The interplay between obligations pursuant to privacy
legislation and the requirements of the civil litigation process
must be managed carefully. Counsel should not assume that
disclosure requested pursuant to a right to information under
privacy legislation, and disclosed in due course through the
discovery process will be sufficiently provided.
The Office of the Information and Privacy Commissioner of
Alberta recently rendered an Order that should serve as a cautionary
tale. The Applicant was a former employee of the Respondent. He
requested his personnel file from his former employer. He was also
involved in litigation with his former employer. Both parties in
the litigation were represented by counsel. However, the Applicant
made the request for the personnel file directly to the former
employer and not through counsel.
Counsel for the former employer wrote to counsel for the
Applicant stating that as there was ongoing litigation, the
personnel file would be provided through the proper discovery
process in due course.
The Adjudicator found that the former employer's response to
the Applicant's counsel in the litigation was not sufficient.
The Applicant was not represented in the request for personal
information. Further, the Adjudicator found that the ability to
access the requested information in the course of a litigation
process does not detract from an Applicant's ability to request
access to the information under PIPA, and that the former employer
must still meet its obligations pursuant to PIPA. The response
stating that the information would be provided in due course was
found to essentially be a refusal to provide access to the
If counsel in ongoing litigation is made aware of a request for
personal information made by another party to the litigation, it
would be prudent to advise the client that the request should be
treated as separate and apart from the litigation to ensure that
obligations under privacy legislation are complied with. Further,
it would also be wise to confirm your own retainer for both the
litigation and privacy issue before responding to a request for
personal information in your capacity as counsel. If you do not
have expertise dealing with privacy legislation, the client should
be advised to retain separate counsel on the issue.
It is important to recognize that there are separate obligations
under privacy legislation and in the civil litigation process.
Although disclosure can be provided in the discovery process,
privacy legislation has applicable timelines and obligations that
must be met apart from the litigation process.
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