Ontario Commissioner releases 2007 annual report

The Information and Privacy Commissioner of Ontario tabled her Annual Report 2007 this past week. Apparently it was a good year:

IPC - Office of the Information and Privacy Commissioner/Ontario
Major advances made in Access and Privacy, says Commissioner Ann Cavoukian

Major advances made in Access and Privacy,
says Commissioner Ann Cavoukian

Court rulings, key decisions by her office and other developments all helped to make 2007 a year of significant progress in advancing both freedom of information and protection of privacy, Ontario Information and Privacy Commissioner Ann Cavoukian said today, as she released her 2007 Annual Report.

“I have never felt as positive about the future of privacy in Ontario as I do right now,” said the Commissioner. “And there have been some very important advances related to access to government-held information.”

PRIVACY PROTECTION

Among the positive developments she cites related to privacy protection:

• A key court ruling and subsequent ground-breaking order the Commissioner issued that addressed the same core issue – that the collection of extensive personal information from individuals whose only wish was to sell one or more second-hand items to a used-goods store should not end up in police files.
  
• In July, the Ontario Court of Appeal struck down a City of Oshawa bylaw that had required used-goods retailers to collect extensive personal information from people who wanted to sell second-hand items to used-goods stores. This personal information was then to be transmitted to, and stored centrally in, a police database – without any restrictions on its use or any judicial oversight.
  
• Two months later, following an investigation into a privacy complaint received by her office, the Commissioner invoked – for the first time in the 20-year history of her office – the power to order an institution to cease the collection of personal information and to destroy collections of information collected previously. She ordered the City of Ottawa and the Ottawa Police to stop collecting extensive personal information from individuals selling used goods to second-hand stores and to destroy personal information already collected (with limited exceptions).
  
• A ruling by Justice Edward Belobaba of the Ontario Superior Court of Justice that sections of the Adoption Information Disclosure Act breached the Canadian Charter of Rights and Freedoms. “As the Court noted,” said the Commissioner, “the Charter, ‘… is intended primarily to protect individuals and minorities against the excesses of the majority,’ and, accordingly, in this case, the Charter protected the minority who wished to preserve their privacy. I want to emphasize the significance of one of the statements in that Court decision:
  

  ‘People expect, and are entitled to expect, that the government will not share their confidential or personal information without their consent. The protection of privacy is undeniably a fundamental value in Canadian society.’”
  

  “It is of critical importance,” said the Commissioner, “that we never forget the Court’s words, ‘… privacy is undeniably a fundamental value in Canadian society,’ because privacy forms the very underpinning of liberty – the very foundation upon which our freedoms are built.”
  

• Positive steps were also taken in the development of “transformative technologies” – a new term for privacy-enhancing technologies applied to technologies of surveillance. For example, the Ontario Lottery and Gaming Corporation is evaluating facial biometrics for its “self-exclusion” program, under which some gamblers seek the OLG’s assistance in barring them from gambling in casinos operated by the OLG. Under a contract with the OLG, a University of Toronto team has been researching novel Biometric Encryption (BE) solutions. The system attempts to identify the subjects in the self-exclusion program while protecting the privacy of stored personal information. This information can be accessed only if a correct biometric, i.e. the facial image of a self-excluded person, is presented. In other words, the personal information is in effect “encrypted” with the person’s biometric – extremely privacy protective.

ACCESS IMPLICATIONS

Among the positive developments in 2007 related to freedom of information were several pivotal court rulings. These included:

• A very significant ruling by Ontario’s Divisional Court which upheld two decisions made by the Commissioner’s office on the application of the solicitor-client exemption to legal fees. “This ruling was a strong endorsement of our approach to the disclosure of legal fee information and underscores our consistent message that governments should actively disclose information about the expenditure of public funds,” said the Commissioner.
  
