A Chat With Chris Berzins on Administrative Tribunals, Privacy and the Practical Obscurity of Information

Chris Berzins is a long-time member of the Canadian administrative tribunal community and someone whose writings I’ve followed for some time. When he recently forwarded a copy of his most recent article – called “Administrative Transparency and the Protection of Privacy in a Digital Era,” now published in the May 2010 supplement of The Advocates’ Quarterly – I jumped on the opportunity to invite him to an interview.

We talked last week, and had a wide-ranging conversation that led me to conclude that Chris is a guy who has a very honourable commitment to seeing that administrative tribunals do things right. Here are some highlights from our chat, which I qualify by stating that the views Chris expresses are made only in his personal capacity and not as an employee of the Ontario Securities Commission.

Dan Michaluk: So why don’t you tell us a little bit about your background Chris.

Chris Berzins: I’m a 1984 graduate of Queen’s University Law School. I articled with the Ontario Labour Relations Board and then went right to the Ministry of Labour’s Policy Branch. I ended up managing the Ministry’s freedom of information and privacy office from 1988 through to about 2005, and after that I joined the General Counsel’s Office in the Ontario Securities Commission.

DM: What was it like to work with Ontario’s access and privacy legislation in its early days?

CB: We were a very high volume ministry on the access request side and had a lot of interesting issues come up on the privacy side too. When I got involved there were a lot of issues of first impression and I found that particularly interesting. I also have to say, frankly, that I found it frustrating too. The Information and Privacy Commissioner’s office had a unique opportunity to really address issues in a manner that would have laid the ground work for better things to come but, in my view, they failed to do that. I ended up writing a number of articles on judicial review of the IPC and why I thought it had become a problem.[1] This was part of my motivation for going back and doing an LLM in administrative law at Osgoode.

DM: You’ve written lots about the tension between administrative transparency versus individual privacy.

CB: Three articles in a row with at least one more to come![2] It’s a fascinating issue and I think my background – as someone who’s studied administrative law and been a privacy officer – allows me to see the arguments from both sides.

DM: Summarize your view then.

CB: I think it’s perfectly possible to strike the appropriate balance between administrative transparency and individual privacy. What agencies really have to do is think about what administrative transparency is mostly about. In my view that’s showing the wider public the manner in which the agency goes about making its decisions. You can do that without compromising the privacy of individuals who are appearing before you, keeping in mind that in some situations there may be a compelling public interest in making some personal information publicly available.

DM. Give us an idea when identity is relevant.

CB. There’s a spectrum of matters. Take benefit appeals, for example, where it is just an individual and an agency dealing with a factual question about entitlement. There no compelling need to disclose the appellant’s identity. A good example is the Ontario Workplace Safety and Insurance Appeals Tribunal. It has produced well reasoned and detailed decisions that don’t identify the appellant or, in fact, the appellant’s employer.

DM: And the other end of the spectrum?

CB: The Ontario Securities Commission has a clear statutory mandate to protect investors. You can certainly base a significant disclosure of personal information on that statutory mandate. Then you get probably a number of agencies that fall in the middle – the Ontario Labour Relations Board, for example, that adjudicates disputes between parties under a number of statutes. Agencies need to examine what it is they are doing, what their mandate is, what kind of personal information they are dealing with and then engage in a line drawing exercise. They need to figure out how they can meet those goals of transparency while protecting privacy.

DM: Is that happening?

CB: Certainly a number of agencies are addressing the issue but I get the feeling that in other cases some agencies are saying, “We have done it this way for a long time and we’re not about to change.” That’s not a satisfactory response in my mind.

DM: Who ought to lead administrative tribunals forward? Is there a particular stakeholder who should be stepping up on this?

CB: Clearly tribunals need to address their own particular circumstances. But the privacy commissioners need to be involved as well. We have seen some action of late. The British Columbia and Saskatchewan commissioners have been especially active as has the federal OPC. I will say kudos, in particular, to former British Columbia commissioner David Loukidelis and to current Saskatchewan commissioner Gary Dickson, who’s done a great job on this issue. Not only did he issue the very well-reasoned Saskatchewan Automobile Injury Appeal Commission decision, but he has continued to profile the issue and has a list of resources posted on his website that tribunals can utilise. But there is more that needs to be done and we should be hearing from a few others that we haven’t heard from yet, in my view. It’s certainly a difficult issue for commissioners because it encompasses so many different tribunals with a wide range of perspectives, but to my mind, this is one of the more important issues that they ought to be involved in because it affects thousands and thousands of people, essentially all individuals who go before any adjudicative body where the adjudicative outcome becomes available on a website.

