Fallen Behind: Canada’s Access to Information Act in the World Context (2nd Edition)

Stanley Tromp has updated his 2008 book, Fallen Behind: Canada’s Access to Information Act in the World Context.

From Stanley Tromp:

The first edition of this book in 2008 detailed how Canada’s Access to Information Act had fallen behind the rest of the world’s FOI laws. Since then, the problem has only grown far worse (enough so that the revised book could well be entitled Fallen Further Behind). 

Cover Page
Fallen Behind cover page

In the authoritative Global Right to Information Rating system of the world’s 128 national laws, Afghanistan ranks number 1, while Canada – which ironically has so worked hard to transform that nation into a modern democracy – ranks 58. Mexico ranks second, followed by (in order) Serbia, Sri Lanka, Slovenia, Albania, India, Croatia, and Liberia.  

In his preface to the new edition, Halifax human rights lawyer Toby Mendel writes, “As someone who travels around the world promoting the right to information, it is frankly a source of profound embarrassment to me how poorly Canada does on this human right.”

Bill C-58 (which is now law) grants the Information Commissioner a barely adequate power to order the government to release records, and this is merely a baby step forward. When will the ATI Act ever be raised to accepted global standards? Canadians should insist upon answers.

Find the update book here.

Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

Data Privacy Design Jam: What is meaningful consent in an age of connected devices?

BC FIPA, in partnership with the Vancouver Design Nerds, held a two-day design jam in Ottawa March 5th and 6th. The purpose of this event was to explore issues around meaningful consent in the context of everyday life ranging from personal wearable technologies to smart homes and smart cities and their relationship to big data. With these different scales in mind, we sought to create new models of generating meaningful consent to mitigate the negative impact these technologies have on privacy. The two-day event brought together a diverse group of experts from academia and industry to advocates and activists working in this space to find creative solutions through a collaborative and inter-disciplinary approach.

Data Privacy Design Jam report title page

The final ‘prototypes’ that emerged after the second day varied in terms of how they approached meaningful consent, but an underlying theme that intersected all four groups was a focus on empowering individuals to take control over their personal information through various methods .

It is important to note that this project in itself is not the final stage in our work on meaningful consent and connected societies. Rather, this project has become a ‘jumping-off point’ that will launch future research and events to further address these issues. More specifically, we have begun to explore the feasibility of hosting another design jam with everyday consumers from various backgrounds rather than expert participants. The process we used could be adapted for either a representative sample of the general public or a predefined select target audience. By providing a similar initial problem and thought processes, the results would provide useful insights to how the public views issues of consent in a modern context.

Download the full report here.

BC FIPA would like to thank the Office of the Privacy Commissioner of Canada for the opportunity to explore this important issue through the Contributions Program.

NEWS RELEASE: Ministerial Order an exception to the rule

MEDIA RELEASE
March 30, 2020

Ministry of Citizens’ Services relaxes restrictions on the use of third-party tools and applications to disclose personal information inside or outside of Canada

VANCOUVER, March 30, 2020 – In the time of a global emergency, the protection of privacy and access to information rights needs to be kept at the forefront of policy discussions rather than used as a trade-off for convenience.Ministerial Order (no. M085) from the Minister of Citizens’ Services has called for a relaxation of the Freedom of Information and Protection of Privacy Act (FIPPA)’s data residency provisions in the context of the COVID-19 pandemic.

In addition to allowing the various provincial health authorities to disclose personal information inside or outside of Canada in response to COVID-19, the Order has given public bodies approval to use third-party tools and applications to disclose personal information inside or outside of Canada so long as they are being used “to support and maintain the operation of programs or activities of public [bodies]” and “to support public health recommendations or requirements” such as social distancing, working from home, etc. The order has an end date of June 30th, 2020.

We are firmly committed to the requirements for local data storage contained within the Act, even in extraordinary times. BC FIPA acknowledges that we are facing unprecedented challenges arising from the need to respond swiftly and responsibly to the COVID-19 pandemic, but this cannot be done at the expense of data residency and broader privacy rights. The all-party special committee who reviewed the Act in 2016 recommended that the personal information of British Columbians be protected in accordance with Canadian law – storing or accessing said data outside of Canada could subject it to a lower standard of privacy protection.  

