What topics will be covered?

• Overview of access to information 101: the basics
• The 3 vantage points: public bodies, applicants & third parties
• Review of recent cases/headlines
• Identifying key legal and PR landmines
• Discussion of trends in access to information
• Practical tips for managing requests in a cost-effective manner

Who should attend?

Public bodies who are subject to access to information laws, private-sector organizations who regularly deal with public bodies and individuals/organizations who routinely initiate access to information requests under public sector access to information laws. 

When is the webinar? 

Wednesday, January 26th, 2011 from 1 – 2 PM (CST)

Please register <here> (space is limited)

Manitoba’s Ombudsman is investigating these explosive allegations. If they are true, it is very hard to image a legal defence. But can the use of covert video surveillance ever be legal?

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Irene Hamilton, and her team of professionals at the Office of the Manitoba Ombudsman (the Ombudsman’s Office”), provides excellent service to Manitobans. Thanks to Irene Hamilton’s leadership, the Ombudsman’s Office has made a number of improvements to its operations over the years. I’m looking forward to seeing the changes to the Ombudsman’s Office website referenced below.

Thanks to Irene Hamilton for agreeing to engage in this online Q & A conversation.  If you’d like to learn more about Irene Hamilton, the Ombudsman’s Office, or the issues raised in this conversation, I’d encourage you to visit the Ombudsman’s Office website.

Q.  In most other provinces, privacy oversight is performed by an Information and Privacy Commissioner. How does the role of the Ombudsman compare to these positions?

A.  In Manitoba, the Ombudsman is the Information and Privacy Commissioner as well. The role and function of the Ombudsman is similar to 10 of the 15 federal, provincial and territorial jurisdictions in Canada that have access to information and protection of privacy laws. In these 10 jurisdictions, the Information and Privacy Commissioner has “ombudsman” powers – that is, the power to comment proactively, investigate complaints and make recommendations to public bodies, but not the power to issue orders. In Prince Edward Island, Quebec, Ontario, Alberta and British Columbia, the Commissioners can issue orders in relation to access to information and protection of privacy.

There are other differences among the jurisdictions as well. With The Personal Health Information Act or “PHIA”, Manitoba had the first information privacy statute in North America dealing specifically with personal health information (as opposed to Manitoba’s Freedom of Information and Protection of Privacy Act, or “FIPPA”, that concerns access to and privacy of other kinds of information). Four other Canadian provinces have enacted similar legislation to PHIA since 1998, when PHIA first came into force here.

Q.  The Freedom of Information and Protection of Privacy Act (“FIPPA”) includes, as its title suggests, both access to information and privacy mechanisms. On the face of it, these two terms seem inconsistent. How do we bring them together?

A.  The application of the provisions of FIPPA do not create the inconsistency that one might infer from the title.

FIPPA has a set of rules concerning access to information and a set of rules concerning privacy of personal information. These two sets of rules are contained in two distinct parts of the Act and are administered separately.

There is a set of rules on how an individual can formally request access to a particular record under the control of provincial and municipal governments and other public bodies and how the public body is to respond. The general rule is that an individual has the right to see or receive a copy of the requested record, but specific exceptions can apply. One of those exceptions relates to protecting the privacy of information about another individual. The idea is to provide as much of the requested information as possible. This particular set of rules is triggered only when a person makes a formal FIPPA request for information.

The other set of rules in FIPPA is always in operation. These rules set out how provincial and municipal governments and other public bodies are to handle records containing personal information that are in their control while conducting their duties. These rules describe in what situations a public body can collect, use or share personal information and the basic rule is that the most limited amount of personal information necessary is to be handled for a particular situation. While an individual can expect certain privacy, there are specific situations where records about them can be collected, used or shared without their consent — for example for safety, public policy and specific operational reasons.

Q.  Your office supports the “Right to Know” initiative. What is “Right to Know” about and why do you support it?

A.  “Right to Know” is an international celebration observed annually in late September, to remind people that governments have legislation allowing people to obtain information held by government and other public bodies. The right of access, when used by individuals or organizations like media, helps to improve knowledge about government, scrutinize government and address public issues. “Right to Know”, with its public events and media focus, reinforces the commitment to a culture and spirit of openness, and promotes public awareness of access to information principles and the resources that assist in adherence to the legislation.

Q.  Manitoba, like other provincial governments, has introduced Enhanced Identification Cards (“EIC”) to respond to increased security demands at U.S. border crossings. What role has your office played in the development and rollout of EICs?

