Flaherty, David H --- "Balancing open government and privacy protection" [1999] PrivLawPRpr 56; (1999) 6(5) Privacy Law & Policy Reporter 68

Balancing open government and privacy protection

Being more transparent
Conclusion

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Balancing open government and privacy protection

Professor David H Flaherty

I start with the fact that I only ceased to be Information and Privacy Commissioner for the Province of British Columbia, Canada, on 31 July 1999. During a six year period, I wrote approximately 3000 pages of decisions that sought to balance the competing values of data protection and open government. At this point, I do not have any distance or perspective on my recent work, nor has it been the subject of academic analysis, which I regard as essential.

Being more transparent

The statutory goals of the BC Freedom of Information and Protection of Privacy Act (the Act) are to ‘make public bodies more accountable to the public and to protect personal privacy ...’ (s 2; statute and decisions available at <www.oipcbc. org>). These dual purposes create an inherent tension, so balancing is always required. In practice, I found few problems achieving such a balance during my six year term of office as Information and Privacy Commissioner for British Columbia (1993-99).

My conscious goal in the 322 decisions that I wrote was to promote open, accountable government. My secondary goal in decision writing and, especially, policy advice was to encourage a privacy friendly environment. I readily admit that I regard the promotion of freedom of information as the dominant value in this equation.

The process of promoting open and accountable government, put simply, involved me interpreting, and my professional colleagues applying, the language of the Act in literally thousands of cases, since the Legislature itself established the standards to be used in balancing the competing interests at stake. Of course, I enjoyed some discretion and latitude in my decisions — subject to judicial review, which I regard as an important check on the power entrusted to a Commissioner in a regulatory model.

I found over the course of my term that it was beneficial, when balancing competing interests, to have a single person serving as Information Commissioner and Privacy Commissioner, as is the model for the Canadian provinces and territories (but not the federal government). Thus I applaud the UK decision to make the Data Protection Commissioner (Registrar) responsible for the oversight of the draft Freedom of Information Bill as well.

Some of my decisions essentially sacrificed the traditional privacy interests of individuals to the goal of promoting open government.

• For example, the decision to disclose to the media severance payments made to individual staff during the closure of Shaughnessy Hospital in Vancouver (Order No 24-1994, 27 September 1994). My basic guiding principle, as displayed here, was that the public has a right to know how its money is being spent. Similarly, I ordered the disclosure of the specific amount of a severance payment made to a terminated fire chief, but not the personal details of the settlement beyond that amount, such as pension allocation, payment for counselling services and so on (Order No 173-1997, 14 July 1997).
• A more delicate and complex example of balancing is found in Order No 27-1994, 24 October 1994. There I found that a protected ‘core of privacy’ surrounding the suicide of a young girl while in the custody of the state should prevent the disclosure of her diary to the media. However, I did allow for the disclosure of information that revealed the nature of the review of her death conducted by the institution in question, because of the obligation of accountability of a psychiatric institution to the public under the Act.

Because of my background as a privacy advocate, commentators on my appointment thought that I would be biased towards privacy protection. I believe that an objective review of my decisions would indicate that this did not prove to be the case. I give first priority to openness and accountability for general information held in records, subject to the protection of individual privacy set out in s 22 of the Act. My goal was to promote the disclosure of general government information while protecting the privacy interests of individuals.

Because s 22 is so important a guide for decision-making under the Act, I present here a brief statement of what it says, lest it be thought that the process is very subjective. Whether in civil or common law jurisdictions, the goal has to be to obtain a strong Freedom of Information and Protection of Privacy Act and then apply it to concrete situations that arise.

Section 22 has three (admittedly confusing) categories of criteria for establishing if a disclosure of personal information would be an unreasonable invasion of the privacy of a third party:

• Section 22(2) sets out eight categories that the head of a public body must consider as ‘relevant circumstances’ in determining whether an unreasonable invasion of privacy may exist. Three examples of subsections provide the flavour of them:

(c) the personal information is relevant to a fair determination of the applicant’s rights, ...

(e) the third party will be exposed unfairly to financial or other harm,

(f) the personal information has been supplied in confidence ...

• Section 22(3) specifies disclosures of personal information that are ‘presumed to be an unreasonable invasion of a third party’s personal privacy’, such as:

(a) the personal information relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation,

(b) the personal information was compiled and is identifiable as part of an investigation into a possible violation of law,...

(d) the personal information relates to employment, occupational or educational history, ...

