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Balance needed between privacy and open courts

|Written By Robert Todd

Ontario’s privacy czar believes a balance can be struck between the “open court” principle and concerns that have arisen about the online posting of administrative tribunal decisions.

Ken Anderson says there’s no easy answer in the question of privacy issues in online judgments.

“We take the position one size doesn’t fit all,” Ken Anderson, assistant commissioner for privacy at the Office of the Information and Privacy Commissioner, tells Law Times.

“We’re aware that certain tribunals have specific legislation which may govern them, and which may give them flexibility to do the right thing, which includes transparency and delivering the proper tribunal service, but at times protecting vulnerable people if they need to do that,” says Anderson.

Anderson’s comments follow a recent address by Privacy Commissioner of Canada Jennifer Stoddart to the Canadian Bar Association’s annual conference, in which she outlined privacy issues involving the legal industry.

Stoddart made headlines by suggesting names appearing in decisions of federal tribunals posted online should appear by initials only. Some critics have suggested that plan amounts to an attack on transparency.

Anderson says the IPC’s view on administrative tribunals is that, in some cases, certain parties may need to be named, but the identities of non-expert witnesses could be unnamed or anonymized.

“Maybe if it’s a family law matter or a mental health matter . . . you don’t necessarily need to go through family background information,” says Anderson. “Those are cases where maybe you can achieve all of the public-policy purposes of openness, and yet at the same time preserve the specific privacy of individuals.”

Anderson singled out licensing issues and discipline matters as instances when names of parties likely must be included in written reasons.

For a tribunal hearing involving allegations of medical misconduct, Anderson says the person being reviewed should be named, but patient files introduced as evidence should not include names.

“That’s really where we’re coming from on this,” he says.

Officials from administrative tribunals have met with the IPC to discuss anonymizing and ways they can protect certain private information while remaining transparent, says Anderson.

“They come in, so we don’t have an outlying issue where we ourselves are going to seek out people,” he says.

Courts also have been studying what case information should be posted online, notes Anderson.

“We’ve been watching that. We’re heartened by the fact that people have done a very good job of trying to figure out the nuances, figure out what should be public, what shouldn’t be public and why, and trying to avoid unintended and improper consequences,” he says.

Stoddart told the Quebec City conference that her Privacy Act annual report, to be released later this fall, will include findings on a number of investigations or complaints dealing with personal information posted online in federal tribunal decisions.

“When these cases were accessible only in specialized legal texts, or search engines accessible to legal professionals only, or copies could be picked up by making a trip to the basement records room of a court or tribunal, the concept of practical obscurity always operated in favour of privacy protection and the need-to-know principle,” said Stoddart.

“The story is now different when decisions containing highly sensitive personal information are made available to anyone with an internet connection.”

Mark Hayes, a partner in Blake Cassels & Graydon LLP’s Toronto intellectual property group, says it’s crucial that the public believes disputes in courts and administrative tribunals are being dealt with in a way they can understand, and potentially criticize.

“The concern is that if there is a wholesale removal of personal information from those decisions, that people will perhaps lose confidence that the whole story is being told,” says Hayes.

“Certainly, my personal view is that we have to be very careful before we begin to take all personal details out,” he says, adding there are times when more discretion needs to be used in terms of the online disclosure of personal details.

Borden Ladner Gervais LLP privacy lawyer Allison Foord suggests it may be unnecessary to force administrative tribunals to reduce disclosure of personal information.

“The tribunals themselves are becoming more aware of crafting their decisions in a way that serves a purpose of giving fully informed reasons, but that doesn’t add superfluous personal information,” says Foord.

“There’s a growing awareness of that in the profession as well; that if you don’t need to put into the record particular personal information, then you don’t,” she says.

Stoddart also referenced in her address to the CBA a pair of decisions involving privacy policies at law offices, including a May 2006 ruling in which she found that a traditional practice within some firms of checking the financial status of potential clients by running credit checks without their knowledge must end.

Generally speaking, Anderson says the IPC promotes the idea of “data minimization.”

He says, “In order to achieve proper purposes, you look for alternative means first, but if you have to collect personal information, you collect just the stuff to exactly do what you need to be doing,” in terms of use, disclosure, and storage.

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