Canada: Considerations In Drafting Privacy Policies

There is currently a patchwork of privacy legislation in force across Canada that applies, in different degrees, to privacy sector organizations. In all Canadian jurisdictions, there is some form of privacy legislation that protects the confidentiality of personal information and limits the manner in which private sector organizations may collect, use, disclose and retain personal information in the course of their commercial activities and, in some jurisdictions, in relation to their employees.

Ensuring Compliance with Federal and Provincial Privacy Legislation

Regardless of your jurisdiction, the following measures must be followed by organizations when implementing privacy policies and practices in order to comply with applicable privacy legislation. Even if you operate solely in a jurisdiction such as Ontario (where private sector privacy legislation governing the use of employee personal information does not exist), these measures provide a useful guideline as to "best practices" for organizations that wish to implement privacy policies and practices applicable to their employees.

1. Appoint a "Privacy Officer" or "Privacy Committee"

Organizations must designate an individual or individuals to be responsible for personal-information-handling practices. These duties may be further delegated to one or more individuals. Many organizations satisfy this requirement by creating the position of "Privacy Officer" or a "Privacy Committee" comprising representatives from areas of the business involved in the collection, use, disclosure and retention of personal information, such as: purchasing, sales, records management, information technology and human resources. There is no requirement that the accountable individual(s) be employed by the organization, nor is there a requirement that they be located in Canada. The name or title and business contact information of the responsible individual(s) must be made readily available upon request.

In the initial stages, the individual(s) responsible for privacy compliance will assist in:

• undertaking a privacy audit;
• implementing policies and procedures designed to protect personal information;
• establishing policies and procedures to receive and respond to complaints and inquiries;
• training staff and communicating information about the applicable privacy policies and practices; and
• developing and making available information to explain privacy policies and procedures.

Organizations will also need to build in processes for dealing with requests for access to personal information, and for interacting with the applicable Privacy Commissioner in the event of an investigation.

The ongoing role of the Privacy Officer or Privacy Committee will be to analyze privacy issues and implement action plans in circumstances where the organization is not compliant with applicable Canadian privacy legislation. The Privacy Officer or Privacy Committee should also be responsible for acting as a champion for privacy protection within the organization and for ensuring that privacy issues are taken into account when considering new or amended business processes.

2. Undertake a Privacy Audit

An organization is required to undertake an audit of its current personal-information-handling practices in relation to its employees in order to accurately assess: (a) what personal information an organization collects, uses, discloses and retains; (b) how, why and where such personal information is collected, used, disclosed and/or retained; and (c) to whom such personal information is disclosed. In the course of completing the privacy audit, an organization's Privacy Officer or Privacy Committee should:

• identify all of the personal information currently held by the organization;
• ascertain where this personal information is kept, whether in paper files or in electronic databases;
• identify why the personal information is collected and how it is being used;
• identify whether any information other than personal information could be collected that would serve the purpose for which the personal information is collected;
• identify any third parties from whom the personal information is collected, if not directly from individuals;
• identify any third parties to whom the personal information is disclosed or transferred;
• identify who within the organization has access to the personal information and why;
• ensure that any personal information collected by the organization is collected for purposes that are reasonable in the circumstances;
• ensure that the purposes for which the personal information is collected are communicated when the information is collected;
• ensure that individuals have provided their informed consent to the collection of their personal information and for any subsequent use or disclosure of that personal information; and
• ensure that the personal information collected by the organization is accurate, complete, up-to-date and secured in a manner appropriate in all circumstances, with regard to the sensitivity of the personal information obtained.

3. Develop and Implement Privacy Policies and Practices

Once the privacy audit is complete, the Privacy Officer or Privacy Committee should use the information gathered through the audit process to develop privacy policies and practices applicable to personal information the organization collects, uses and discloses in relation to employees. Such policies must:

• identify the types of personal information collected, used and disclosed by the organization;
• identify the purposes for which such personal information is collected, used and disclosed by the organization;
• identify the third parties to whom the organization may disclose the personal information, and why such personal information is disclosed to these third parties;
• identify the security safeguards that the organization has in place in order to ensure the security and confidentiality of the personal information;
• advise individuals as to how they may obtain access to their personal information and as to how they may withdraw their consent to the collection, use, retention or disclosure of their personal information; and
• advise individuals as to how they can make inquiries regarding the organization's personal-information-handling practices and the personal information held by the organization.

Once developed, the privacy policies will have to be made readily accessible. One of the obligations imposed by applicable Canadian privacy legislation is to make specific information about the policies and practices that the organization has adopted with respect to the management of personal information readily available, including:

• the name or title and the address of the person(s) who is/are accountable for the organization's privacy policies and practices and to whom complaints or inquiries can be forwarded;
• the means of requesting access to personal information held by the organization; and
• a copy of any brochures or other information that explain the organization's policies and practices.

