Alberta CA Addresses Jurisdiction to Consider Alleged Privacy Breach by Privacy Commissioner

On February 3rd, the Alberta Court of Appeal considered who has jurisdiction to consider an alleged privacy breach by the Alberta Office of the Information and Privacy Commissioner. It held that the proper means to allege a breach of the OPIC’s confidentiality duty in the Alberta Personal Information Protection Act is by filing an application for judicial review and not by seeking appointment of a special adjudicator under the Alberta Freedom of Information and Protection of Privacy Act.

The complainant first filed a complaint to the OPIC under PIPA. He later took issue with the OIPC itself when it copied the respondents on a letter dismissing his complaint as constituting an abuse of process. The complainant alleged a breach of section 41 of PIPA, which imposes a duty of confidentiality on the OPIC that expressly permits disclosures that are necessary for the purposes of conducting an investigation and inquiry. He sought and obtained an order appointing a special adjudicator to investigate a complaint against the Commissioner under provisions allowing for such an appointment in the Alberta FIPPA.

The Court of Appeal held that the adjudicator did not have jurisdiction to hear the complaint because of an exclusion provision in Alberta FIPPA for “a record that is created by or for or is in the custody or under the control of an officer of the Legislature and relates to the exercise of that officer’s functions under an Act of Alberta.” The Court held that the adjudicator (deciding on his own jurisdiction) and the reviewing judge erred by finding that this provision excluded certain records from the right of public access but did not exclude complaints about the disclosure of personal information in such records. It held that absolute exclusion was supported by the plain language of the exclusion and a contextual reading of the exclusion. It commented on the appropriate remedial path as follows:

However, some recourse does exist in situations where the Commissioner has allegedly improperly disclosed confidential information. He acknowledges that his actions are subject to judicial review, that he may face an action based on abuse of public office given his role as a public official and, also, that he is subject to sanction or removal by the legislature should he engage in improper conduct. That said, somewhat ironically, s. 4(1)(d) protects him from the operation of the same statutory complaint mechanisms as apply to others should he improperly disclose confidential information. This result concerned the Adjudicator and the reviewing judge. If it applied, such a mechanism would provide less expensive, cumbersome and uncertain recourse than that available through judicial review or removal from office by the legislature. However, had the legislature wished the Commissioner to be subject to the same sanctions as other people, it could have included an express provision in FOIPPA to create that result while nonetheless protecting him from release of information properly required in the exercise of his functions.

The Court also held that the adjudicator and reviewing judge erred by grounding jurisdiction in section 77 of the Alberta FIPPA, which grants a right to review certain decisions of the Commissioner when acting as head of the OIPC. It held that the Commissioner does not act as head of the OPIC when exercising his adjudicative functions.

The Court’s interpretation of the records-based exclusion has some significance given the existence of similarly worded exclusions in other public sector access and privacy statutes.

Alberta (Information and Privacy Commissioner) v. Alberta (Freedom of Information and Protection of Privacy Act Adjudicator), 2011 ABCA 36 (CanLII).

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