On November 22nd, the Federal Court of Appeal clarified the circumstances in which the Federal Court has jurisdiction to hear an application for review of a deemed refusal under the Access to Information Act. The Court held that the Information Commissioner does not “cure” a deemed refusal by issuing a report that recommends a time frame in which an institution should respond to a request. A requester may therefore apply to Federal Court within 45 days of such a report, subject to a potential mootness argument that may be raised based on an answer that is delivered by the institution prior the hearing of the application.
Archive | November, 2010
Case Report – Federal Court of Appeal clarifies jurisdiction to hear deemed refusal ATIP applications
29 NovCase Report – SCC deals with the disclosure of customer information to law enforcement
27 NovOn Wednesday, the Supreme Court of Canada held that an accused person had no reasonable expectation of privacy in detailed information about his residential power consumption over a period of time. The decision contains a significant dialog about the disclosure of customer information to law enforcement and, in such circumstances, the effect of terms governing the customer relationship.
Background
An digital recording ammeter (or “DRA”) is a device that is installed on a power line to measure electrical consumption. In this case, the police asked an electrical service provider to install one to measure electrical consumption at a residence they suspected of housing a grow-op. The service provider agreed, and later produced a graphical representation of showing power consumption over five days. The graph showed a pattern of 18-hour cycles of high consumption, which is consistent with the presence of a marijuana grow-op. Partly on the strength of this evidence, the police obtained a warrant that led them to lay charges.
Whether the police violated the accused person’s reasonable expectation of privacy by conducting a warantless “DRA search” was the key issue in the case. It turned on (1) the effect of a regulatory provision promulgated under the Alberta Electrical Utilities Act that expressly permits Alberta service providers to disclose customer information to the police without consent unless contrary to their express wishes and (2) the quality of the electricity consumption information (and whether it went to the accused person’s “biographical core of personal information”). Note that the statutory permission, in the circumstances, was also backed by a contractual provision that warned the accused person that his information could be provided to law enforcement “for drug investigations.”
The Effect of Terms Governing Customer Information
A seven judge majority recognized the statutory permission as a relevant factor that weighed against a reasonable expectation of privacy.
For Deschamps J. (joined by Charron, Rothstein and Cromwell JJ.) the permission was a relevant factor. For Abella J. (joined by Binnie and LeBel JJ.) it was the dominant factor in the circumstances. In principle, the two majority judgments are similar.
Not so for the dissenting judges – McLachlin C.J. and Fish J. Here is a passage from their jointly written dissent:
Every day, we allow access to information about the activities taking place inside our homes by a number of people, including those who deliver our mail, or repair things when they break, or supply us with fuel and electricity, or provide television, Internet, and telephone services. Our consent to these “intrusions” into our privacy, and into our homes, is both necessary and conditional: necessary, because we would otherwise deprive ourselves of services nowadays considered essential; and conditional, because we permit access to our private information for the sole, specific, and limited purpose of receiving those services.
A necessary and conditional consent of this sort does not trump our reasonable expectation of privacy in the information to which access is afforded for such a limited and well-understood purpose. When we subscribe for cable services, we do not surrender our expectation of privacy in respect of what we access on the Internet, what we watch on our television sets, what we listen to on our radios, or what we send and receive by e-mail on our computers.
Likewise, when we subscribe for public services, we do not authorize the police to conscript the utilities concerned to enter our homes, physically or electronically, for the purpose of pursuing their criminal investigations without prior judicial authorization. We authorize neither undercover officers nor utility employees acting as their proxies to do so.
The response to this argument by the majority is remarkably subtle. Deschamps J. agrees that the reasonable expectation of privacy standard is normative, suggests that she is not prepared to make a general pronouncement about the constitutional effect of “disclosure clauses,” but says that terms governing a customer relationship are nonetheless one relevant factor of many in assessing the reasonableness of a privacy expectation. Significantly, however, Deschamps J. does argue that a service provider’s equal interest in information about the services it provides to its customers weighs against section 8 protection:
A final factor affecting the informational privacy analysis and diminishing Mr. Gomboc’s expectation of privacy in the information disclosed by the DRA is the fact that his interest in the electricity use data was not exclusive. His electricity consumption history was not confidential or private information which he had entrusted to Enmax. As the supplier of electricity, Enmax had a legitimate interest of its own in the quantity of electricity its customers consumed.
Abella J.’s judgment on this issue is similar. Like Deschamps J., she deflects the strong minority argument: “There can be no examination of the totality of the relevant circumstances without including the fact that the Regulation exists. It cannot, therefore, be seen as neutral or irrelevant.”