BC FIPA is continuing to monitor for instances where the privacy of BC citizens is being sacrificed during the COVID-19 pandemic. “We hoped the government had exercised due diligence and put appropriate and necessary overrides in place that were triggered with the declaration of an emergency. It appears they felt those measures were insufficient and they took further action” says Jason Woywada, BC FIPA’s executive director. “There needs to be consideration for the long-term impacts of personal information being disclosed to third parties that cross borders and the impact that creates. Privacy and data residency has been under attack for years by those who wish to profit from its erosion. Maintaining privacy and data residency requirements is a positive sum proposition and should always be considered.”

BC FIPA continues to call for a comprehensive overhaul of FIPPA that is informed by a deep and sincere commitment to updating and expanding the information and privacy rights of British Columbians.  

Contact: 
Jason Woywada, Executive Director 
BC Freedom of Information and Privacy Association 

– 30 –

Related Links: 

Order of the Minister of Citizens’ Services: Freedom of Information and Protection of Privacy Act: Ministerial Order No.M085 – March 17 
https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/services-policies-for-government/information-management-technology/information-privacy/resources/ministerial_order_085_respecting_disclosures_during_covid-19_emergency__march_2020_pdf.

Declaration of a state of emergency – March 18 
https://news.gov.bc.ca/releases/2020PSSG0017-000511

Decision of the OIPC Commissioner Michael McEvoy – March 18 
https://www.oipc.bc.ca/news-releases/2399

Report of the Special Committee to Review the Freedom of Information and Protection of Privacy Act 2016 
https://www.leg.bc.ca/content/CommitteeDocuments/40th-parliament/5th-session/foi/Report/SCFIPPA_Report_2016-05-11.pdf

The Right to Data Portability

This is the second in our series on the privacy promises we can expect from a Liberal minority government.

From Innovation, Science and Economic Development Canada’s ‘Digital Charter: Trust in a digital world’, and the Liberal Party of Canada’s election 2019 platform document, ‘Forward: A real plan for the middle class’ (40).

In Canada’s Digital Charter, data portability fits within the fourth principle:

‘Transparency, Portability and Interoperability: Canadians will have clear and manageable access to their personal data and should be free to share or transfer it without undue burden.’

Clear and manageable access

Theoretically, Canadians already have “clear and manageable access” to their personal data.

For federal government institutions, Canadians have a right of access contained within section 12 of the Privacy Act. For private sector businesses, Canadians can submit requests to access personal information under the Personal Information Protection and Electronic Documents Act (PIPEDA).

In British Columbia, access to personal information held by provincial public bodies is realized through section 5 of the Freedom of Information and Protection of Privacy Act (FIPPA). For private businesses within the province, section 23 of the Personal Information Protection Act (PIPA) gives residents this ability.

In theory, the information rights enshrined within these four Acts already gives Canadians “clear and manageable access to personal data”. What’s new then is the ability to “share or transfer it without undue burden.”

What this means, exactly, is not quite as clear.

Sharing and transferring data without undue burden

In their 2019 election platform, the Liberal Party describes data portability as the ability for people to “take their data from platform to platform” (40).

From this, we might assume that someone would have the right to extract all of their data from a platform like Facebook, Twitter, or Snapchat, and transfer it to a new platform that offers a similar service.

Why would someone want to do this? One reason might be that an alternative service provider offers greater privacy protections, which in turn would create greater competition among monopolistic platforms.

This also gives Canadians the opportunity to make meaningful choices about how they share their personal information with platforms.

International models

In the European Union, Article 20 of the General Data Protection Regulations (GDPR) gives residents a right to data portability. This right allows data subjects to receive personal data about themselves from data controllers and transmit that data to other controllers.

The GDPR also ensures that the data is provided “in a structured, commonly used and machine-readable format” and provides the right to have the personal data transmitted directly from one data controller to another.

A major difference between the European Union’s GDPR and Canada’s PIPEDA is that Canada’s private sector privacy legislation frames privacy as data protection and not as a fundamental human right.

What does a humans rights based approach to privacy look like in legislation? Article 4 of the GDPR lists the fundamental rights the Regulation respects, which include:

“[T]he respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, the right to an effective remedy and a fair trial, and cultural, religious and linguistic diversity.’

The proposed right to data portability is a significant step towards creating a human rights based approach to privacy in Canada. While it is not as comprehensive as the GDPR, it will give individuals greater autonomy in their ability to control their own personal data.