2. Issue:
• The scope of the definition of “personal information” for
purposes of privacy legislation
3. Employment issue:
• Does the definition extend statutory protection to
information that identifies individual employees for
operational purposes: e.g., time sheets? attendance
records? work records? client invoices? client reports?
4. British Columbia’s Personal Information Protection Act
(“PIPA”)
• PIPA’s statutory definition of “personal information”
reads:
“personal information” means information
about an identifiable individual….
5. Comparators:
• Federal
The federal Privacy Act (and, by incorporation, the
federal Access to Information Act) defines “personal
information” as “information about an identifiable
individual that is recorded in any form”
6. • Ontario
Ontario’s Freedom of Information and Protection of
Privacy Act defines personal information as “information
about an identifiable individual”
8. Court Discussion of Privacy in the Search and Seizure
Context
• … While I do not wish to be taken as adopting the position that commercial records
such as cancelled cheques are not subject to [Charter] s. 8 protection, I do agree …
that in order for constitutional protection to be extended, the information seized must
be of a "personal and confidential" nature. In fostering the underlying values of
dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to
protect a biographical core of personal information which individuals in a free and
democratic society would wish to maintain and control from dissemination to the
state. This would include information which tends to reveal intimate details of the
lifestyle and personal choices of the individual. The computer records investigated
in the case at bar while revealing the pattern of electricity consumption in the
residence cannot reasonably be said to reveal intimate details of the appellant's life
since electricity consumption reveals very little about the personal lifestyle or private
decisions of the occupant of the residence.
R. v. Plant, [1993] 3 S.C.R. 281 at 293 (Supreme Court of Canada)
(emphasis added)
9. Federal Privacy Legislation
• 53 The information at issue is not "about" an individual. As found by the
application judge (at para. 18 of her reasons) the content of the communications is
limited to the safety and navigation of aircraft, the general operation of the aircraft,
and the exchange of messages on behalf of the public. They contain information
about the status of the aircraft, weather conditions, matters associated with air traffic
control and the utterances of the pilots and controllers. These are not subjects that
engage the right to privacy of individuals.
10. • 54 The information contained in the records at issue is of a professional and non-
personal nature. The information may have the effect of permitting or leading to the
identification of a person. It may assist in a determination as to how he or she has
performed his or her task in a given situation. But the information does not thereby
qualify as personal information. It is not about an individual, considering that it does
not match the concept of "privacy" and the values that concept is meant to protect.
It is non-personal information transmitted by an individual in job-related
circumstances.
Canada (Information Commissioner) v.
Canada (Canadian Transportation
Accident Investigation and Safety Board) and NAV Canada,
2006 FCA 157 (Federal Court of Appeal) (“NAV Canada”) (court emphasis)
11. Ontario Privacy Legislation
• The meaning of "about" the individual
10 To qualify as personal information, the information must be about the individual in a
personal capacity. As a general rule, information associated with an individual in a
professional, official or business capacity will not be considered to be "about" the
individual.
Order PO-2715; Ontario (Ministry of Community Safety and
Correctional Services), [2008] OIPC No. 177 (QL) (Ontario
Privacy Commission Adjudicator), para. 10 (emphasis added)
12. Implicit Limitations in BC?
• There are cases before the Commission arguing that
the definition must be interpreted “purposively” to limit
the statutory protection to information that engages
privacy values
• That information should only be “personal” if the
underlying privacy values of dignity, integrity and
autonomy are reasonably engaged by the nature of the
information
13. Would a purposive approach protect the following
information?
• attendance information - is the employee at work?
• information about where in the field an employee is
working?
• information about which employee performed what
work?
14. Alternative to Implied Limitation - Express Exclusion of
“Work Product Information”
• “‘personal information’ means information about an identifiable
individual … but does not include …work product information”
• “‘work product information’ means information prepared or collected
by an individual or group of individuals as a part of the individual's
or group's responsibilities or activities related to the individual's or
group's employment or business but does not include personal
information about an individual who did not prepare or collect the
personal information.”
• Success would require the Commission to hold that “prepared”
extends to operational information produced or generated by an
individual in the course of his or her work activities
15. Summary
• Common sense has guided the complaints being made
under PIPA and, historically, complaints have not been
brought regarding operational information
• However - a decision encouraging same could be
shortly forthcoming
• STAY TUNED