Biographical Core and Personal Information
Five of the nine judges held that information about residential power consumption over a period of time reveals an individual’s “biographical core” of personal information.
Deschamps J., in the minority on this issue, held that police use of DRA technology reveals only “information about electricity use” and not about the intimate and personal choices of the occupants of a residence. She holds that DRA data can support a very strong inference that a residence is being used as a grow operation, but not much else. Though information about criminal activity is protected by section 8, Deschamps J. suggests that DRA’s focus on information about criminal activity minimizes its impact and, remarkably, favours its use as a privacy protective surveillance technique.
McLachlin C.J. and Fish J. take great exception to Deschamps J.’s suggestion that the use of DRA can be justified by its focus on the collection of information about criminal activity: “First, the constitutionality of a search does not hinge on whether there are even more intrusive search methods the police could have improperly used.” Aside from making this rebuttal, McLachlin C.J. and Fish J. cite to a law review article for the proposition that hourly electricity data can reveal “personal sleep, work, and travel habits, and likely identify the use of medical equipment and other specialized devices.”
Like McLachlin C.J. and Fish J., Abella J. finds that DRA information reveals information of the kind protected by section 8. She doesn’t reach quite as far though, relying more on the DRA’s efficacy in revealing information about criminal activity itself and the more basic proposition that section 8 protects such information.
Conclusion
Whether in the name of corporate social responsibility or something else, most businesses do not wish their services to be used for criminal activity. There is a relatively indisputable public interest in allowing businesses to report crimes that they discover in dealing with customers, but the legality of asking business to hand over their customer information has been less certain. Accused persons have recently made arguments (similar to that made by McLachlin C.J.C. and Fish J.) that suggest the normative rule embodied in section 8 of the Charter makes businesses’ own interest in records of customer information and any privacy-reducing terms of contract irrelevant. Though somewhat qualified, this judgment suggests that customer information, in particular when governed by terms that permit disclosure to law enforcement, is less likely to be protected by section 8 of the Charter.
Case Report – Federal Court dismisses application, articulates what damages are compensable under PIPEDA
19 NovOn November 12th, the Federal Court dismissed a PIPEDA application for damages for a loss of employment that arguably flowed from a wrongful disclosure.
The applicant sold the respondent scrap metal for his employer. He began to sell scrap metal to the respondent on the side and apparently sold some of his employer’s scrap metal to his own credit. The employer spoke with the respondent after it noticed a decline in sales. The respondent disclosed the fact that the applicant had opened a supplier’s account in his own name and provided the employer with the applicant’s account statements. The employer terminated the applicant, who filed and then withdrew a wrongful dismissal suit in favour of a PIPEDA application targeted at the respondent.
The Court held that the respondent breached PIPEDA by disclosing the applicant’s personal information without consent. Notably, it suggested that information about the improper sales of the employer’s own scrap metal was “about the employer’s money” and not the applicant’s personal information. This reasoning did not justify the whole of the disclosure, however, as the applicant apparently sourced some of his scrap from means other than his employer.
Despite finding a breach, the Court dismissed the application because the applicant had proven no compensable damages. While acknowledging that the applicant might not have been terminated had the wrongful disclosure not been made, it held that PIPEDA only grants a right to damages intrinsic to the breach of privacy. It explained:
The Court must examine the real nature of the remedy claimed. Such claims as humiliation, loss of community support, diminution of standings and loss of income flowing therefrom (to name but a few) caused by breach of the Act fall within the statutory cause of action created by the Act. Claims for loss of income and similar loss due to termination of employment not caused by breach of the Act, do not.
The source of the Applicant’s complaint is the loss of his employment. He even claims for loss due to loss of a second job. But all of his loss claimed is tied directly to his termination for cause. While the termination might not have occurred if there had not been disclosure, the nexus to the claimed loss is termination of employment for which Stevens had, but gave up, the right to claim was unlawful.
Case Report – BCSC awards damages for breach of privacy
18 NovOn November 15th, the British Columbia Supreme Court awarded $40,000 in damages for defamation and breach of privacy.
The award was based partly on a number of publications made by an ex-husband about his ex-wife that the Court held were defamatory and unjustified. The Court also upheld a privacy claim based on the ex-husband’s use of e-mail communications he obtained from an old home computer and distributed for the purpose of scandalizing his ex-wife.