4. Develop and Implement Safeguards

Organizations are required to make reasonable security arrangements to prevent unauthorized access, collection, use, disclosure, copying, modification, disposal or destruction of personal information. By way of example, the Personal Information Protection and Electronic Documents Act (PIPEDA) states that the methods of protection may vary according to the sensitivity of the information, and should include:

• physical measures, for example, locking filing cabinets and restricting access to offices;
• organizational measures, for example, requiring security clearances and limiting access on a need-to-know basis; and
• technological measures, for example, using passwords and encryption.

Following the completion of the privacy audit, an organization should develop and implement policies and procedures designed to ensure that its personal information security meets the general requirements of applicable Canadian privacy legislation.

5. Develop and Implement a Policy for Responding to Privacy Inquiries

Organizations are also required to establish a process whereby an individual can obtain access to his or her personal information that is held by the organization. This may be best achieved by providing any employees who are or may be involved in receiving and responding to requests for access to personal information or other privacy inquiries with written guidelines as to how to deal with such requests. Such guidelines should include a detailed outline of the organization's policy with respect to responding to general privacy inquiries, specific requests for access to personal information, and complaints with regard to the organization's handling of personal information. Such guidelines should also include timelines for responding to such inquiries, requests and complaints. The overall purpose of these guidelines is to ensure consistency across the organization with respect to the handling of privacy-related inquiries.

6. Train Staff and Roll Out Privacy Policies and Practices

Once the privacy policies and procedures described above are ready to be implemented, any employees who are or may be involved in the collection, use or disclosure of personal information, or who may be required to respond to an individual's inquiry regarding the handling of their personal information by the organization, or regarding the organization's general personal information handling practices, should receive training regarding the organization's privacy policies and procedures.

In addition, the organization must ensure that its employees, suppliers, customers and other individuals to whom the privacy policy applies are made aware of the organization's privacy policies.

7. Ongoing Monitoring and Review

Following the implementation of these policies and procedures, an organization will also be required to review them on a periodic basis in order to ensure they remain accurate, complete, up-to-date and compliant with applicable Canadian privacy legislation.

Conclusion

Background

Federal Private Sector Privacy Legislation

On January 1, 2001, the Personal Information Protection and Electronic Documents Act, commonly referred to as PIPEDA, came into force. It is the first privacy legislation applicable to private sector organizations in Canada.

Between January 1, 2001 and December 31, 2003, PIPEDA applied only to private sector organizations that fell within the definition of a "federal work, undertaking or business" under Canada's Constitution Act, 1982. The types of organizations that fall within this definition include banking institutions, airlines, railways and telecommunications companies. With respect to these types of organizations, PIPEDA applies to personal information collected, used and disclosed:

• in the course of their commercial activities; and
• in relation to employees.

On January 1, 2004, PIPEDA's scope expanded to apply to provincially regulated organizations in relation to personal information collected, used and disclosed by such organizations in the course of their commercial activities. PIPEDA will continue to apply to personal information collected, used and disclosed by provincially regulated organizations in the course of their commercial activities unless and until a province in which such an organization is located or is otherwise subject to the laws of such province, passes legislation which is "substantially similar" to PIPEDA.

The gap in the applicability of PIPEDA to employee personal information, although not expressly stated in PIPEDA (but confirmed by the federal Privacy Commissioner), is rooted in the constitutional division of powers between the federal and provincial levels of government in Canada. The Federal Government does not have the constitutional power to pass legislation applicable to provincially regulated employers with respect to matters relating to their employees.

Provincial Private Sector Privacy Legislation

Currently, there are only three provinces in Canada that have enacted generally applicable private sector privacy legislation:

• An Act respecting the protection of personal information in the private sector (Québec PIPA), which came into force in 1994;
• Alberta's Personal Information Protection Act, which came into force on January 1, 2004; and
• British Columbia's Personal Information Protection Act, which came into force on January 1, 2004.

Under Section 26(2)(b) of PIPEDA, the Governor in Council is empowered to exempt provincially regulated organizations from the application of PIPEDA if they operate within a Province where legislation is declared "substantially similar" to PIPEDA. The privacy legislation passed into law by the Provinces of British Columbia, Alberta and Québec, respectively, has been declared "substantially similar" by the Governor in Council. There are, however, specific and significant differences between the privacy legislation passed by these Provinces that must be taken into account when developing privacy policies and procedures applicable to employees working in those Provinces.

Principles Underlying Canadian Private Sector Privacy Legislation

The federal and provincial privacy legislation described above is premised on the fundamental principle that an organization cannot collect, use or disclose personal information about an identifiable individual without the knowledge and consent of that individual, subject to the limited exceptions described within the legislation itself.

The term "personal information" is broadly defined by Canadian privacy legislation as including any information about an identifiable individual, or information that allows an individual to be identified, but does not generally include business contact information (i.e., name, title, business address, telephone, facsimile, and e-mail address). "Business contact information" is not excluded from the definition of "personal information" under the Québec PIPA. There are other variations of, exceptions to, and exclusions from the definition of "personal information" set out in Canadian privacy legislation that must be taken into account when developing privacy policies and procedures.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.