I presented on preserving evidence of internet publication today at our semi-annual internal professional development session. I used the session to promote immediate, periodic and broad preservation because when content comes down from social media sites it is as good as lost. My worry is that objectionable words will be preserved without also preserving the relevant context thereby impeding prosecution by opening up a spoliation issue.

Slides below, with annotations over at Slideshare. Thank you to articling student Matthew Scott for assistance on this.

On October 26th, the Supreme Court of Newfoundland and Labrador (Court of Appeal) held that the Newfoundland Information and Privacy Commissioner can require a public body to produce records claimed to be exempt from public access as subject to solicitor-client privilege.

The Newfoundland Access to Information and Protection of Privacy Act gives requesters a right to seek review of an access decision either through the Commissioner or the Trial Division. In the event of a review, the Commissioner may require production of records, and a public body has a corresponding duty under section 52(3) to provide responsive records “notwithstanding another Act or a privilege under the law of evidence.”

The Court held that section 52(3) allows the Commissioner to compel the production of records claimed to be exempt from public access as subject to solicitor-client privilege. It relied on the provision’s ordinary meaning interpreted in light of legislative purpose, which it said was “to provide for an independent review officer, as an alternative to the courts, who can undertake a timely and affordable first level review of all information request denials.”

The Court also made the following notable comment about the exercise of discretion to demand a review of documents subject to a privilege claim:

If the Commissioner were to receive a letter (or possibly an affidavit) from a senior Justice official indicating that all materials were provided as per an access to information request save for documents containing legal advice (identified by subject matter, date and solicitor) could not the Commissioner reasonably rely on that to conclude that the documents in question are in fact privileged? Such an arrangement, it seems to me, should operate to deal with the vast majority of cases. And, in the few where the Commissioner felt compelled to pursue matters further, the discussion would be focused in a way that should assist reasoned consideration.

The key to all this is good faith in the exercise of authority. With that comes mutual trust, by the Commissioner that senior Justice officials are being truthful and by Justice officials that the Commissioner will not unreasonably call for the production of legal opinions and advice. Cooperation should be the rule and litigation very much the exception.

Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Attorney General), 2011 NLCA 69 (CanLII), retrieved on 2011-11-1.

Employers are now often confronted by employees who ask for help in addressing defamation linked in some way to their work responsibilities.

Employers do have a duty to provide a safe and harassment free workplace, but this is a very different concept than a duty to protect an employee’s reputation. I just stumbled across a Federal Court case issued in June in which Justice Zinn says the latter duty does not exist. He says:

I agree with the Attorney General that the Adjudicator expanded the duty of good faith beyond the parameters set out in Wallace. He created a new duty according to which an employer has a positive obligation to protect an employee’s reputation. Such a positive duty does not exist at common law, and no authority was provided by the Adjudicator in support of it. Requiring an employer to take certain positive actions in response to reports in the press which are alleged to damage the reputation of one of its employees does not fall within the Supreme Court’s determination in Wallace that an employer has an obligation “to be candid, reasonable, honest and forthright with their employees.”

More controversially, Justice Zinn suggests rather categorically that an employer can stop an employee from speaking out to clear his or her own name so it can speak to the media (about controversy caused by the employee) in its own single voice.

Canada (Attorney General) v. Tipple, 2011 FC 762 (CanLII).

I presented with Alex Cameron of Fasken’s today at the Association of Municipal Clerks and Treasurers of Ontario “Municipal Information Access & Privacy Forum.” Alex and I have done this privacy and litigation presentation together before, but today we were drawn into some good issues about municipal information governance by a very sophisticated audience.

For me, today’s light bulb was about how good information governance relies so heavily on separating electronic communications based on their purpose: ideally, work communications should flow separately from personal communications which should flow separately from “constituency communications” (for councilors).

The well known City of Ottawa decision – in which the Divisional Court held that personal e-mails are not subject to our provincial access legislation – is certainly liberating to public servants who are personal users (who isn’t?), but it invites a mixing of personal and work communications in a way that makes municipalities’ ability to govern communications more challenging. This recent municipal privacy case is an example of a governance breakdown related to a difficult to characterize e-mail, and was raised today in a manner that highlighted the difficulties with mixed flows.

One message today was that municipalities have to work very hard to assert their right to govern the mixed purpose communications on their systems. With employees, this has been done for years through acceptable use policies, such policies slowly evolving to be more express about management rights. As the discussion today highlighted, councilors cannot be so easily controlled, which lead some audience members to share great insight on what communication services to offer councilors and on what terms. I’m afraid I don’t a blueprint to recommend, but as I began, practices that encourage the separation of communications by purpose will result in great benefit.

Slides below.

