BC FIPA has compiled a table of the recommendations of the Office of the Information and Privacy Commissioner of British Columbia (OIPC) regarding amendments to the BCFreedom of Information and Protection of Privacy Act (FIPPA) and their level of implementation by the government. Very few of the recommendations have been implemented.
BC FIPA has made its submission regarding the Draft Employment Privacy Guidelines to the Information and Privacy Commissioner of BC today.
FIPA is in support of a large part of the Draft Guidelines – on the whole, they are clear,
reasonable, and support a meaningful interpretation of the legislation.
However, there are also several areas of concern, and these are brought to the attention of the OIPC in this submission with the hope that this will assist in the improvement of the Draft Guidelines throughout this consultation process. FIPA asserts that employees in British Columbia deserve the highest possible protection of their privacy rights.
To this end, FIPA recommends that the OIPC take the following actions in relation to the
1. Recognize the status of privacy rights as fundamental, constitutionally protected rights.
2. Recognize that neither individual nor collective employment contracts can detract from an employee’s privacy rights.
3. Support the view that privacy rights generate benefits for both employers and employees.
4. Adopt a rigorous and contextual interpretation of what is “reasonable.”
5. Require a meaningful kind of “demonstration” of any justification for infringing on privacy rights, such as a written explanation, showing a logical justification for the action, and some evidence to support that justification.
6. Amend the Draft Guidelines to provide that employers must specify the aspect of an employment relationship that is being “managed,” and how, in order to justify the reasonableness of any invasion of employee privacy.
7. Adopt the Draft Guidelines relating to covert surveillance in full, reinforcing the limitation of covert surveillance to investigations of a reasonably founded specific allegation.
8. Adopt further measures to ensure the protection of any health or medical information about employees, including introducing an important role for health professionals whenever such information is collected, used or disclosed.
9. Adopt the Draft Guidelines on the notification requirement in full, and include concrete examples of what might qualify as notification. In different circumstances, the notifying document might be posted on a bulletin board, sent directly to all employees, or described during a meeting.
10. Amend the Draft Guidelines to explicitly state that any collection, use or disclosure of employee personal information without consent must meet both the reasonableness and notification requirements. Employers cannot fulfill their obligations under the Act by notifying employees of a surveillance practice, where it is unreasonable.
11. Add a provision to the Draft Guidelines affirming that information used for the
purpose of managing an employment relationship is always subject to the reasonableness and notification requirements, regardless of whether that information is also related to an insurance or benefit plan.
12. Require employers to publish and distribute information about employee privacy rights and the role of the OIPC in all workplaces.
BC FIPA has proposed revisions to s. 13 of the Freedom of Information and Protection of Privacy Act in Response to the Decision in College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner) in its submission to the Special Committee to Review the Freedom of Information and Protection of Privacy Act (FIPPA).
Section 13 of the Freedom of Information and Protection of Privacy Act permits an exception from access for “information that would reveal advice or recommendations be developed by or for a public body or a minister”. Until recently, it had been generally believed that “advice or recommendations” was limited to documents or reports that advocated that government choose a particular course of action or make a particular decision; in effect, “we recommend that you do this”, or “we advise that you do that”.
In the recent “Dr. Doe” case, however, the Sexual Conduct Review Committee of the College of Physicians was able to withhold from an applicant experts’ reports about whether or not she had been hypnotized. The Court of Appeal held that the s. 13 exception was not limited to recommendations as defined above; instead, the investigation and gathering of facts could be exempted from access pursuant to s. 13, regardless of whether or not any decision or course of action was actually recommended.
The result is a departure from the original intent of the statute. Applicants can now be denied access to a great variety of documents that would previously have been available to them. This will be the case even where the documents are about those applicants themselves and directly affect their interests.
The legislation should be amended to reflect the intention that the words “advice or recommendations” in s. 13 are limited to actually advising or recommending that government do something.
Darrel Evans, executive director of BC FIPA, was in Victoria today to deliver a speech at the BC Library Association Annual Conference on Bill 38, BC’s Personal Information Protection Act (PIPA).
After extensive consultation and input from organizations like BC FIPA, Bill 38 has turned into a real privacy bill what BC FIPA describes as an “enormous leap for privacy rights.”
However, there are still concerns, especially with regards to the drastic cuts made to the budget of the Information and Privacy Commissioner who will oversee PIPA.
There are also areas that could be improved such as issues like grandfathering, exceptions to consent, reduced rights of employees, limits to access and correction provisions, and the broad exception for the loosely defined “investigative purposes”.
On the whole, BC FIPA believes the legislation to be a very good one. Hopefully, the government will use this constructive criticism to make the bill even better.