• Another key ruling, which applied the Canadian Charter of Rights and Freedoms, expanded the circumstances under which the public interest may override certain exemptions to accessing information under the Freedom of Information and Protection of Privacy Act (FIPPA). The Ontario Court of Appeal, in effect, amended FIPPA in a way that the IPC had been advocating since 1994, but did not have the authority to change. Section 23 of FIPPA states that where a “compelling public interest” in disclosure “clearly outweighs” the purpose of certain exemptions from the right of access, those exemptions do not apply. As a result of this decision, the IPC (subject to an appeal the Supreme Court of Canada will hear this fall) now has the ability to decide independently whether records subject to the law enforcement and solicitor-client privilege exemptions should be disclosed in the public interest.

RECOMMENDATIONS

Among the recommendations the Commissioner makes in her Annual Report:

• She is urging Ontario to make a privacy-protective electronic health record a priority.
  
• She is calling on the Premier and John Wilkinson, the Minister of Research and Innovation, to advance the development of transformative technologies (privacy-enhancing technologies applied to technologies of surveillance), not only in the area of research, but particularly in the commercialization of such research to facilitate its entry into the marketplace.
  
• She is urging all police services in Ontario to abide by the law and give a broad and generous interpretation to recent amendments to the provincial and municipal freedom of information and protection of privacy Acts that now allow police to disclose – in compassionate circumstances – the personal information of someone who has died to his or her family members.
  
• Rather than require individual provinces to build their own extensive databases of citizenship information from scratch, she is urging the federal government to make citizenship information available to provinces that want to provide an enhanced drivers’ licence (EDL) that citizens could use as an alternative to a passport, for the purpose of crossing the U.S. border.

FOI REQUESTS SET ANOTHER RECORD

Among the statistical information released by the Commissioner:

• The number of freedom of information requests filed with provincial or municipal government organizations across Ontario in 2007 – 38,584 – set an all-time high, surpassing the previous record of 36,739, set in 2006. Much of this increase is due to a jump in the number of requests filed with municipalities and police services.
  
• The number of privacy complaint files opened under the two public sector privacy Acts – 213 – was the highest in 11 years. (There were 170 privacy complaints in 2006.)
  
• And, the number of complaint files opened under the Personal Health Information Protection Act – 338 – set a record. (The old record was 269 in 2006.) Of the 338 complaint files, 227 were privacy complaints and 111 were access or correction complaints.

Commissioner Cavoukian’s 2007 annual report is available on the IPC’s website, www.ipc.on.ca.

The Information and Privacy Commissioner is appointed by and reports to the Ontario Legislative Assembly, and is independent of the government of the day. The Commissioner's mandate includes overseeing the access and privacy provisions of the Freedom of Information and Protection of Privacy Act, the Municipal Freedom of Information and Protection of Privacy Act, and the Personal Health Information Protection Act, and helping to educate the public about access and privacy issues.

Ontario Commissioner releases 2008 annual report and prepares for battle with Victoria University

The Information and Privacy Commissioner of Ontario has released her 2008 Annual Report, which makes broad recommendations for changes to the laws in Ontario and calls for the adoption of better practices:

IPC - Office of the Information and Privacy Commissioner/Ontario Commissioner Cavoukian lays out path for increased privacy protection & accountability – doing battle with Victoria University

Commissioner Cavoukian lays out path
for increased privacy protection & accountability – doing battle with Victoria University

TORONTO – Ontario’s Information and Privacy Commissioner, Dr. Ann Cavoukian, is urging the provincial government to make specific legislative changes and take additional steps to protect privacy and ensure greater accountability.

In her 2008 Annual Report, released today, the Commissioner cites how her sweeping recommendations from her seminal investigation into a privacy complaint against the video surveillance program of Toronto’s mass transit system have been hailed in the United States as a model that cities around the world can build upon, and in Canada as “a road map for the most privacy-protective approach to CCTV.”

Among the recommendations she is making in her 2008 Annual Report, are:

Amend the law to make it clear that all Ontario universities fall under FIPPA

The Commissioner is calling on the government to fix a potential omission in the Freedom of Information and Protection of Privacy Act related to which organizations are covered under the Act.

Under amendments that came into force in mid-2006, publicly funded universities were brought under the Act. Due to the wording of an amended regulation, the University of Toronto, in response to a freedom of information request received under the Act, argued that Victoria University, an affiliated university, was not covered under the Act.

