eCaseNote 2007 No. 06

Protecting Privacy From the Long Arm of the Law

Re: S.C., 2004 ONCJ 343

The computer age has made it easier to store and access personal information. The Personal Information Protection and Electronic Documents Act (PIPEDA) and the Access to Information and Protection of Privacy Act of Newfoundland and Labrador (ATIPPA) protect against the illegal disclosure of this information. Exceptions have been provided to allow disclosure in select circumstances and the Ontario Court of Justice recently clarified the requirements of one such PIPEDA exception in the case Re: S.C..

Re: S.C. concerned a request from police authorities for a search warrant using information previously obtained under PIPEDA. The detective had previously requested information concerning a subscriber from an Internet Service Provider (ISP) without a warrant stating that the information was being requested “under the authority of PIPEDA”. The officer was relying on a statutory exception that allows disclosure without permission or knowledge to “a government institution or part thereof that has identified its lawful authority to obtain the information and requested disclosure for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction or gathering intelligence or performing an investigation for the purpose of enforcing such a law.” The Ontario court found that the officer was not legally in possession of the information and denied the request, because an investigation alone does not constitute the “lawful authority” required under PIPEDA.

The equivalent requirement under ATIPPA is quite similar but there are a few key differences. ATIPPA similarly recognizes that complying with a valid subpoena, warrant, or order or the requirements of another validly enacted Act or Regulation is a suitable reason for disclosure. The key difference is in the second step of the required inquiry. The related exemption under ATIPPA does not require lawful authority. ATIPPA allows a warrant-less disclosure to assist a public body or law enforcement agency in an investigation undertaken in order to bring a law enforcement proceeding and from which such a proceeding is likely to result. According to ATIPPA, the existence of an investigation aimed at and likely to result in proceedings alone is adequate to merit disclosure. After this step, ATIPPA imposes one further obligation upon public bodies in this Province which is important. The information released must be limited to the minimum amount necessary to accomplish the purpose for which it is needed.

If the request is not made under prior judicial authorization, public bodies must determine if the request is made to gather information for an investigation aimed at and likely to result in proceedings. If the public body can satisfy itself that a proceeding is likely to result, they must assess what information is necessary and release only that information.

While the wording of the statutes is not identical, the principles behind them are. The Acts, and their exceptions, are designed to strike a balance between the reasonable expectation of privacy and the need to make information available for valid purposes. Public bodies in possession of private information have a duty to ensure the disclosure is allowed under a valid purpose. Public bodies cannot simply assume, based upon the wording of the request, that it is required for a valid purpose. They bear the burden of assessing that purpose, determining if it is indeed valid and selecting which information to release.

The lessons we have learned from Re: S.C. should inform our interpretation of ATIPPA. The decision in Re: S.C. indicates that public bodies subject to ATIPPA should not take the word of the requesting body operating without a warrant that their request is valid. The disclosing public body must make all reasonable inquiries to determine that there is an on-going investigation aimed at reaching a proceeding and that such a proceeding is likely to result. If the organization determines that a proceeding is likely to result, the public body must ensure that only the information necessary to the investigation underway is released.

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