Privacy Law and Policy Reporter
The Act requires that public bodies only collect information necessary for carrying out their duties. This information must not be released without the consent of the individual concerned. The guidelines cover a range of record-keeping activities:
The Commission has also established guidelines for the circumstances in which elected officials and members of boards of directors may access records which contain personal information.
Many of Quebec's statutes governing public bodies give elected officials and members of boards of directors a range of responsibilities and powers which enable these individuals to access the files of the public bodies which they manage. These files may contain personal information which is not generally available to others. The guidelines state that no such official or member of the board of directors should use such access rights for personal purposes, and that any access to files of personal information should reflect the wishes of at least the majority of members of the institution. Other statutes confer special independent powers on mayors and members of cabinet, allowing them to consult personal information files on their own initiative without seeking the permission of the decision-making body. Organisations should also determine the categories of persons who have access to personal information files, and the organisation should be open about the content of these categories.
An employer who acts as an insurer under the disability insurance plan established in the public sector, may require that a diagnosis be shown on a medical certificate. After hearing a wide range of complaints, the Commission determined that such access was necessary for the insurer to determine whether coverage applies and the likely duration of the disability.
The Commission notes that in balancing management interests with individual rights, the Commission did not have clear legislative provisions granting or denying the employer the right to access employees' medical records. '[T]he concept of necessity conveyed by the Act ... also had its limits and that it should be interpreted according to relative and contextual criteria.' The contextual criteria used by the Commission involved the charters of human rights and freedoms, and traditions relating to labour relations in Quebec.
Access rights should be restricted to individuals in specific categories, such as those responsible for implementing the guide to assessing periods of absence due to disability; the public body's medical officer; and the personnel manager, if the information is necessary in resolving an issue related to the file. However, the personnel manager is explicitly prevented from obtaining an employee's psychiatric record.