“An IPC adjudicator determined that, based on the financial and academic relationship between the two, Victoria was part of the University of Toronto for the purposes of FIPPA,” said Commissioner Cavoukian. “The University of Toronto has not accepted our ruling and is now appealing it – having it ‘judicially reviewed.’ They have chosen to fight openness and transparency, expending valuable public resources in the process. We find this completely unacceptable, which is why we are prepared to go to battle on this issue, in our effort to defend public sector accountability. We should add that this is contrary to our normal process of working co-operatively with organizations to mediate appeals and resolve complaints informally. In this case, however, the university, having thrown down the gauntlet, left us no choice but to respond in kind and aggressively defend our Order in the courts.”

There are more than 20 other affiliated universities in Ontario that may have a different relationship with the university they are affiliated with, says Commissioner Cavoukian. “I am calling on the government to ensure that all affiliated universities are covered by the Act. There is no rationale for these publicly funded institutions to fall outside of the law.”

The government needs to set specific fees for requests for patients’ health records under PHIPA

The IPC has received a number of inquiries and formal complaints from the public regarding the fees charged by some health information custodians when patients ask for copies of their own medical records.

Ontario’s Personal Health Information Protection Act (PHIPA) provides that when an individual seeks copies of his or her own personal health information, the fee charged by a health information custodian shall not exceed the amount set out in the regulation under the Act or the amount of reasonable cost recovery, if no amount is provided in the regulation. No such regulation has been passed.

Commissioner Cavoukian, in her August 2008 submission to the Standing Committee on Social Policy, which conducted a statutorily mandated review of PHIPA, again raised the need for a fee regulation. Two months later, in its report to the Speaker of the Assembly, the Standing Committee indicated its agreement with the Commissioner’s recommendation, stating that the determination of what constitutes “reasonable cost recovery” should not be left to the discretion of individual health information custodians and their agents.

“The Minister of Health,” said the Commissioner, “should make the creation of a fee regulation a priority.”

Ontario’s enhanced driver’s licence (EDL) needs a higher level of protection

The Commissioner is calling on the Minister of Transportation to provide better privacy protection for the EDL. “The radio frequency identity (RFID) tag that will be embedded into the card can be read not only by authorized readers, but just as easily by unauthorized readers,” said Commissioner Cavoukian. “Over time, these tags could be used to track or covertly survey one’s activities and movements.”

The electronically opaque protective sleeve that will come with these enhanced licences – which drivers without a passport will need as of June 1 to drive across the U.S. border – “only provides protection when the driver’s licence is actually encased in the sleeve,” said Commissioner Cavoukian. “But individuals who voluntarily sign up for these enhanced driver’s licences will not only be required to produce them at the border, but will still have to do so in other circumstances where a driver’s licence or ID card is presently required, including in many commercial contexts. The reality is that most drivers will abandon the use of the protective sleeve.”

“An on-off device on the RFID tag would provide greatly enhanced protection,” said the Commissioner. “The default position would be off since drivers don’t need the RFID to be ‘on’ when routinely taking their licence in and out of their wallets, unless they are actually crossing the border. I am urging the government to pursue adding a privacy-enhancing on-off device for RFID tags embedded in the EDLs.”

FOI REQUESTS

The number of freedom of information requests filed across Ontario in 2008 was the second highest ever – 37, 933, trailing only the 38,584 filed in 2007. Nearly two-thirds of the 2008 requests were filed under the Municipal Freedom of Information and Protection of Privacy Act (24,482), to such organizations as police service boards, municipalities, school boards and health boards. In fact, there were more requests filed to police service boards (13,598) than there were for all organizations under the provincial Act (13,451).

FOI requests may be filed for either personal information or general records (which encompasses all information held by government organizations except personal information). And, the majority of requests each year have been for general records. In 2008 – for the second year in a row – the average cost of obtaining general records under the provincial Act dropped – this time, to $42.74 from $50.54, continuing a reversal of what had been a lengthy trend. The average cost of general records under the municipal Act was $23.54, up only a nickel from the previous year.

