Civil Liberties Group Urges Changes to Law to Better Protect Privacy in Contracting Out and Third Party Disclosures

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The B.C. Civil Liberties Association is calling on the provincial government to better protect British Columbians’ privacy by rewording amendments to Bill 13 which amends the Freedom of Information and Protection of Privacy Act.

The BCCLA has two concerns about Bill 13’s proposed amendments to section 33 of the Act.

First, the BCCLA is concerned that the wording of amendment will oblige public bodies to disclose personal information when requested by third parties as set out in paragraph (a) – (r) of section 33. The current wording allows public bodies to choose whether or not to release personal information. Of particular concern to the Association are attempts by law enforcement agencies to obtain personal information without a warrant, for example from hospitals. Before the proposed changes, at least public bodies decided whether or not to release the personal information. After the changes, they may have no choice.

Second, the Association is concerned that the stated intent of the amendment – to bind third party contractors that provide data processing and services on behalf of government, to protect personal information in the same way the government is required to do under the Act – is not achieved by the language of the amendment.

According to BCCLA Executive Director Murray Mollard: “We are asking the government to make sure that the language of the amendment clearly remains permissive and achieves its intent. The current amendment is at best ambiguous and at worst will result in the loss of privacy for many British Columbians. We also want to see more clear protection in the case contracting out services given this government’s greater appetite for outsourcing.”

Last Friday, the BCCLA wrote Sandy Santori, the Minister responsible for the legislation, expressing our concerns. Our letter is attached. For now, the government does not appear to be willing to budge. The matter was also raised in the legislature during debates on second reading of the Bill yesterday.

Bill 13 will generally make the administration of the Freedom of Information and Protection of Privacy Act easier for government. And though the BCCLA has no objection to this, we have been asking for changes to the Act for some time to enhance access and privacy vis-à-vis the public sector. Those changes have not been forthcoming. …/2 BCCLA Press Release March 5, 2003 Page 2

Meanwhile, the BCCLA is also awaiting new privacy legislation that would protect personal information in the private sector. The Association is hopeful that Minister Santori will carry through on his promise to create a made in B.C. law that would supplant the federal government’s Personal Information and Electronic Documents Act, which is scheduled to apply to otherwise provincially regulated organizations by January 1, 2004.

February 28, 2003

The Honourable Sandy Santori

Minister of Management Services

P.O. Box 9063, Stn Prov Govt

Victoria, B.C.

V8W 9E2

BY FAX: 250-356-2960

Dear Mr. Santori:

RE: Section 10(a) of Bill 13: Freedom of Information and Protection of Privacy Amendment Act

I am writing to urge you to amend section 10(a) of the Freedom of Information and Protection of Privacy Amendment Act (the “Act”) which was introduced recently into the Legislature.

This paragraph amends section 33 of the Act by striking out “A public body may disclose personal information” only … and replacing it with “A public body must ensure that personal information in its custody or under its control is disclosed” only …

We are concerned that the wording of this amendment fails to achieve its objective, whatever that may be, and moreover will undermine the discretionary nature of the provision.

First, by dropping the word “may” and inserting the words “must ensure”, the section will, at best, have the unintended effect of causing confusion about whether it is permissive or mandatory and at worst making it a mandatory provision. We strongly believe that the section must remain permissive: public bodies must retain discretion regarding whether or not they will disclose personal information subject to paragraphs (a) – (r). Though some of those paragraphs themselves may eliminate the public bodies’ discretion (e.g. complying with a subpoena or warrant) others must remain discretionary to ensure that public bodies protect personal information, a fundamental purpose of the legislation.

Second, the government’s underlying intent of the amendment is unclear. We have discussed the wording of the amendment with David Loukidelis, Information and Privacy Commissioner and with Chris Norman, Director, Corporate Privacy and Information Access Branch. Disturbingly, each individual has a significantly different interpretation about the underlying intent of the amendment. To: The Honourable Sandy Santori From: John Dixon and Gerry Fahey Date: February 28, 2003 Page: 2

As we understand the two individuals’ views, Mr. Loukidelis interprets the amendment to seek to impose an obligation on public bodies to takes steps (e.g. enter into contractual agreements, undertake audits) to ensure that personal information that is disclosed to contractors who perform services for the government will be protected by the provisions of the Act. Mr. Norman in contrast has indicated that the intent of the change is to clarify that government may enter into such agreements to respond to a concern that the Act’s current wording may preclude the government from doing so. According to Mr. Norman, it would then be a matter of government policy to create contractual agreements to ensure that contractors comply with the Act.

To be candid, in our view, neither of these objectives can be discerned from the wording of the amendment.

For the record, we believe that, given the government’s desire to outsource more of its services, it is important to have a clear and binding obligation on the government to promote compliance with the Act by contractors and in turn to bind contractors to the provisions of the Act. To that end, we agree with the objective identified by Mr. Loukidelis. However, the ambiguity in the amendment language simply does not achieve this purpose and, even worse, it arguably causes another unintended effect.

In sum, section 10(a) of Bill 13 needs to be clarified. We urge a floor amendment to reword the Bill: (1) to make it clear that public bodies retain a discretion to disclose, subject to section 33, paragraphs (a) – (r); and (2) to make it clear that the government is under an obligation to promote compliance by contractors with the Act and that to make it clear that contractors themselves have a legal obligation to comply.

Given that Bill 13 will likely receive second reading next week, this matter requires your urgent attention.

We look forward to hearing from you shortly.

Yours sincerely,

John Dixon,

President, BCCLA

Gerry Fahey,

President, Freedom of Information and Privacy Association

cc: David Loukidelis, Information and Privacy Commissioner

Chris Norman, Director, Corporate Privacy and Information Access Branch