Just because an administrative tribunal could doesn’t mean it should
Increasing technology use and machine learning have resulted in improvements in efficiency. Electronic information, including data and algorithms, provides new opportunities for growth and expansion. It also means that increasing amounts of sensitive information such as data related to health, finances, and employment are producible if they become relevant to a matter in a legal proceeding.
The open court principle means that legal proceedings are presumptively open and accessible to the public. The Supreme Court of Canada has described it as “a hallmark of democracy and a cornerstone of the common law” (Vancouver Sun (Re), 2004 SCC 43 at para. 23). The open court principle is intended to foster public confidence, further understanding of the administration of justice, and promote transparency, accountability, and fairness in decision-making.
Although the open court principle is foundational to a justice system that serves the public, it also creates tension in regards to the individual’s fundamental right to privacy. The tension is amplified by the volume of data that can now be made available and the ease with which the data can be obtained. Whereas “open court” historically meant attending a hearing or reviewing paper records, it can now mean the anonymous searching, indexing, extracting, and repurposing of information databases.
It is easy to imagine how unscrupulous individuals could misuse “open court” information in a way that is not connected to the accountability of the justice system. For example, obtaining lists of names of accused persons and charges they face in order to sell them on the Internet (Alberta (Attorney General) v. Krushell, 2003 ABQB 252). Published decisions regularly include personal information such as parties’ names, financial summaries, health backgrounds, and employment disputes. Misuses of such sensitive information can certainly have serious consequences.
Administrative agencies and tribunals in British Columbia are generally subject to the Freedom of Information and Protection of Privacy Act (“FIPPA”) unless the Administrative Tribunals Act (“ATA”) applies. Tribunals that are not subject to the ATA must collect, use, and disclose personal information in accordance with FIPPA. If the ATA applies to a tribunal, however, FIPPA has limited application and the tribunal does not need to consider personal information in the same way.
Whether or not a tribunal is subject to FIPPA, it should be mindful that information that is shared is impossible to take back, particularly when data can be aggregated, decoded, and reused. Individuals’ concerns about the sharing of their personal information can even erode the process itself if individuals cease to engage with it. So how can competing interests be balanced to limit the consequences of sharing unnecessary information?
- Take time to consider the type of information that is truly needed to support a conclusion. For example, it might be enough to indicate an individual was hospitalized without detailing the reason for the hospitalization.
- Ask the individual if there is particularly sensitive information that might be harmful if included and provide them with an opportunity to identify their areas of concern. It allows the issue to be raised, even if it is later determined to be essential to include it.
- Set policies regarding the collection, use, and disclosure of information so that minimum amounts of data are handled to achieve the intended purpose. If information is not collected, it will not be improperly disclosed.
At the end of the day, it is the decision-making process that needs to be open and accessible, not the information of the individuals – particularly vulnerable individuals – who become part of the process. The question is not an individual’s reasonable expectation of privacy but whether a tribunal that is enabled to publish personal information can protect the privacy of individuals while still maintaining an open process. After all, “knowledge by others does not transform the nature of the information itself” (University of British Columbia (Re), 2013 BCIPC 4 at para. 38). Every individual is deserving of privacy, process, and dignity.
Lisa Picotte-Li is Legal Counsel at Technical Safety BC. She advised on administrative proceedings and privacy compliance. The views set out above are those of the author.