Case Report – Another FaceBook production order made

On December 2nd, the New Brunswick Court of Queen’s bench ordered a plaintiff in a disability insurance claim to obtain “a history of her computer account use” from her ISP and “request” that her ISP generate a record accounting for her FaceBook use. These orders are becoming very common, but I will make a few notes:

  • The tactic of seeking information through the plaintiff but held by a third-party is unique. The order seems bound to lead to delay and frustration (see here for an example) but at least is backed by the plaintiff’s right of access to personal information in PIPEDA. Perhaps the defendant didn’t like its chances of obtaining an order for forensic inspection of a home computer.
  • Ferguson J. does a nice review of the applicable principles, and reminds us that the Supreme Court of Canada has endorsed necessity as a principle for dealing with production disputes over highly sensitive information by including this quote from A.M. v. Ryan: “I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truly and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a license to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.”
  • Ferguson J. does not, however, apply this filter in the circumstances, because he finds that the type of information subject to the order (mere usage data) is not part of the plaintiff’s “biographical core” of personal information. The biographical core concept, from the Supreme Court of Canada’s R. v. Plant decision, is a concept that restricts certain information from court protection.

Carter v. Connors, 2009 NBQB 317.

Case Report – More e-mail skirmishes in Canadian FOI law

On October 16th, the Alberta Court of Queen’s bench partially affirmed an Alberta OIPC order that dealt with access to e-mails. It is notable for its consideration of e-mails that were alleged to be “personal” and therefore not accessible to the public and its consideration of the process for searching and retrieving e-mails.

There have been a number of recent Ontario cases in which public institutions have argued that “personal” e-mails are not subject to public access because they are not under institutional “custody or control.” In this case, the Edmonton Police Service searched and retrieved three e-mails but made redactions on the basis that full disclosure would constitute an “unjustified invasion of privacy.” In support of this position, it argued that the e-mails were communicated by members of the Edmonton Police Association in the course of association business and with a reasonable expectation of privacy. The Court affirmed the Commissioner’s finding that the e-mails were, in fact, not sent in the course of association business. Although this finding was determinative, it also made the following comment about the Service’s computer use policy:

The EPS also submitted that the EPS Policy 5-E-7 – Electronic Communications does not “allow personal use of its email system” as stated by the Commissioner. While this may be true, the Policy does warn users of the network that communications may be monitored and accessed by system administrators, and there was nothing improper in the Commissioner’s reference to the Policy in considering whether the authors of the Emails would have had an expectation of confidentiality.

The Court also affirmed a finding that the Service did not conduct a reasonable search and set aside an order to restore and search backup tapes.

On the search itself, the requester had argued that the Service ought to have conducted an “electronic search” for responsive records instead of the “field filtering” process it actually employed – i.e. one in which custodians were asked to search, retrieve and deliver up records. (See here for an Ontario case in which the same argument was made.) The OPIC held that field filtering is reasonable, but that “the head, or the head’s delegate, should take a supervisory role and be aware of exactly what steps have been taken to locate record, as the head is accountable for the quality of the search under section 10.” The Court agreed with this, and affirmed the OIPC”s finding that the Service did not engage in proper supervision of its field search.

Finally, the Court held the OIPC erred by ordering the Service to restore and search backup tapes without considering the restriction on the obligation to create records that require an institution to use more than its normal “computer hardware and software and technical expertise” or cause “unreasonable interference” with its operation. The Court seemed to assume that restoring compressed e-mails from a backup tape involves “creating” a record. While taking no position on the issue, I note that this is a point that may be disputed.

Hat tip to Linda MacKay-Panos, who summarizes the decision here.

Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2009 ABQB 593.

Case Report – Order for production of hard drive to probe at late night Facebook use will stand

In April, the British Columbia Supreme Court ordered a hard drive to be produced to a neutral expert to identify and extract information about the amount of time the plaintiff spends on Facebook between eleven at night and five in the morning. It held that this information met the standard of relevance for production given the plaintiff had claimed that fatigue is preventing him from maintaining employment. It also characterized the scope of the defendant’s request as narrow and suggested the privacy interest of the plaintiff and other users of the (home) computer were resolved by engaging a neutral.

Yesterday, the British Columbia Court of Appeal dismissed a motion for leave to appeal. In doing so, Garson J. held that the appeal was not prima facie meritorious, but did note specific facts that indicated the order was not based on speculation.

Bishop v. Minichello, 2009 BCCA 555.

My Clawbie Nominations

Steve Matthews of Stem Legal and the Law Firm Web Strategy Blog has announced that nominations for the 2009 Clawbies are now open.

Since Steve said that his invite was coming, I’ve been thinking about where I was going to spend my votes and what I like about a blog. I concluded that it’s more about the blogger than the blog for me. With that in mind, here are my nominations.