DM: Your new article actually focuses on internet publication. Does it alter the balance between transparency and privacy?

CB: I think there is no question that it certainly has changed the balance –anybody can get immediate access to decisions now and this is different than the much more limited disclosure that existed previously.

DM: Your thoughts on the solution?

CM: There is considerable work that still has to be done. You hear about search robot exclusion protocols. That may be well and good but that will take you only so far. The information is still out there. So tribunals will have to think more about how they write decisions – and that may be difficult for individuals who have written decisions the same way for a long time. I question how much personal detail really has to be some decisions. It’s going to take a more thoughtful approach to decision writing, rather than simply including everything, perhaps as a way of “judicial review-proofing” decisions. The other thing, of course, is clearly putting parties on notice with respect to the tribunal’s disclosure practices. Of course, you hope that putting people on notice isn’t a subtle deterrent to pursuing due process, but if they are aware of the tribunal’s practices they are at least in the position to raise privacy concerns in the course of adjudication. I think that’s fundamentally important.

DM: You also raise two new yet related issues in your new article.

CB: Yes, the use of adverse publicity by administrative agencies and the possibility of inadvertent disclosure of personal information.

DM: Explain each issue for us briefly.

CB: Regarding adverse publicity, there’s a concern about how agencies use their powers of publicity given the potential for unjustified reputational harm. There has been a considerable amount of debate about this issue in the United States over the years. The same debate hasn’t taken place here but we nonetheless have agencies that do use adverse publicity to fulfill their mandates. I think it is incumbent on such agencies to think carefully about this to make sure they are on sound footing, especially given the harms associated with internet publication.

DM: And the inadvertent disclosure issue?

CB: Agencies need to consider the possibility for inadvertent disclosure of personal information as they start to either require or invite their regulated communities to post information publicly. We’ve seen a couple cases come out of Alberta that highlight the issue – one involving SEDAR and another one involving the Alberta Energy and Utilities Board. In both cases very sensitive personal information got put up inadvertently on the internet.

DM: Let’s wrap up with a couple general questions. What are your recommended reads on practical obscurity and the internet?

CB: I’d recommend Daniel Solove’s The Digital Person and the Future of Reputation in particular. Also, Delete by Victor Mayer-Schonberger and Helen Nissenbaum’s Privacy in Context.

DM: Great. What’s up for you next?

CB: I’ve got a piece coming out in Canadian Privacy Law Review on the PIPEDA complaint process which has been informed by my own experience of having made a complaint and going through the process, which I found very frustrating. I’m currently working on two other pieces: one is a response to Jennifer Stoddart’s “Cherry Picking Among Applies and Oranges” piece from a few years back in which she defended the PIPEDA ombuds-model and the second is a more extended consideration of the adverse publicity issue.

DM: I look forward to reading those Chris, and wish you all the best.

CB: Dan, thanks for the opportunity to discuss these issues with you. It’s been a real pleasure.

[1] The first was Deference in Name Only: Judicial Review of Ontario’s Information and Privacy Commissioner, (1998) 20 Adv. Q. 304, followed by Judicial Deference and Ontario’s Information and Privacy Commissioner: In Search of Reasonableness, (1994) 28 Adv. Q. 1.

[2] The first article was Freedom of Information, Privacy, and Adjudicative Agencies in Ontario: Unresolved Issues and Emerging Concerns, (2006) 31 Adv. Q. 1, followed by Personal Information in the Adjudicative Decisions of Administrative Agencies: An Argument for Limits, (2008) 34 Adv. Q. 1. The third and most recent can be found at: (2010) 37 Adv. Q. 1.

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Comments

  1. Lawrence Gridin

    Great interview and a very interesting read.

    I find it odd that proceedings before a court are so transparent, and yet similar proceedings before an administrative tribunal are so opaque.

    For example, a landlord-tenant case argued in Small Claims Court may be susceptible to being published and reported. And yet, if a very similar case were to be argued at the Landlord and Tenant Board, the Board would typically refuse to release the Order or Reasons for Decision (redacted or otherwise) citing privacy concerns.

    In my opinion, this concern about privacy is misplaced and does the public a great disservice. Transparency in how judges and adjudicators reach their decisions is a fundamental aspect of the rule of law and a safeguard against arbitrariness and capriciousness.