A.  Together with my Privacy Commissioner colleagues, I am of the view that the Enhanced Identification Card or “EIC” — a voluntary identity document for entry into the U.S. by road or water — raises privacy implications. I am pleased to say that my office was consulted early in the development of the Manitoba Enhanced Identification Card and we continued to be involved as the Manitoba Enhanced Drivers License was introduced as well. Through our participation we wanted to accomplish two main goals: 1. to fulfill our oversight role in relation to new government programs or initiatives by providing our comments to ensure the protection of personal information to the extent possible; and, 2. to bring the perspective of the public to the process by asking questions that people might have. In the process, we have promoted providing detailed information to the public so that they can determine if the EIC or EDL is the right card for them. We have also produced a “privacy awareness fact sheet” for persons considering obtaining an EIC or EDL.  This is on our web site, at www.ombudsman.mb.ca.

Q.  Your office releases summaries of selected access and privacy cases on its website. What is the most common area you investigate and report on?

A.  One of our goals for this year is to redesign our website and include regular postings of our reports online for the reference of information privacy professionals as well as the public that will provide a better understanding of how we interpret various sections of the acts, and the basis upon which we come to our conclusions. Having said that, since June 2005 our office has produced dozens of “practice notes” about interpreting and administering various sections and principles of FIPPA and PHIA, probably of greater interest to information privacy professionals than to the public. These, too, are on our Manitoba Ombudsman web site.

We find that the greatest number of complaints that we receive are refusals of access to information under FIPPA. This includes not only responses by public bodies refusing access, but also failures to respond to the applicant. Unfortunately, we also receive numerous complaints about privacy breaches under PHIA.

Q.  Looking forward, what kind of privacy developments should we watch for in 2010?

A.  The file that will be most time consuming for us will be privacy protection of personal health information in the electronic health record that has been under development in Manitoba and across Canada for some time. Significant funds have been made available to Departments of Health throughout the country to build electronic systems that will connect to provide instantaneous access to health records. The system is designed to promote better care and eliminate administrative repetitiveness. Our view is that the public needs to understand what the electronic health record or “EHR” is, its scope and how their personal health information will be used and shared within that system.

Read more>>

The above link takes you to the Winnipeg Sun.  I’m delighted to have been asked by Sun Media Corp. to provide Comment columns like today’s on a monthly basis.  I hope you find them of interest!

Courtney’s paper, entitled “Bill 219: An Insurmountable Goal”, argues that the law is necessary in order to “effectively protect the privacy rights of all Manitobans”.  The paper outlines the main features of the Bill; examines the role of PIPEDA and the concept of “substantially similar” legislation; and analyzes the main arguments advanced for and against the Bill, as expressed in Hansard and in the context of the Bill’s legislative history. Courtney also advances theories regarding the major impediments to its passing.

Courtney was a summer student at Pitblado LLP this past summer and will (fortunately for us) be returning in the New Year to complete her Articles.  Thanks to Courtney for sharing her paper, which you can read by clicking on the hyperlink below.

Bill 219: An Insurmountable Goal

The application of PIPEDA is dependent on the existence of a “commercial activity.” Although this term is vague, the case is strong that most union activities are, in fact, captured by PIPEDA. What is certain is the application of Alberta’s privacy legislation, the Personal Information Protection Act (“Alberta’s PIPA”), to the management of personal information by unions. The application of Alberta’s PIPA is not dependent on the existence of a “commercial activity”. As a result, a 2006 Investigation Report from the Alberta Information and Privacy Commissioner found that the collection of personal information by unions in their general capacity subjects them to the requirements found in Alberta’s PIPA. Manitoba’s Bill 219, The Personal Information Protection and Identity Theft Protection Act (the “Manitoba Bill”) is modeled after Alberta’s PIPA. Similar to Alberta’s PIPA, the application of the Manitoba Bill does not depend on whether an organization is engaged in a “commercial activity.”

As I’ve argued in previous posts, the Manitoba Government should support the Manitoba Bill (which was introduced as a private member’s bill by opposition member, Mavis Taillieu). The Manitoba Bill creates a level of certainty with regards to the privacy rights of union members. That’s one of the many reasons why the Manitoba government should ”cross the picket lines” to privacy and support the Manitoba Bill in this fall session of the Manitoba Legislature.