Information Roundup – 15 November 2010
15 NovHere are some links you may find interesting:
- Facebook, Background Checks and Job Applications http://bit.ly/9yyhN5
- Australia to Subject International Students to Biometric Scans http://bit.ly/9kD8Lt
- Who ‘Owns’ A Twitter Account: Employer Or Employee? techdirt.com/articles/20101… via @dominicjaar and thanks @VBalasubramani
- RT @slaw_dot_ca Social Media Use in the Workplace – Slagging Your Boss http://bit.ly/9mfiKH
- NYTimes: Company Accused of Firing Over Facebook Post http://nyti.ms/djca6U
- @HarrisSchoolLaw: Interesting new BCLRB case on employee use of Facebook: http://www.lrb.bc.ca/decisions/B190$2010.pdf”
- Secret Meech Lake talks remain secret theglobeandmail.com/news/politics/… via @globeandmail
- Federal government in Austrialia passes journalists shield law (by P. Timmins): http://bit.ly/aXdbsj
- RT @chrisdaleoxford: Lessons from Applied Discovery Proportionality panel in Toronto http://wp.me/p2KJ5-13d #ediscovery
- SCOTUS in NASA v. Nelson Launches Constitutional Debate on Employees’ Informational Privacy http://bit.ly/b0mVJS
- NPR: FBI’s GPS Tracking Raises Privacy Concerns-More at http://n.pr/130833487
- NYTimes: Drug Testing Poses Quandary for Employers http://nyti.ms/anRu3v
- Canadian Forces won’t change access to staff records despite Williams case theglobeandmail.com/news/national/… via @globeandmail
Three time world surfing champion Andy Irons passed away on November 2nd on the way home to Hawaii from Puerto Rico. Reports say he died as a result of dengue fever, but there’s also been reports linking the death to a rumored drug addiction. I hope the surf media gets to the bottom of the story, but am skeptical that it will not be inclined to probe. Regardless of the cause of death, it’s very sad. “AI” was a brilliant surfer and colorful personality. For me, Andy Irons was easy to like because he was always very genuine in the way he presented himself to the public. Here’s a touching tribute from photographer Brian Bielmann, with music by the late “IZ” Kamakawiwoʻole.
Dan
Case Report – Facebook status does in Tax Court respondent
13 NovOn October 22nd, the Tax Court of Canada issued an amusing judgement in which it relied on a taxpayer’s Facebook status in determining that he was a contractor rather than an employee. The evidence went to the parties’ intention, a relevant factor in the applicable legal test. The Court said:
Mr. Bidner put to Mr. Hall in cross-examination that Mr. Hall described himself as “self-employed” from April 2006 to the present on Facebook. Mr. Hall’s response was that you do not have to be honest on Facebook. That is correct, or at least if it is not, it is of no particular importance to this Court for this proceeding. Mr. Bidner then asked why Mr. Hall chose not to be truthful about his self-employment. Mr. Hall responded that it was to protect his privacy, just as he did not disclose what he did or where he worked. Mr. Bidner then pointed out to him that he did describe himself as a self-employed hair colourist specialist in Ottawa. The Court asked Mr. Hall if he would like to see a copy of the 2009 Facebook page and he replied that he did not need to.
Upon later request for clarification by the Court Mr. Hall indicated everything else, his age, his likes and preferences, his hometown, his education, activities and groups were all true and the only thing he misrepresented in his Facebook entry was his self-employment status. He went on to affirm again that this was because of privacy concerns. He could not explain how being employed versus self-employed touched on internet-related or other privacy concerns, especially since he disclosed himself as an Ottawa-based hair colour specialist and used his real name. In argument, counsel for the respondent was similarly unable to even hypothesize a scenario where one’s employment or self-employment status alone could be thought to give rise to a privacy concern.
Mr. Hall described himself on Facebook as a self-employed hair colour specialist. Everything else about him on his Facebook info page he says is true. This is his own description of his work status made voluntarily, describing his work during the period he worked at the appellant’s salon. It was made in a setting where nothing seemed to turn on it. Though he now says it alone was untrue and dishonest, he cannot explain why this would be the one thing he would choose to lie about on Facebook regarding his personal information.
In such circumstances, I do not accept Mr. Hall’s explanation that he chose to lie on Facebook about the self-employment characterization of his hair colouring activities at the salon. To the contrary, I regard it to be evidence that Mr. Hall intended, when he started at the salon, to be self-employed and that he understood this at least up to the time he created his Facebook entry.
Shonn’s Makeovers & Spa v. Canada (Minister of National Revenue – M.N.R.), [2010] T.C.J. No. 415 (QL).
