Yesterday, the Privacy Commissioner of Canada tabled her annual report on the Privacy Act. While she came down hard on a number of federal bodies such as the passport office, one aspect of the report should be of interest to lawyers generally.
The Commissioner reports on a whole range of complaints against tribunals and quasi-judicial bodies for publishing sensitive personal information about parties and non-parties. Decisions and tribunal records have always contained such information, but now that more of these decisions are readily available online, complainants are not happy that searching for their names online will bring up these decisions in the results.
The Commissioner is hampered by the fact that she can’t order them to change their practices and that many of the disclosures are arguably permissible under the Privacy Act. In any event, she has issued a number of recommendations that have been ignored by many of the tribunals at issue:
- Reasonably depersonalize future decisions that will be posted on the Internet through the use of randomly assigned initials in place of individuals’ names; or post only a summary of the decision with no identifying personal information.
- Observe suggested guidelines respecting the exercise of discretion to disclose personal information in any case where an institution proposes to disclose personal information in decisions in electronic form on the Internet.
- Remove decisions that form the basis of the complaints to the OPC from the Internet on a priority basis until they can be reasonably depersonalized through the use of randomly assigned initials and re-posted in compliance with the Privacy Act.
- Restrict the indexing by name of past decisions by global search engines through the use of an appropriate “web robot exclusion protocol;” or remove from or reasonably depersonalize all past decisions on the Internet through the use of randomly assigned initials, within a reasonable amount of time.
And in case you were thinking this may sound somewhat familiar, the Canadian Judicial Council tackled this issue in its 2005: Use of Personal Information in Judgments and Recommended Protocol (PDF).