Of the 198 new access complaints that were launched, 134 (68%) dealt with “refused access”. This indicates that the provincial government and public bodies either have to be more willing to grant access when requested or do a better job at explaining their rationale for refusing access. Of the 207 cases that were closed in 2008, 38% of the complaints were supported by the Ombudsman, 35% were not supported and 5% were resolved before the Ombudsman could issue a finding. This indicates that all of the complaints brought to the Ombudsman are not without merit. The public appears to have a relatively good understanding of what their rights are under FIPPA and PHIA.

The Ombudsman has also been proactively involved in the development stages of legislation and programs in order to address potential privacy issues. For example, the Ombudsman expressed concerns about the technology used in Enhanced Drivers Licenses (EIC). Radio Frequency Identification chips store the necessary information on the EICs, but the chips are always “on”, meaning that they can be read by unauthorized individuals. This concern is being addressed by providing the cardholder with a protective sleeve. However, if the sleeve is ripped, torn or used improperly, it will not provide the necessary protection. Therefore, the Ombudsman has stressed that it is essential that individuals understand the privacy implications of opting into the EIC program.

The Ombudsman was also been involved in assessing the use of closed-circuit television monitoring by Winnipeg Police, who have agreed to follow the recommendations of the Ombudsman and will not live-monitor the cameras and will work towards developing retention policies and technology to “sever” individuals from images which are not relevant.

Overall, the Ombudsman largely applauds public bodies and government agencies for addressing privacy concerns in the development phases of new programs and legislation. However, it is clear that public bodies need to do a better job of dealing with access requests.

It’s been a thrilling week for my colleagues at Pitblado LLP as it was announced earlier this week that we were to be the 1st Canadian law firm to be a guest blogger on the must-read slaw.ca.  Yours truly, three of my colleagues from our firm’s Information & Ideas Practice Group as well as our firm’s librarian each contributed one post a day this week to slaw.ca on cutting edge legal topics.  Here’s what we covered…

On Monday, I posted “What Would Happen If One of your Employees Posted a Video of an Irate Customer on YouTube?”, which I cross posted on my blog earlier this week.  The post highlights a YouTube video of an irrate customer as a reminder to Canadian businesses of the powers of new technologies such as YouTube and the corresponding need to protect against the dissemination of this type of video through employee privacy training and the adoption and enforcement of privacy and procedures.

On Tuesday, Carol Lynn Schafer posted “Do TOS Have the Final Word on our Fundamental Rights and Freedoms?”, which discusses the controversial effects of Terms of Service on popular websites such as Facebook and Twitter.  As Carol Lynn notes, Terms of Service should be drafted with the bigger picture in mind and can no longer be seen as standard agreements that can be treated with a one size fits all approach.

On Wednesday, Jolin Spencer posted “Whose Property Is It, Anyway?”, which discusses the questions that come into play when employees leave their positions.  For example, what can an employee take, and what must they leave, when they vacate their position? As Jolin points out, no business wants its intellectual property assets walking out the door with a former employee.

On Thursday, our firm’s librarian, Karen Sawatsky, posted “Legal Research Bootcamp – Winnipeg Style”, which discusses her experience collaborating with members of the Manitoba Bar Association and the Law Society of Manitoba to create a CLE for articling students on legal research. The Legal Research Bootcamp is a first for Manitoba students, and aims to bridge the gap between when students start their articles and when CPLED begins in the fall.

And last but not least, today Adam Herstein posted “Manitoba: Innovative Fighter of Child Sexual Exploitation”, which focuses on Manitoba’s recent enactment of The Child and Family Services Amendment Act (Child Pornography Reporting) (Manitoba) and how Manitoba is the first province in Canada to enact legislation that makes it mandatory for a person who encounters child pornography to report it to authorities.  Adam also notes that Canada has a national tipline called Cybertip.ca for reporting the sexual exploitation of children.

Thanks to slaw.ca for the opportunity to contribute!

The Bill has been introduced as a private member’s Bill by Mavis Taillieu of the Opposition Progressive Conservative Party of Manitoba. It seeks to regulate the collection, use and disclosure of personal information by organizations in the private sector and is intended to be “substantially similar” to the federal Personal Information Protection and Electronic Documents Act (PIPEDA).  It would also establish a duty for organizations to notify individuals who may be affected when the personal information an organization has collected is lost, stolen or compromised.  Such a requirement would be groundbreaking in Canada (notwithstanding Ontario’s Personal Health Information Protection Act, which has a mandatory breach notification requirement).