On August 31st, Arbitrator Russel Goodfellow issued an order relating to the production of a grievor’s occupational health file before a pending arbitration hearing. In doing so, he opined as follows:

The employee – in taking on the employment relationship with Telus, in seeking benefits under the collective agreement that applies to her, in providing medical documents to Telus Health directly or through her health care providers, in tacitly agreeing to the collection and/or creation of such documents from and by others, and/or in seeking to enforce her statutory rights to accommodation – does not cede ultimate control or dominion over the documents or the information that they contain. The information remains, in a fundamental sense, hers: see eg. McInerney v. MacDonald, [1992] 2 S.C.R. 138. To paraphrase the Court, the fact that the individual may have chosen, or have even been required, to make personal information available to others in order to obtain certain benefits does not mean that she has abandoned her “basic and continuing interest in what happens to this information, and in controlling access to it.” The grievor retains fundamental control over this “highly private and personal” information that goes to her “personal integrity and autonomy”. The requirement of consent is real, it is not a matter of convenience or superstition, and there is no suggestion, for example, that the employee has somehow waived that requirement here…

Before leaving this issue, I would comment that it is unfortunate, but perhaps understandable in the light of the parties’ history, that this matter could not have been resolved on agreement. There is a rapidly developing convention, at least amongst large unionized employers in this province, which I wholeheartedly endorse. That convention is for the entire file to be requested by the union, just as the Union did here, with the consent of the grievor, sometimes from the Occupational Health Department of the employer (where that function is performed “in-house”) directly, and for “Occ.Health” to then hand over the file, in its entirety, to the union. Sometimes, though less often, it is the employer that initially seeks production of the file, and that request is typically made either by way of a request by the employer for the grievor’s consent or for an order from the arbitrator made to Occ. Health. Sometimes the two processes go hand in hand.

Though this framework has been endorsed by at least one other Ontario arbitrator, I question whether there is really such a convention and posit that most Ontario employers would take a similar position to that taken by the employer in this case – that an occupational health file is a company file that contains sensitive employee personal information and may be used (and accessed), pursuant to prior obtained consent, for the purpose its contents were collected.

Administering employee medical information in a special file, separate from other employee information, has an important security-related benefit; it creates a “privacy screen” to ensure that access to sensitive information is limited to the occupational health staff who require access for routine use. It should not preclude employer access for non-routine uses that are consistent with the purpose for establishing the file, including non-routine uses such as preparing for arbitration. If employers are required to obtain express consent to prior to accessing their own occupational health files for such a purpose, they face a greater restriction than health care providers face in accessing personal health information that is regulated by the Personal Health Information Protection Act. (See ss. 37(1)(h) and 41(1)(a).) This can’t be correct.

The stakes may be low in dealing with pre-hearing preparation and production (which is probably why some employers seek express consent), but other legitimate uses of occupational health files (such as workplace risk management) cannot be frustrated by a view that regards an important employer file as a locked box that can only be accessed by persons outside of the occupational health department with express employee consent. Arbitrators have been tempted to treat occupational health files as akin to a health care files, but such a conception can cause internal confusion, conflict between occupational health staff and line management and, in construction and heavy industry, can lead to deadly consequences.

Telus Inc v Telecommunications Workers Union, 2011 CanLII 57030 (ON LA).

[The views expressed are mine alone.]

On August 12th, British Columbia Arbitrator Heather Laing declared unreasonable a driving safety program that entailed the annual collection of motor vehicle records to identify and address high risk drivers.

Arbitrator Laing held that the program engaged employee privacy rights and that the employer – whose vehicle incident record was actually improving – had not justified its use in light of less intrusive options for maintaining and improving driving safety (such as skills training). She distinguished Ontario Arbitrator David McKee’s recent Union Gas cases as dealing with access to Ontario driver abstracts, which are available to the public without consent.

This case will be upsetting to employers for its suggestion that employers need to prove a safety problem to justify any collection of personal information. Arbitrator Liang finds that the non-public nature of British Columbia motor vehicle records (which include height, weight and 5-year driving record information) is significant, but does not analyze the meaning of the information itself in making a reasoned conclusion about “sensitivity.” There is ample Charter jurisprudence that establishes the driving public sacrifices a great deal of privacy in exchange for the privilege operating a motor vehicle on public roadways that weighs in favour of “non-sensitive” finding. Collection of use of non-sensitive employee personal information for bona fide safety-related purposes should not be unreasonable.

Spectra Energy v. Canadian Pipeline Employees’ Assn. (Motor Vehicle Record Grievance), [2011] C.L.A.D. No. 266 (H. Laing) (QL).

On September 13th the Federal Court ordered a law firm to pay $1,500 in damages for publishing an Office of the Privacy Commissioner of Canada decision letter and report of findings that contained an individual’s personal information.

PIPEDA allows some publicly available information to be used and disclosed without consent, including:

personal information that appears in a record or document of a judicial or quasi-judicial body, that is available to the public, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the record or document

The OPC arguably does not act as a judicial or quasi-judicial body in investigating privacy complaints nor are its decision letters and reports public, so the law firm could not rely on this exception.

Though the “related directly to the purpose” requirement is narrowing, law firms are more open to using and disclosing personal information contained in published court and tribunal awards in their publications. The OPC’s recently-published PIPEDA and Your Practice guideline for lawyers nonetheless establishes an anonymization “best practice”:

Ultimately, lawyers should be conscious of limiting the disclosure of any personal information they may have. As a best practice, lawyers preparing newsletters or giving presentations at conferences should give thought to anonymizing or deidentifying personal information in any case law or resources they rely on. Most times, the identity of an individual need not be disclosed in order to explain the legal reasoning underlying a decision.

Does your firm have a protocol in place to address this?

Here’s David Fraser’s post on the case. (David, you’re fast man!)

Girao v. Zarek Taylor Grossman Hanrahan LLP, 2011 FC 1070.