Adjudicator Decides Legal Aid Society Subject to PIPA

On February 11, 2013, an adjudicator of the Alberta Office of the Information and Privacy Commissioner decided that Alberta’s Legal Aid Society is subject to the Personal Information Protection Act (PIPA), with consequences for all non-profit organizations that conduct activities with a commercial character. Alberta’s PIPA came into force on January 1, 2004, and governs the collection, use and disclosure of personal information in the private sector. The Act applies to organizations, including corporations, unincorporated associations, partnerships and individuals acting in a commercial capacity. The purpose of the Act is to balance the individual’s right to privacy and the reasonable interests of organizations in collecting, using and disclosing personal information.

So how does PIPA apply to the Legal Aid Society?

This case involves an applicant who sought the assistance of the Alberta Legal Aid Society in 2008 and 2011. He was denied legal representation both times, but was provided with limited advice and referral information in 2011.

On October 3, 2011, the applicant made a written access-to-information request to Legal Aid for all computer-generated or written notes, information and instructions shared internally and externally regarding his requests to secure legal assistance from Legal Aid Alberta.

Legal Aid promptly responded to the applicant and provided the applicant with a copy of the staff lawyer’s notes from a meeting held September 19, 2011, and certain notes of lawyers involved in one of his appeals. It also informed the applicant that his information was only shared internally to make decisions about what information, referrals, services and legal advice to provide him; that his information was not shared externally; and that it had not collected any personal information of the applicant from any source other than the applicant himself.

The applicant was not satisfied and made a formal request to the Alberta Office of Information and Privacy Commissioner to review Legal Aid’s responses to two of his initial requests he felt were not dealt with properly. Specifically, he sought access to:

• Personal information related to the internal sharing, if any, of the full contents of the file created on him with all persons at Legal Aid Alberta
• Specific instruction(s) concerning him, if any, received of persons at either Alberta Minister of Justice and Attorney General, or Alberta Solicitor General and Public Security or otherwise

To assess whether Legal Aid dealt with the applicant’s access to information requests properly, the Office of Information and Privacy Commissioner had first to determine if PIPA applied to the organization.

At issue was whether the Legal Aid Society is a “non-profit organization” under PIPA, and, if so, whether it collected, used and/or disclosed the applicant’s personal information in connection with a commercial activity as defined in the Act.

Is Legal Aid Alberta a non-profit as defined in PIPA?

PIPA defines “non-profit organization” for the purposes of the Act as an organization that is incorporated under the Societies Act, or the Agriculture Societies Act, or registered under Part 9 of the Companies Act, or that meets the criteria established under the regulations to qualify as a non-profit organization (section 56(1)(b) (i) (ii)).

Legal Aid Alberta is a registered society incorporated under the provincial Societies Act. Although its primary source of funding comes from the Government of Alberta through the Minister of Justice, it is independent from the government. However, it is accountable to the Minister of Justice and the Law Society of Alberta.

Thus, Legal Aid Alberta is a non-profit organization under PIPA, but section 56(3) limits how the Act applies to non-profit organizations. The Act applies only in the case of personal information that is collected, used or disclosed by such organizations in connection with a “commercial activity.”

Now the adjudicator had to decide if the Legal Aid Society collected, used and/or disclosed the applicant’s personal information in such a way.

Was Legal Aid Alberta carrying out a commercial activity when it collected, used and/or disclosed the Applicant’s personal information?

The adjudicator clarified that:

Here, the question to be answered is not whether opposing parties in a legal matter, along with their lawyers, are engaged in a commercial activity, but whether the Organization is engaged in a commercial activity when it is deciding whether to establish a relationship, or does establish a relationship, with a client who comes to it seeking assistance.

For the purposes of the Act, “commercial activity” means any transaction, act or conduct, or any regular course of conduct, that is of a commercial character (section 56(1)(a)).