Regrettably, the Government of Manitoba indicated in the Legislative Assembly debate last week that it has two primary concerns with the Bill.  The first concern is that the Bill lacks an independent oversight body such as a Privacy Commissioner of Manitoba. Legislative rules prevent private member’s Bills from containing financial penalties and so the Bill could not contain such provisions.  However, the government could add those provisions in amendments.  In fact, I assisted with the drafting of the Bill and would happily provide the government with the relevant provisions. The second concern raised by the government is that the Bill would introduce legislation in Manitoba that (according to the government) would regulate activities in the private sector already governed by PIPEDA. However, PIPEDA does not apply to the activities of private sector organizations in provinces such as Alberta and British Columbia, both of whom have Personal Information Protection Acts, because PIPEDA does not apply where “substantially similar” provincial legislation exists.

The Bill was first introduced in 2005 and since that time the need for such a law has significantly grown.  It’s modelled after Alberta’s Personal Information Protection Act, which provides a more business-friendly and clear legislative scheme than PIPEDA.  As I’ve previously argued, it would be good policy for the Government of Manitoba to support the Bill and I once again urge them to do so. 

If you want a more business-friendly privacy law in Manitoba, I’d strongly encourage you to contact the Government of Manitoba and Mavis Taillieu to indicate your support. 

Additional coverage on this topic by the Canadian HR Reporter here.

If there are other Canadian privacy law conferences in the coming months that I haven’t listed, please post a Comment or drop me an e-mail so I can update this post. If you, or your industry association, are interested in more focussed privacy training, please let me know as I regularly conduct in-house privacy training sessions for clients.

But if you work for a private sector organization and haven’t yet signed up for the federal Privacy Commissioner‘s e-newsletter entitled Privacy Perspectives, I’d suggest you do.   It contains great information and helps to stay on top of things.

If you’re in Manitoba and work for a public body, the Winter 2009 Issue of Manitoba OmbudsNews was published last Friday on the Manitoba Ombudsman‘s website.  It’s also a great resource.

If you’re still in need of ongoing assistance and aren’t already a member of the Privacy Forum, you may want to touch base with me to learn more.  It has been a super venue over the last 6 years for information sharing and the current members are an excellent group of individuals and first rate privacy professionals.

I was asked yesterday to provide comment to the Winnipeg Sun on the validity of the government’s recent claim that it could not release the first administrative review into the tragedy because of privacy concerns. The story serves as a reminder to government bodies and businesses of the challenges (and need for expert legal counsel) when dealing with access to information and related privacy matters.

A separate story reported at TechCrunch demonstrates the risks when releasing redacted documents to the public.  Canadian privacy laws typically require organizations to blackout, or redact, portions of documents that contain someone else’s personal information unless that person consents to its disclosure.  It’s a time-consuming, but important, step that organizations need to take before disclosing documents under access to information legislation.  But, as this story points out, organizations need to be very careful about how they redact!

Privacy law update good: Job needs full-time commissioner

My May 7, 2008 column in the Winnipeg Free Press explains the difference between Manitoba’s Information and Privacy Adjudicator and a privacy commissioner, as appointed in almost every other province and at the federal level.

Ombudsman vital to public’s rights, but Doer forgets his 1999 promise to appoint a privacy commissioner

My December 5, 2007 column in the Winnipeg Free Press discusses the role of the Manitoba Ombudsman, and the need for a separate privacy commissioner.

Incubator nurtures local digital gaming

My February 13, 2008 column in the Winnipeg Free Press reports on Canada’s first digital gaming business incubator, Fortune Cat Games Studio, and its efforts to assist entrepreneurs in this potentially lucrative field.

Province failing on privacy issues; citizens deserve better protection

My May 2, 2007 column in the Winnipeg Free Press poses a challenge to the participants in the upcoming provincial election of May 22, 2007 to follow through on promises of a Manitoba privacy commissioner.

Feel you have no privacy? You’re not alone

My May 3, 2006 column in the Winnipeg Free Press examines the Manitoba Ombudsman’s 2003 report, which included a survey indicating that 60% of Manitobans believe that they have less personal privacy than they did in 1998.

Years after Doer’s promise, Manitoba lacks privacy commissioner

My October 4, 2006 column for the Winnipeg Free Press recommends the Manitoba government follow up on a campaign promise to create a Manitoba privacy commissioner as exists in almost every other Canadian province.