Tag Archives: access to personal information

The Australian “Ben Grubb” decision and its link to Canada

24 Jan

There’s been some talk about the Federal Court of Australia’s recent decision in the “Ben Grubb” case – Mr. Grubb being the journalist who requested and was denied access to certain data related to his mobile phone usage from his carrier. Although the data was linked to Mr. Grubb’s mobile phone usage, the Court held it was not “information about” Mr. Grubb and therefore was not “personal information” that Mr. Grubb could access under the Australia Privacy Act. The Court explained:

…in every case it is necessary to consider whether each item of personal information requested, individually or in combination with other items, is about an individual. This will require an evaluative conclusion, depending upon the facts of any individual case, just as a determination of whether the identity can reasonably be ascertained will require an evaluative conclusion.

In some instances the evaluative conclusion will not be difficult. For example, although information was provided to Mr Grubb about the colour of his mobile phone and his network
type (3G), we do not consider that that information, by itself or together with other information, was about him. In other instances, the conclusion might be more difficult. Further, whether information is “about an individual” might depend upon the breadth that is given to the expression “from the information or opinion”. In other words, the more loose the
causal connection required by the word “from”, the greater the amount of information which could potentially be “personal information” and the more likely it will be that the words
“about an individual” will exclude some of that information from National Privacy Principle 6.1

In other words, there must be more than a link between information and an individual for the information to be “personal” information. The information must also reveal something “about” the person in a way that engages a reasonable expectation of privacy. I am not sure whether this “guts” the rights provided by the Australia Privacy Act as reported, but this reasoning has been a feature of Canadian law, most notably supported in our Federal Court of Appeal’s Nav Canada case – an authority the Australian court relied upon in determining the outcome of Mr. Grubb’s access request.

Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 (19 January 2017).

OPC issues important decision for federally-regulated employers on access to “mixed personal information”

1 Jan

Federally-regulated employers should pay heed to OPC report of findings 2013-004, issued in July 2013. It contains the most detailed guidance on how to administer requests for access to personal information about employees that is received from other employees in confidence – information sometimes called “mixed personal information.”

The OPC adopts the case-by-case balancing of interests approach endorsed by the Federal Court of Appeal in a Privacy Act case called Pirrie: “In determining the right to have access to this information under PIPEDA, the interests of the individuals concerned should be balanced against each other along with the public interest for and against disclosure.”

This test does not support a “bright line,” so the OPC guidance is welcome. It uses 2013-004 to distinguish between two scenarios:

  • The OPC held that notes containing peer feedback that an employer received in conducting a routine performance feedback process were exempt from the right of access. It helped that the employer had provided the complainant with a high-level summary of feedback and helped that the complainant himself had expressly promised to his peers that their feedback would be given anonymously.
  • The OPC distinguished its prior treatment of information gathered in an internal investigation from witnesses when the investigation led to the complainant’s dismissal from employment. The OPC affirmed the complainant’s right of access in this scenario, but specified that the complainant required access to her personal information “as part of her efforts to be re-instated in her position,” which suggests that the complainant had either commenced litigation or that litigation was reasonably contemplated. The OPC also noted, “there were no formal assurance made that the information the investigation participants provided would be kept confidential.”

This gives federally-regulated employers some indication of the OPC’s perspective on a common and significant access issue, though the analysis invited by the Pirrie test is very contextual and outcomes will differ based on a wide range of potentially relevant facts. While the OPC’s decision on access to information gathered from witnesses in an internal investigation might be of some concern to employers, employers cannot provide witnesses with an absolute promise of confidentiality given witness statements may be producible in litigation. If the OPC decision merely suggests that witness statements are likely to be accessible under PIPEDA when litigation is reasonably contemplated it will be rather harmless in its impact.

Bank provides former employee with insufficient access to his personal information, 2013 CanLII 71855 (PCC).

IPC says full balancing applies in mixed personal information cases

30 Nov

On September 27, 2013 the Information and Privacy Commissioner/Ontario issued a significant decision on the exemption from the right of access to personal information in section 38(b) of MFIPPA (and 49(b) of FIPPA by implication) by finding that a disclosure that is presumed to constitute an unjustified invasion of privacy for the purpose of answering a general records access request is not so presumed for the purpose of answering a request for access to one’s own personal information.

Individuals have a right of access to their own personal information that is in the custody or control of Ontario institutions subject to a number of discretionary exemptions, including an exemption that applies if “the disclosure would constitute an unjustified invasion of another individual’s personal privacy.” This exemption often arises in cases in which individuals seek access to personal information about themselves that is contained in complaints and incident reports (which record information from witnesses, complainants and others about more than one person).

The “unjustified invasion” question is informed by the mandatory exemption for unjustified invasion of personal privacy that applies to “general records” access requests. The mandatory exemption includes a provision that deems certain disclosures to be a presumed unjustified invasion. Here is the MFIPPA provision:

14(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels;

(d) relates to employment or educational history;

(e) was obtained on a tax return or gathered for the purpose of collecting a tax;

(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;

(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or

(h) indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations.

In Seguin Township, Adjudicator Cropley held that the application of this deeming provision does not end the analysis in a personal information request as it does in a general records request. A head should go on to consider the other relevant factors (including those listed in the Act) to determine if, on the balance, the invasion of privacy to the person other than the requester is “unjustified” in the circumstances. Adjudicator Cropley said that her interpretation consistent “legislature’s intent in creating a separate, discretionary exemption claim that makes a distinction between an individual seeking another individual’s personal information and an individual seeking his own personal information.” It invites both greater access to personal information and greater uncertainty in dealing with access to personal information requests.

Seguin (Township) (Re), 2013 CanLII 64274 (ON IPC).

Case Report – Federal Court comments on remedial power to redress PIPEDA violation through corrective order

28 Sep

On September 24th, the Federal Court made the following comment in dismissing a PIPEDA application that sought, among other things, an order requesting correction of a record of personal information:

Section 16 of the Act limits the Court’s remedies of ordering corrective action or notice thereof to an organization’s practices. The type of corrective remedy the Applicant requests is not related to the Respondent organization’s practices. Practices generally mean the organization’s usual business methods or procedures. As a result, the Applicant’s request falls outside the scope of the Court’s remedial power under s. 16 of the Act.

Soup v. Blood Tribe Board of Health, 2010 FC 955.