, with a particular emphasis on data minimization,” said the Commissioner. “This means that wherever possible, efforts should be made to minimize the identifiability, observability and linkability of RFID data.” (Further to this issue, the Commissioner released new RFID Privacy Guidelines just last week. Here is a direct link to the Guidelines on the IPC’s website: www.ipc.on.ca/docs/rfidgdlines.pdf.);
- outlines a highly successful collaboration between the Ontario College of Pharmacists, the Ontario Pharmacists’ Association and the IPC. Within days of a controversy erupting in the media over the screening of womenattempting to access the emergency contraceptive pill, commonly known as Plan B, the Ontario College of Pharmacists, after working with the Commissioner and the Association, issued new guidelines for pharmacists operating in Ontario;
- examines the issue of the secure destructionof personal information, emphasizing that such information “must be permanently destroyed or erased in an irreversible manner that ensures the record cannot be reconstructed in any way, as reflected in the IPC Fact Sheet issued on secure destruction;”
- advises that the IPC is closely watching the steps being taken towards the development of an interoperable electronic health record (EHR) system in Ontario. “Governance is a key issue in the implementation of an interoperable E HR,” said Commissioner Cavoukian. “One of the questions that needs to be addressed is how will accountability for patient privacy and information security be established in the context of a record that may eventually be shared throughout the entire health care system;”
- stresses that privacy should not be used as a shield to minimize disclosure of essential information in emergency situations. “While access and privacy laws underline the importance of protecting the privacy of individuals, they also recognize that, in certain circumstances, privacy should not be an impediment to the sharing of vital – and, in some cases, life-saving – information, even in the absence of consent,” says the Commissioner;
- addresses the issue of fingerprints, photos and other personal information of people who were charged with a crime, but never convicted, being kept by police. “Many people assume that when charges are dropped, stayed, withdrawn, or a finding of ‘not guilty’ is made, the name of the accused person is automatically cleared,” said the Commissioner. “However, while these and other non-conviction dispositions may leave a person without a criminal record, police services in Ontario retain most police records in perpetuity, even where a person is found not guilty by the courts. A fair expungement process must take into account both the legitimate interest of law enforcement and the fundamental rights of innocent citizens;” and
- emphasizes the importance of building a culture of openness and transparency in all provincial and municipal government organizations. “Leadership on openness and transparency must come from the top,” said the Commissioner. “Public servants are more apt to disclose information without claiming inapplicable exemptions if they feel that their decisions will be supported by both the politicians and senior executives who lead their ministry, agency, board, commission or local government.”
The annual report also includes a detailed review of the impact of the Personal Health Information Protection Act (PHIPA) – Ontario’s first new privacy law in nearly 14 years – during its first full year.
Provincial ministries were praised by the Commissioner for a dramatic improvement in their 30-day-response compliance rate. Overall, ministries achieved an 80.1 per cent compliance rate – a significant increase from 68.7 per cent in 2004 and the highest provincial compliance rate in 17 years.
Elsewhere, the annual report includes statistical analysis of requests for information filed across Ontario in 2005 under FOI and PHIPA (34,957, the highest number ever), appeals to the IPC regarding some of the decisions government organizations made in response to FOI requests, and privacy complaints filed to the IPC under the provincial and municipal Freedom of Information and Protection of Privacy Acts, or under PHIPA.
Key IPC orders and privacy investigations are profiled, decisions rendered by the courts regarding Ontario access cases are cited, IPC educational efforts outlined, and information about the 25 publications the IPC issued in 2005 provided.
The Information and Privacy Commissioner is appointed by and reports to the Ontario Legislative Assembly, and is independent of the government of the day. The Commissioner's mandate includes overseeing the access and privacy provisions of the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act, as well as the Personal Health Information Protection Act, and helping to educate the public about access and privacy issues.
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