Many of my decisions involved the application of s 22 to personal information found in general records in dispute. This requires a balancing of competing interests, subject to the specific statutory provisions already outlined.

• Thus the salaries, expense accounts and job descriptions of public servants at all levels of government are public information, but job performance, resumés and so on are not. In Order No 161-1997, 1 May 1997, I found that personal details concerning an individual could be severed from expense accounts, such as movies watched in a hotel room or telephone numbers that were called.
• I also decided that a school district did not have to disclose to parents the specific disciplinary measures taken against a teacher (Order No 62-1995, 2 November 1995). However, if a professional body, such as the College of Physicians and Surgeons, takes disciplinary action against a member, then that information is to be made public (see Order No 221-1998, 16 April 1998).

My goal was to promote a privacy friendly environment in the province by not disclosing intimate or salacious details of any individual, especially to the media. Our advisory work on the public reports of the Children’s Commission about deceased children is a model in this regard — see <www.childservices.gov.bc.ca>. I am pleased to report that neither the Children’s Commission nor my office were criticised for our work in this regard.

There is a public interest test for disclosure of personal information under s 25, titled ‘Public Interest Paramount’, which supersedes any other exception in the Act. To date, I have simply required public bodies to show evidence that they have considered this exception in reaching a decision. Some critics believe that I should have myself ordered disclosure of information on the basis of this section. The legal advice that I received was that I could not so act.

This section, or s 33(p) [‘A public body may disclose personal information only if the head of the public body determines that compelling circumstances exist that affect anyone’s health or safety ...’], is primarily used by law enforcement bodies, including the Corrections Branch, to notify the public, either generally or in a very specific class (such as parents of children living near a particular school) of the presence of a predatory sex offender in the community. Our role was to examine the evidence promoting disclosure in advance of its occurrence. My impression is that the incidence of such disclosures was between six and 12 times per year.

I considered this issue of balancing confidentiality versus disclosure in Order No 221-1998, 16 April 1998, which involved the CBC’s request for access to records from the College of Physicians and Surgeons about allegations of misconduct against a physician that had become public knowledge. I wrote in a 30 page decision:

I agree fully with the College with respect to the following: ‘The determination of what information should be made public requires an appropriate balance to be struck between the rights of the public to know, to the extent necessary to ensure their protection, and the rights of the physician to a fair level of protection of privacy and due process according to the specific circumstances of each case’ (Submission of the College, para 51).

That is essentially the approach that I am required to take in reaching my decision. My role under the Act is to act as a check on the balance that the College strikes in a particular case, as I proceed to do below by applying the Act.

It is worth emphasising that, for a substantial decision like this one, my personal views on the desirability of disclosure in a particular case are very much subordinate to the specific requirements of the Act, but I did subject the disciplinary procedures and practices of the College to a thorough review from the perspective of the Act.

I think it would best illustrate my approach to balancing privacy and open government to discuss my Order No 309-1999, 22 April 1999, in more detail. Essentially, I upheld a decision of the West Vancouver Police Department not to release the name of an accident victim to a reporter for a local newspaper. In summary form, here is what happened.

The police refused to release the name of the 86 year old victim on the grounds that disclosure would be an unreasonable invasion of her privacy. Additionally, the police argued that disclosure would invade the privacy of the victim’s family, who did not want the name released.

At the written inquiry, the reporter questioned the degree to which a deceased person has privacy rights, as well as the motives of the next of kin in not wanting the name released. The reporter also argued that the victim’s name should be released on public interest grounds, stating: ‘I respectfully suggest that a car accident that results in a person’s death on a public street relates to community safety and is of public interest ... I suggest that the name of a deceased person in a traffic accident is an important component of the full facts of a news story ...’.

I agreed with the Police Department’s argument that disclosure of the name of the deceased does not further, and is not necessary for, the promotion of public health or safety. It is sufficient that the details concerning the location and circumstances of the accident were disclosed. ‘I do not accept that a newspaper story is less credible simply because the name of the victim has not been disclosed.’ I also concluded that the deceased does have privacy rights and that the privacy of the deceased’s family may be compromised by release of the victim’s name.

I am pleased to be able to inform you that the press did not take my office to judicial review on this decision (at least so far). In addition, I made a very particular decision that reflected the emotive power of an in camera submission from a close relative of the deceased. I did not pontificate as to what particular set of circumstances should militate in favour of disclosure of accident victim information, for example, preferring, as was my custom, for the municipal police forces in the province to make that decision on their own, reflecting their own best practices and experiences.

