The USMCA and FIPPA

USMCA AND THE PRIVACY OF BRITISH COLUMBIANS

During NAFTA negotiations in 2017, FIPA did two separate submissions regarding BC’s Freedom of Information and Protection of Privacy Act (FIPPA) and saw significant concerns involving the information and privacy rights of Canadians. The first submission was to Minister Freeland in care of the NAFTA Consultations and the second was to the Standing Committee on International Trade. FIPA also raised the issue during the BC Election 2017, succeeding to have all three political parties commit to ensuring the protection of our privacy law under any negotiations of a new NAFTA agreement, now known as the United States-Mexico-Canada Agreement (USMCA).
The BC data localization provisions contained within FIPPA have been in force since 2004 and were implemented by the liberal government of Gordon Campbell on the recommendation of BC’s Information and Privacy Commissioner.

A large number of British Columbians became concerned about the application of the USA PATRIOT Act to their personal health information after it was announced that a number outsourcing initiatives to a US controlled private service provider.

BC’s Information and Privacy Commissioner made a number of recommendations, including a requirement that data be stored in Canada. This was incorporated as s.30.1 of FIPPA, which is a quasi-constitutional statue that applies to most of the broader public sector in BC as well as the provincial government itself.

The provision requires public bodies in the province to “ensure that personal information in its custody or under its control is stored in Canada and accessed only in Canada”, subject to a few limited exceptions.

FIPA once again raised concerns in the pending free trade agreement between Canada, Mexico and the United States of a possible conflict to the existing FIPPA s. 30.1. We have received assurance from the BC government that s. 30.1 of FIPPA remains protected.

The Ministry of Citizens’ Services provided FIPA with this statement on October 18, 2018:

“We are pleased that that Canada, Mexico and the United States have concluded negotiations on a new trade agreement. We’ve completed a legal analysis and determined that the Province’s legislative protections for data localization within Canada for public bodies under the Freedom of Information and Protection of Privacy Act are not impacted. B.C. worked closely with Ottawa during negotiations to ensure these data localization protections were maintained in the new agreement.”