Among other key statistics released by the Commissioner:

· Since the IPC began emphasizing in 1999 the importance of quickly responding to FOI requests, in compliance with the response requirements set out in the Acts, the provincial 30-day compliance rate has more than doubled, climbing to 85 per cent from 42 per cent. After achieving a record 30-day compliance rate in 2007 of 84.4 per cent, provincial ministries, agencies and other provincial institutions promptly broke the record in 2008, producing an overall 30-day compliance rate of 85 per cent.

· The Commissioner also reported that her office received 507 complaints in 2008 under Ontario’s three privacy Acts, and 919 appeals from requesters who were not satisfied with the response they received after filing an FOI request with a provincial or local government organization. Overall, the IPC resolved 966 appeals and 534 complaints in 2008.
The Information and Privacy Commissioner is appointed by and reports to the Ontario Legislative Assembly, and is independent of the government of the day. The Commissioner's mandate includes overseeing the access and privacy provisions of the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act, as well as the Personal Health Information Protection Act, which applies to both public and private sector health information custodians, in addition to educating the public about access and privacy issues.

Join the discussion about Dalhousie University and Cloud Computing

Dalhousie University, like many other Canadian post-secondary institutions, is engaging in a deep conversation with students, faculty and staff about the possibility of moving e-mail and other IT services to the cloud. As part of that conversation, the university is hosting a special forum on privacy and the cloud. Here's the details:

“A Forum on Privacy Laws, Cloud Computing and Impact to IT Strategy”

Presentation Date: Monday, April 18th, 2011 2:00-5:00 (Rowe Potter Auditorium)

Information Technology Services at Dalhousie University is exploring a number of opportunities with emerging “Software-as-a-Service” or “Cloud Computing” initiatives. Cloud computing introduces a number of potential concerns around security, privacy, data ownership and data stewardship.

In an effort to address concerns and increase awareness around the legal, policy and academic implications, Dalhousie has invited professionals in a number of areas to speak and take part in a panel discussion on these topics.

David Fraser, Partner, McInnes Cooper

Mr. Fraser will speak to Canadian and American laws in relation to cross border data transfer, privacy and access to information.

Dwight Fischer, CIO, Dalhousie University

Mr. Fischer will speak to the technology challenges and changes taking place and the impact on Dalhousie.

Paul Jones, Policy & Education Officer, Canadian Association of University Teachers

Mr. Jones will speak to the concerns around privacy and academic freedom, specifically how it relates to faculty.

Come and take part in the discussion on April 18th from 2:00 to 5:00 p.m!

Join in the online conversations now at blogs.dal.ca/connectedU

University of Alberta signs on to Gmail

Interesting development, from the Edmonton Journal:

University of Alberta signs on to Gmail

EDMONTON — The University of Alberta and Google concluded legal negotiations this week, preparing the way for better e-mail service for students and entry into the Canadian university market for the Internet giant.

The contract makes legally binding Google’s promises not to data mine university Gmails or share data with a third party. University staff and students get all of Google’s Gmail applications for free, and get to retain their @ualberta.ca tags.

The contract is the first of its kind in Canada and expected to be adopted other Canadian universities now that Alberta has paved the way, University of Alberta vice-provost Jonathan Schaeffer said.

The University of Alberta currently uses more than 30 different e-mail systems across campus.

Using Gmail could save the university $2 million a year, allow a common calendar and improve the emergency response system. But when the idea was first touted publicly last January, many staff and students had privacy concerns.

Signing the contract to ease those concerns means increased legal risks for Google, which sees the free services as a way to build market loyalty but can’t otherwise profit from the deal.

“That, in part, is why it took so long,” Schaeffer said. Now, “we have a legal contract that would allow us to go after them.”

The contract took 15 months to negotiate, which was much longer than the university expected, Schaeffer said. But a legally binding framework was also needed to meet the requirements of the Alberta Freedom of Information and Protection of Privacy Act.

The shift to Gmail will begin in January.