  1. David Fraser’s Canadian Privacy Law Blog. I like David’s blog because he’s really, really into privacy and it shows in his blog and his other public activities. And David seems to get the scoop on good cases, either from a contact or from being involved (like on the strange and fascinating Lisa Raitt lost tape case). Finally, David’s also probably the only one of Lexpert’s Top 40 Under 40 with a blog. Congrats and thanks David!
  2. Michael Fitzgibbon’s Thoughts From a Management Lawyer. Mike doesn’t post as much as he used to, but when he does it’s good. His analysis is always tight but his style is casual, which makes for a presentation I admire greatly. Finally, Mike has been generous to me even though I’m at a competitor management-side employment firm. In other words, he understands what online social networking is really about. Thanks Mike.
  3. ABLawg.ca. This is the University of Calgary Faculty of Law blog. It’s a regional blog, which is distinguishes it from Osgoode’s competitive offering – ultra-heavyweight two-time Clawbie winner The Court. I like The Court, but actually find ABLawg a more useful practice support, with content of day-to-day relevance. The current headlining post, for example, is on an FOI case. Unreal!

I wish I had more votes. Slaw is awesome, and I’m having a great time writing for it. I’ve also enjoyed getting to know Omar Ha-Redeye. Omar’s so high profile, but should not be underestimated because of it. He’s a pretty fascinating guy, with a lot of things to say that are well worth a listen. Finally, Antonin Pribetic – “The Trial Warrior” – is amazing. His content is right down my alley. I only wish I could keep up!

Thanks all! Good year.

Dan

Case Report – Federal Court comments on confidentiality of drafts

On November 30th, the Federal Court dismissed a federal Access to Information Act application about the application of the solicitor-client privilege exemption. Notably, Montigny J. made the following comment about the confidentiality of draft documents:

The Supreme Court also held in Blank, supra, that there is often a potential for overlap of legal advice privilege and litigation privilege in the litigation context. Legal advice privilege may continue to apply to material to which litigation privilege no longer attaches (Blank, at para. 49). I have found that there are several examples of this kind of overlap in the case at bar. This is true, in particular, of draft court documents or submissions. These draft documents remain protected by legal advice privilege under s. 23 of the Act even though the final version of these documents may have been released once the litigation privilege that applied to them had come to an end. Draft court documents, while being drafted, represent an interchange between solicitor and client, wherein the solicitor provides the client with direction or options as to the legal position to be taken in pending litigation. The client, in turn, comments on that legal advice, provides further instructions, and so forth. Draft court documents and submissions are, by their very nature, intended to be confidential. It is only the final version that is filed with, or submitted to, the court that is not so intended. The draft court documents or submissions clearly satisfy the three criteria set out in Solosky, supra, for legal advice privilege.

This reasoning has general significance to the law of solicitor-client privilege. It is also relevant to exemptions such as the government advice exemption in Ontario freedom of information legislation. The IPC/Ontario, I believe, has taken the position that draft records do not reveal “advice” and are therefore not exempt from public access.

Blank v. Canada, 2009 FC 1221.

Two presentations on privacy, campus and workplace violence and student affairs

Our firm has the pleasure of doing extensive work in the Ontario post secondary education sector. As part of this business, we ran a conference entitled Students and the Law – Proactive Strategies for Changing Times for a group of university administrators in early November and a similar session again today for college administrators.

I spoke on students at risk and managing on-campus violence together with my colleague Catherine Peters. Catherine covered the impact of Ontario’s pending workplace health and safety legislation (Bill 168) on campus safety programs as well as the (tricky!) interplay between disciplinary and non-disciplinary management. I also dealt with Bill 168 in discussing mandatory and discretionary disclosures of personal information for the purpose of managing risk. The slides are below, and for a copy of my speaking notes click here.

I then did a short “hot issues” in student information and privacy presentation, with a brief note on the tort of invasion of privacy, a fun segment about students who take other students’ pictures and a note about processing the “I want all my e-mails” access to personal information request. The slides are below, and for my speaking notes click here.

Here are some recent and relevant resources that we noted in our discussion:

I’d like to thank Gene Deisinger, who has recently begun duties as Deputy Chief of Police & Director of Threat Management Services at Virginia Tech, for identifying some of these resources. Gene and colleague Marisa Randazzo do an excellent podcast on threat assessment that’s linked from the fourth bullet above.

I hope this material is of use!

Dan

Information Roundup – 29 November 2009

Here are tweets from the last few weeks you may be interested in (in chronological order):

I need to take this opportunity to give a big shout out to “Buffalo Littlebones,” our cat. Poor little guy seems a little out of sorts because of all the attention we’re giving to our human children. Yes, you whine incessantly until we let you out, then immediately whine incessantly to be let back in. Yes, it is annoying when you prick at our necks at 3 o’clock in the morning. Yes, that was pretty uncomfortable when you refused to get off my lap for 17 hours straight of driving. Despite all this, dear Buffalo, you will always be our first!

See ya!

