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Comment : The Protection of Personal Information in Tribunal Records – The Canadian Experience
(January 2007)
Colin McNairn, Chair of the Financial Services Tribunal of Ontario and co-author of books on the Law of Privacy in Canada talks about the protection of personal information in tribunal records from a Canadian perspective.
Should the records of adjudicative tribunals be closed to the public if they contain personal information about an individual? Canadian tribunals used to enjoy more or less unfettered discretion to make that call. If a party to a proceeding before a tribunal claimed that particular personal information should be protected from disclosure, the tribunal would weigh the public interest in maintaining the transparency of its processes against the individual's privacy interests. If it found that the privacy interests tipped the scale, it would make a confidentiality order to protect the individual's personal information in its records.
With the advent, over the last twenty-five years, of federal and provincial legislation for the protection of personal information, tribunals must now have regard to the statutory obligations to which government institutions are subject in the handling of their records of personal information. This legislation usually serves the additional purpose of affording a right of access, except in limited circumstances, to records of information held by government institutions. Those excepted circumstances include situations where the information is personal and its disclosure would result in an unreasonable invasion of an individual's privacy, taking into account certain enumerated factors. This has the effect of meshing the right of access and the right to privacy.
For the purposes of this legislation, the threshold question for a tribunal is whether it is an "institution" to which the legislation applies. For most, the answer is yes. The next logical question is whether its "records" are of a kind to which the legislation applies. In one Canadian province, British Columbia, a wide range of tribunal records is carved out of the definition of affected records. The excepted records include transcripts or recordings of a tribunal proceeding, records of information received by a tribunal at a hearing from which the public was excluded, and documents submitted in the course of a hearing and reasons for decision where access to that kind of material is provided by the tribunal. In the other Canadian jurisdictions, a tribunal's record of evidence, oral or documentary, does not have the benefit of an exception from the relevant definition of "records". Therefore, a tribunal to which the legislation applies must have regard to the statutory obligations to protect any personal information revealed by that evidence.
The evidentiary record before a tribunal may be generated in the course of an open hearing or a hearing that is closed - either generally or at the time the evidence is put forward. For the purposes of the Canadian legislation, the fact that the hearing is open to the public does not mean that personal information revealed in the course of the hearing is unprotected in the form in which it subsequently appears in the tribunal's record of the proceeding. If personal information is revealed in the course of a closed hearing, this does not mean that the tribunal may refuse to disclose its record of that information in response to an access request for it. Except in British Columbia, where the records of such information are excluded from the reach of the Act, the tribunal would have to determine that disclosure of the information would result in an unreasonable invasion of an individual's privacy, in the sense of the legislation, before refusing the access request. Indeed, if it found as much, it would be obliged to refuse that request. The bottom line is that the open or closed nature of a tribunal hearing does not, generally, determine whether personal information in the record of the evidence heard or admitted at the hearing must be protected from disclosure.
The Canadian legislation does not, typically, exclude a tribunal's reasons for decision from the records to which it applies. Yet those reasons may well include personal information about an individual that is important to the explanation of the outcome of the proceeding. The reasons for decision are, of course, of particular significance to the parties to the proceeding. The disclosure to those parties of the complete reasons for decision, including any personal information contained therein, is not, generally, precluded by the Canadian legislation. But the legislation seems to require that the personal information be edited out of any reasons before they can be given wider circulation if the tribunal does not have express statutory authority to publish its reasons. The only exception is in British Columbia where a record consisting of reasons for decision of a tribunal is not covered by the legislation if the tribunal, in fact, provides public access to those reasons.
There are two escapes from the prohibition against the disclosure of personal information under the Canadian legislation of which a tribunal may be able to take advantage. First, if the statute constituting the tribunal provides that the records of the tribunal are public, information in those records would be subject to disclosure. However, it is usually a tribunal's rules of practice that purport to establish the public nature of its records. Second, if the individual to whom any personal information relates consents, the tribunal records embodying that information may be disclosed. In most Canadian jurisdictions, that consent has to be express or in writing, but in four of those jurisdictions it can be implied by virtue of the conduct of the individual concerned. Therefore, if an individual is the applicant before a tribunal or has made a complaint that has triggered a tribunal proceeding, that individual may be taken to have given implied consent to the disclosure of any personal information relating to him or her provided to the tribunal in support of the application or complaint. These two escapes from the prohibition against the disclosure of personal information are not, then, generally available in the circumstances of most tribunals most of the time.
I believe that the Canadian experience demonstrates that a statutory regime for the protection of the privacy of personal information needs to be fine tuned in any application to tribunals and their records, which hasn't happened in Canada to date except in British Columbia. Otherwise, it is very likely to lead to uncertainties and to threaten the ability of tribunals to function in the full light of public scrutiny. In Canada, the courts have been completely freed of the constraints of legislation for the protection of personal information but tribunals have not. This leads to the anomalous position that personal information that is protected in the record of a tribunal proceeding becomes part of the public record when the tribunal record is certified to a court on appeal or judicial review of the tribunal's decision