More than 20 Canadian universities, as well as the Canadian University Council of Chief Information Officers, sent Google letters of support during a low point in negotiations last July, indicating it would also be interested in accepting Gmail if a legal framework like the one the U of A wanted was in place.

Privacy in the cloud for Canadian universities

This past week, I was invited to speak at the annual get-together of The Canadian University Council of CIOs (CUCCIO) in Toronto on the topic of cloud computing. Many universities in Canada are struggling with the legal and privacy issues of adopting cloud computing, particularly when Google and Microsoft are both offering very attractive (and free!) offerings that would relieve universities of the costs and burdens of administering student and alumni e-mail.

Universities in Alberta, British Columbia and Nova Scotia are particularly hampered by legislation that was designed to thwart the boogeyman represented by the USA Patriot Act.

BC and Nova Scotia have each adopted legislation that either categorically prohibits the "export" of personal information by public bodies, or put in place administrative hurdles. Alberta joins this pack by making it an offense under their public sector privacy law to disclose personal information in response to a "foreign demand for disclosure".

Part of the problem is that the legal framework is not particularly nuanced, as each decision about whether to outsource a service should be guided by a detailed risk assessment and privacy impact assessment instead of ham-fisted categorical rules that don't take particular circumstances into account.

Here is my presentation, which was well received.

If the embedded slideshow isn't showing you the love, click here: https://docs.google.com/present/view?id=ddpx56cg_320fx7rkbhh&interval=30

Is university faculty e-mail subject to access and privacy laws?

Dan Michaluk has just blogged about an interesting case out of Alberta (University of Alberta v. Alberta (Information and Privacy Commissioner), 2011 ABQB 100) that may have a significant impact on freedom of information law, particularly in universities. It will also have an impact on cloud computing decisions by universities. The Canadian Association of University Teachers takes the position that faculty e-mail are not under the "custody and control" of the educational institution. If this is found to be the case, faculty e-mail is not within the ambit of access to information laws at all and the privacy protection provisions of those laws. And, if that's the case, such e-mails are not covered by laws that are meant to regulate the export of personal information (out of fear of the USA Patriot Act). Stay tuned ....

See Dan's post: Alberta Court set to Hear Faculty E-mail Case « All About Information

University of Akron may demand DNA from job applicants

Wow. All I can say is wow.

Want A Job In Akron? Hand Over Your DNA - Taking Liberties - CBS News
It's not unusual for employers to conduct criminal background checks during the hiring process. But the University of Akron has taken this to a surprising new level.

The Ohio school now reserves the right to require any prospective faculty, staff, or contractor to submit a DNA sample, which genetic-testing experts say makes it the first employer in the nation to take such an extreme and potentially intrusive step.

The new policy, which says a "DNA sample for purpose of a federal criminal background check" may be collected, took the campus by surprise after it was announced last week. An adjunct faculty member has resigned in protest and is contemplating a lawsuit, and the local chapter of the American Association of University Professors says that genetic testing violates a collective bargaining agreement. ...

Ryerson University looks to the cloud

Today, I had the great pleasure of being one of the speakers at Ryerson University's broad consultation on the possibility of adopting cloud computing at the university. It was an incredibly high-quality event with a packed auditorium (in the middle of reading week, no less) and a very engaged audience.

The agenda is here: E-mail and Collaboration Tools Consultation | Email & Collaboration Tools Consultation.

My presentation is here:

If you can't see the embedded presentation, try this link: https://docs.google.com/present/view?id=ddpx56cg_415c4c8k5g5&interval=60

The full symposium was webcast live and will be available here:

• Morning session, including introductions, Ontario Commissioner Anne Cavoukian and me.
  
• Afternoon session, including presentations by Google, Microsoft, James Turk (Executive Director, Canadian Association of University Teachers), panel discussion and next steps by the University

If you want to see the many, many tweets which were sent out, search Twitter for #ryeprivacy.

UPDATE: Over at Slaw.ca, Dan Michaluk, who was at the symposium, has posted a few of his observations on the day: Commissioner Cavoukian says the Patriot Act is nothing.