Dan

Case Report – Court says party ought to have taken counsel’s word about missing computer

On October 22nd, the Ontario Superior Court of Justice dismissed a motion for production of a personal computer and criticized the moving party for proceeding in the face of a sworn statement by the opposing party’s solicitor that indicated the computer was gone.

The computer once contained information relevant to a loss of income claim. The plaintiff discarded it because it had broke down sometime after she printed and produced invoices from her personal business and sometime before a mediation attempt, which occurred slightly less than a year later. In the interim, the defendant made and sustained a request for electronic copies of the invoices.

When the defendant moved for production, plaintiff’s counsel wrote and later swore that the computer had been discarded and consented to allow the defendant to plead spoliation. Defence counsel persisted and generated some damning evidence in cross-examining the plaintiff’s witnesses, including a statement by the IT professional who the plaintiff relied upon, who said that he never actually examined the plaintiff’s computer.

Though the defendant was clearly onto something, Master Brott was not impressed that the defendant persisted despite the plaintiff’s agreement to deal with a spoliation claim and, in particular, plaintiff counsel’s statement that the computer was gone:

The circumstances leading up to this motion are in my view, a clear example of a proceeding going astray – of not being able to see the forest through the trees. Lawyers take oaths which require them to act in a professional manner. Defence counsel urged me to ignore the evidence of solicitor Sacks because of the contradictions obtained from the plaintiff’s boyfriend and the IT specialist. I am not prepared to ignore the solicitor’s Affidavit, nor the correspondence and telephone information from plaintiff’s counsel to defence counsel advising that the computer is no longer available. Whether the computer was in fact given to the IT specialist or is corrupted or is still available cannot be established at this stage. But what is critical is that counsel has sworn that the computer is no longer available. That should be the end of it! The rest is for trial.

…

… once [the Defendants] received plaintiff’s counsel’s correspondence outlining the corruption of the computer and the further information that the whereabouts of the computer were unknown and unrecoverable, the over-zealous actions of the defendants all the while knowing that even if successful, any Order could not be effective, was inappropriate. The rules encourage parties to proceed in a fair and inexpensive fashion and to attempt to resolve their disputes.

Cerkownyk v. Ontario Place, 2009 CanLII 62065 (ON S.C.).

Case Report – B.C. Court strikes privacy breach claim brought against raiding union

On November 23rd, the British Columbia Supreme Court issued a judgment striking out a privacy breach claim brought by an incumbent union against another union engaged in a so-called membership raid.

The incumbent (the HEU) argued that the raiding union (the BCNU) breached the British Columbia Privacy Act and the British Columbia Personal Information Protection Act by misusing personal information collected from its members in executing a “high pressure campaign.” The BCNU moved to strike the claim. It argued (1) the HEU had no standing to sue on behalf of its members (whether named or not); and (2) PIPA does not support a civil cause of action.

The Court agreed with both arguments. It concluded that both the Privacy Act and PIPA grant an individual right of privacy that cannot be asserted by a union on behalf of its members: “This is a radical defect; the plaintiffs have no entitlement to bring an action based on a violation of another person’s privacy.” On whether PIPA supports a civil cause of action, it said:

PIPA provides an adequate administrative scheme. I find support for this in the provisions of PIPA generally and specifically in s. 57. Section 57 clearly shows that the Legislature considered the issue of civil claims; it only included a right for an individual to advance a claim against an organization for damages after the commissioner has made an order. This has not occurred here.

The Court also struck claims based on fraudulent misrepresentation and deceit, leaving the HEU action to proceed on the basis of interference with contractual and economic relations.

Facilities Subsector Bargaining Association v. British Columbia Nurses’ Union, 2009 BCSC 1562 (CanLII).

Case Report – IPC blesses manual processing of FOI request despite push for “e-access”

On October 29th the IPC/Ontario issued an order in what appears to be a well-litigated dispute about the access request process. It rejected a challenge to the reasonableness of a search and the reasonableness of a fee estimate that was based on the respondent municipality’s manual process of providing access.

The responding municipality’s FOI officer directed officials to conduct searches for responsive records and to print and forward responsive records. The officer then manually de-duplicated and reviewed records prior to providing access. The appellant argued that this process was unreliable and inefficient and that the municipality either should have used its IT department or third-party to process the request using automated means. The IPC deemed the municipality’s chosen process to be reasonable, though it disallowed fees related to 2.5 hours of de-duplication and organization because the municipality did not provide sufficient supporting particulars.

The IPC has, in at least one order, endorsed an “e-access” process in upholding a fee estimate for about $12,500. Though such a process is more in tune with prevailing best practices for records search and retrieval, it will also tend to result in higher costs, all of which can be transferred to an Ontario requester if a third-party service provider is used. Given the requester in this more recent case was asked to pay less than $500 to receive the benefit of the municipality’s (certainly laborious) manual efforts, one may wonder if she really wanted what she asked for.

MO-2472, 2009 CanLII 63119 (ON I.P.C.).