I also made this specific decision against the media, so to speak, with full understanding and newfound appreciation of the central importance of the media, in all its forms, for the promotion of an open accountable society. In this connection, I would like to quote what I wrote about the importance of the media in my final message as Information and Privacy Commissioner for British Columbia:

I wish to close on a note of high praise for the media in this country, in at least partial response to the recurrent attacks on them by politicians in particular. I am not thinking here of the issue of trying to balance competing interests of accountability and privacy in the dozens of decisions that I have made in response to media requests for access to information. Nor am I selfishly reflecting my strong sense that the media would have had to be my ultimate defenders, as surrogates for the public, if the politicians and government of this province had chosen to turn against the Act by, for example, abolishing it. There have been times when I did not regard this as an idle threat. At the end of the day, my privileged vantage point of the past six years has fully persuaded me that a free press is absolutely fundamental to the preservation and advancement of an open and democratic society in British Columbia and Canada as a whole. Becoming fully persuaded of what may strike some as a truism has been an added benefit and lesson from my experience of public office. It has been worth it.

Conclusion

I take considerable satisfaction in being able to say, after six years in public office, that, in the words of the late lamented Frank Sinatra, ‘I did it my way’. I made decisions in specific cases that were highly unusual (one in 10) in the sense that my professional staff of portfolio officers had not mediated them. In particular, I limited my decisions to the specific circumstances before me, and I avoided overly broad language that might come back to haunt me at a later date. I also had the very important benefit of receiving detailed submissions from applicants and public bodies on the application of specific sections of the Act. The specialists in the Legal Services Branch of the Ministry of Attorney General were especially thorough and perceptive in this regard in representing central government. They reminded me of both my own precedents, or those of other Canadian provincial Information and Privacy Commissioners (especially Ontario), and of the general principles of statutory interpretation applicable to my work as a decision-maker. More importantly, they made cogent statements of facts and coherent arguments.

In terms of the theme of this presentation, I will admit that it took me some time to accept the limits of what personal information I could disclose to ‘worthy’ applicants. In the Saturna Island decision, I thought that the name of an anonymous complainant against the Recycling Committee of the Saturna Island Community Club should be disclosed to the ‘aggrieved’ or perceived victims, because of what I thought were ‘peculiar’ circumstances. The Supreme Court of British Columbia decided otherwise: Order No 36-1995, 31 March 1995; J Doe v British Columbia (Information and Privacy Commissioner), [1996] BCJ No 1950 (BCSC). In another decision, I ordered disclosure of the identity of an ‘expert’ to a female applicant who had complained to a public body against a psychiatrist. My implicit rationale was that a judge should pass judgment on what had transpired. The judge who reviewed the same records decided not to do so, or perhaps that she could not do so: see Order No 144-1997, 17 January 1997; Greater Vancouver Mental Health Services v British Columbia (Information and Privacy Commissioner), [1999] BCJ No 198 (BCSC).

A final brake on my decision-making and balancing activities deserves mention. My office functioned in a highly collegial manner. After I drafted a decision, for example, I asked a specific staff person and, usually, outside counsel to review my draft. Occasionally, more than 10 or 15 drafts emerged from this process. At a certain point in the process, every professional staff member had the opportunity to review the draft text of an order. There were lengthy debates on occasion and very detailed and sometimes emphatic ‘suggestions’ for revision. I think that I changed my mind completely on disclosure on at least a few occasions. I say this with considerable pride, because I believe that the end result was practical, common sense decisions that balanced open government and privacy protection and were understandable to applicants, public bodies, and the people of British Columbia. Contrary to media headlines, I was not really an Information Czar!

Professor David H Flaherty, PhD, was the first Information and Privacy Commissioner for British Columbia (1993-99). He is now a privacy and information policy consultant based in Victoria, British Columbia, Canada. He is a Professor Emeritus, University of Western Ontario and an Adjunct Professor at the University of Victoria. His contact information is: 1939 Mayfair Drive, Victoria, BC, V8P 1R1; <[e-mail]>.

This paper was originally delivered at the International Symposium on Freedom of Information and Data Protection, Potsdam, Germany, October 25-26, 1999. Earlier versions were delivered at the Privacy Laws and Business Conference, Cambridge, UK, 13 July 1998; the 5th Annual Conference of the Office of the Information and Privacy Commissioner for BC, Vancouver, BC,

30 October 1998; and the International Meeting of Privacy and Data Protection Commissioners, Hong Kong, September, 1999.