The media has reported that a Report of Findings recently issued by the Privacy Commissioner of Canada (OPC) led to the cancellation of the television show “Border Security” – a privately produced documentary that covered the operations of the Canada Border Services Agency (CBSA).
How is it that the CBSA was made liable for a breach of the federal Privacy Act for intrusive action taken by an arm’s-length producer?
In its 26-page report the OPC does probe at the degree of control the CBSA exercised over the producer’s activity but ultimately declined to find that the producer’s collection of personal information was also the CBSA’s collection of personal information. The OPC explained:
However, the question of whether the CBSA can be said to be participating in the collection of personal information for the purpose of the Program is not determinative of our finding in this case. In our view, the CBSA is first collecting personal information in the context of its enforcement activities and thereby has a responsibility under the Act for any subsequent disclosure of the information that is collected for, or generated by, such activities.
Following our investigation, we are of the view that there is a real-time disclosure of personal information by the CBSA to Force Four [the producer] for the purpose of Filming the TV Program. Under section 8 of the Act, unless the individual otherwise provided consent, this personal information collected by the CBSA may only be disclosed for the purpose(s) for which it was obtained, for a consistent use with that purpose, or for one of the enumerated circumstances under section 8(2).
By this reasoning the OPC distinguishes the information flow under assessment from one in which CBSA is simply being observed while conducting its operations. The OPC finding seems to rest on the CBSA’s purposeful provision of access to personal information that would have otherwise been inaccessible – access that invites a “real-time” disclosure of personal information. The OPC applies a novel, expansive conception of a “disclosure.”
From time-to-time organizations are faced with a concern about the potentially invasive activities of others on their property or otherwise within their domain. Most often, they can take comfort in the availability of an “it’s not my collection and not my doing” defence. This OPC finding illustrates when such a defence might not be available.