Last month, insert link to October 1, 2013 blog entry we told you about an Policy Statement from the Public Service Labour Relations Board on Openness and Privacy. The Board uses the web robot exclusion protocol recognized by internet search engines such as Google and Yahoo. The use of this protocol means that an internet search of a person's name will not yield any information from the full-text versions of decisions posted by the PSLRB on its website.
Today, we review a July decision of the Office of the Information and Privacy Commissioner of Alberta under the Freedom of Information and Protection of Privacy Actin Privacy complaint F6566 involving a decision by the Law Enforcement Review Board. A decision of the Board, containing personal information about the complainant was posted on its website. The information included:
- The Complainant's name;
- The Complainant's profession and rank (employment history);
- References to an on-the-job incident the Complainant was involved in (employment history and opinions); and,
- A professional conduct decision made under the Police Act (employment history).
The adjudicator found that: The Public Body is an independent quasi-judicial body established under the Police Act. Under that statute, its primary activities (relative to this case) are:
1. To hear appeals, in public, brought forward by citizens and by police officers (which is consistent with the open court principle) [section 20(1)(l)];
2. To dispose of the matter by writing the decision in those appeals [section 20(2.1)]; and,
3. To advise the parties and the Minister of the decision [section 20(3)].
Those are the purposes for which the personal information was collected or compiled so the Public Body would also be authorized under subsection 40(1)(c) of the FOIP Act to disclose information for those same purposes.
The adjudicator found that disclosure was authorized and then had to address the question of whether the disclosure was limited as required by s. 40 (4).
The conclusion – unless the privacy-related conduct of the tribunal is clearly unreasonable, the questioning of the amount or method of disclosure must be handled cautiously and with deference.
... I think it is up to the Public Body to determine the merit of making decisions fully publicly searchable or limiting the searchability, and therefore disclosure, in some fashion. It is also up to the Public Body to determine the merit of differentiated treatment based on each case and developing the proper criteria to determine that treatment.
There are two competing interests that arise when considering whether to publish personal information in a decision of an administrative tribunal:
- Controlled privacy is a critically important element of privacy schemes (and a desired one for the Complainant). That said, I do think it's important to point out one possible and very significant outcome that could arise if differentiated treatment were employed: if nothing were located using a search engine that scanned the whole internet, individuals searching on the web might not go any further, and could assume there are no matches, because the search parameters led to no results being found.
- The Public Body ~ since it deals with information of law enforcement officials ~ must consider whether is it transparent enough, with the ease-of-search so relied upon now, to limit the locating of a decision to only its site. It must also recognize that if the information is not easily accessible it can be seen to be inaccessible.
Bottom line? Differentiated disclosure ie. use of the web robot exclusion protocol may be justified. On the other hand, the need to satisfy the openness-through access objective may dictate that differentiated disclosure is not warranted. The decision needs to be based on both the mandate and objectives of the agency or tribunal and a weighing of these competing interests.
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