The adjudicator noted that a previous order (P2007-007, at para. 40) indicated that:

…the question of whether a non- profit organization is carrying out a commercial activity must be considered in the circumstances of every case and the answer must be determined on a case-by-case basis.

This is because the phrase “commercial activity” may have a broad range of meanings, and it is necessary to consider the phrase in its overall context, including the legal context by analyzing the statute in which the phrase is found.

The foregoing is to say that the question of whether an organization is carrying out a “commercial activity”, within the terms of PIPA, depends on PIPA’s own statutory context and objectives, although stated interpretations of the same or similar terms under comparable legislation.

Legal Aid Alberta says in its submissions that it is not making a “profit,” that it is conferring a “public benefit,” that its activities are “charitable” and not commercial, and PIPA should not apply to organizations effectively carrying out the core activities of government or government-funded activities.

After careful analysis of what is a commercial activity, the adjudicator decided to give it a broad interpretation for the purpose of Alberta’s PIPA.

While admittedly somewhat circular, the definition does not say that a commercial activity is an activity that is “commercial”. Rather, an activity must have a commercial “character”. To me, the definition is meant to capture activities that are more or less commercial, or appear to be commercial by most accounts. To adapt a colloquial phrase, if it looks like a commercial activity, and walks like a commercial activity, then it is a commercial activity. In short, PIPA is meant to apply to non-profit organizations that are carrying out activities as though they are a business.

The adjudicator found that Legal Aid’s activities—assessing individuals for legal aid coverage, arranging for legal aid services to be provided by lawyers in private practice, and providing legal aid services through its staff lawyers—are commercial in character. Therefore, the Act applied, and the arbitrator had jurisdiction to review the matters raised in the applicant’s request for review.

Now the final question to answer was, was the applicant allowed access to the information he was requesting, or was the information excluded from the Act by virtue of section 4(3)?

The guiding principle of PIPA is that an organization must normally obtain consent for the collection, use or disclosure of personal information from the individual the information is about, unless an exception applies. Section 4(3) describes the 15 exceptions, and Legal Aid argued that three of these applied in this case, including:

4(3)(k) personal information contained in a court file, a record of a judge of the Court of Appeal of Alberta, the Court of Queen’s Bench of Alberta or The Provincial Court of Alberta, a record of a master in chambers of the Court of Queen’s Bench of Alberta, a record of a sitting justice of the peace or a presiding justice of the peace under the Justice of the Peace Act, a judicial administration record or a record relating to support services provided to the judges of any of the courts referred to in this clause.

4(3)(o) personal information contained in a personal note, communication or draft decision created by or for a person who is acting in a judicial, quasi-judicial or adjudicative capacity.

However, the adjudicator did not agree with Legal Aid and found none of the exceptions applied.

While some of the information collected by Legal Aid from the Applicant apparently emanated from court files within the terms of section 4(3)(k), this information does not appear to be part of the information requested by the Applicant in his access request, or at least not in relation to items 2 and 4 of his letter of October 3, 2011, being the items that are of concern to him with respect to the Organization’s response. Third, none of the information in question is contained in a personal note, communication or draft decision created by or for a person who is acting in a judicial, quasi-judicial or adjudicative capacity, a set out in section 4(3)(o).

The adjudicator ultimately concluded that PIPA applies to Legal Aid Alberta because it was carrying out a commercial activity when it collected, used and/or disclosed the applicant’s personal information. The adjudicator ordered Legal Aid Alberta to comply with the Act and provide the applicant with the information he requested.

Organizations should note that the requests for information do not affect any legal privilege, do not limit the information available by law to a party to a legal proceeding, and do not limit or affect the collection, use or disclosure of information that is the subject of trust conditions or undertakings to which a lawyer is subject.

Nonetheless, non-profit organizations should be aware that they are subject to PIPA and are not excluded from its application just because they don’t undertake explicitly commercial activities. Activities of a commercial character may bring them within the application of PIPA.