Case Report – Warrantless search for internet subscriber’s data okayed by BCSC
11 NovOn November 1st, the British Columbia Supreme Court dismissed a Charter application that challenged a letter request made by the police to an internet service provider for the name and address of an account holder associated with a specific IP address at a specific point in time.
There have been a number of recent Canadian cases about whether the police can investigate internet crime by asking an ISP to reveal the identity of the individual linked to an IP address that is associated with unlawful and anonymous activity. The cases turn on whether this investigatory tactic violates a reasonable expectation of privacy. Two factors have featured strongly in the analysis (1) the nature of the information obtained by the police and (2) the contractual terms between the individual and ISP.
In this case, Justice Meiklem of the BCSC endorsed the approach taken by the Ontario Superior Court of Justice in R. v. Wilson. He held that so-called “subscriber information” was not part of the applicant’s biographical core of personal information and held that the terms of service of his internet service plan weighed against a reasonable expectation of privacy. His Honour also commented, “It seems clear to me that, absent a finding of state agency, s. 487.014(1) [of the Criminal Code] provides the police with lawful authority to make a PIPEDA request for subscriber information, which an ISP is not prohibited by law from disclosing if it falls within the provisions of s. 7(3)(c. 1)(ii) of PIPEDA…”
R. v. McNeice, [2010] B.C.J. NO. 2131 (S.C.) (QL).
Case Report – Alberta arbitrator doesn’t like Patriot Act argument
9 NovOn September 7th, an arbitration board chaired by Arbitrator Jones of Alberta partly upheld a grievance that challenged the implementation of psychometric testing for principals and others. The grievance award is largely fact-specific, but is notable for its treatment of an association argument that suggested the testing program was unreasonable because it required a transfer of personal information to the United States.
Arbitrator Jones said:
A great deal of the ATA’s objections to the LPA relate to the fact that it was created by High Performing Systems Inc, which is an American organization, is based in United States, has links to the U.S. military, and uses U.S. data (at least in part). Xenophobia does not establish the unreasonableness of the use of the LPA as part of the selection process.
Arbitrator Jones did, however, find that the rollout of the program was “maladroit,” suggesting that there were questions about the privacy impact of the program that the employer ought to have been prepared to answer.
Calgary Board of Education v. Alberta Teachers’ Assn. (Leadership Potential Assessment Grievance), [2010] A.G.A.A. NO. 52 (Jones) (QL).
Case Report – Federal Court says Information Commissioner can order production of excluded records
6 NovOn September 24th, the Federal Court held that the Information Commissioner of Canada can order the CBC to produce records it claims to be excluded as records relating to journalistic, creative or programming activities.
The CBC denied access based on a special exclusion that it was granted when it was brought under the Access to Information Act in 2007. It reads:
68.1 This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.
The Court held that the Commissioner can order production of records claimed to be excluded under this provision in the course of investigating an access complaint because reading “this Act does not apply” to preclude such a power would frustrate the purpose of the ATIA. It also noted that there was no evidence of harm to the CBC’s journalistic interests that would flow from handing records over to the Commissioner.
Canadian Broadcasting Corporation v. Information Commissioner of Canada, 2010 FC 954 (CanLII).
Case Report – Ontario Court of Appeal grants media broad access to video evidence
6 NovOn November 1st, the Ontario Court of Appeal amended an order to give the media greater access to video evidence filed as exhibits in a preliminary inquiry.
The Crown charged four correctional officers with criminal negligence causing death after a prisoner died in custody. The Crown dropped the charges mid-way through the preliminary inquiry and the CBC then sought access to video and audio recordings filed as exhibits. The Court ultimately gave the CBC access, but held that it was only entitled to view and copy portions of video played in court and held that it could view but not copy the portion of the video that was played showing the prisoner’s death.
The Court first held that the Dagenais/Mentuck framework applies to a request for access to exhibits. Regarding the “played in court” limitation, the Court held there was no principled reason to deny access to the whole of an exhibit:
When an exhibit is introduced as evidence to be used without restriction in a judicial proceeding, the entire exhibit becomes a part of the record in the case. While a party may choose to read or play only portions of the exhibit in open court, the trier of fact, whether judge or jury, is not limited to considering only those portions when deciding the case. A party who introduces an exhibit without restriction cannot limit the attention of the trier of fact to only portions of the exhibit that favour that party and that the party chooses to read out or play in open court.
Regarding the restriction on copying portions of video showing the inmate’s death, the Court held there was no evidence adduced to support the restriction.
