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Sorry, Can’t Help You: Privacy As an Excuse

How many times have you heard it?  

You ask for important information on wait lists to get into a desired program: how many people are on the wait list? How many in a certain category? 

You ask for certain information about how many in a sizeable group are paid more, or less, than you.   

The information is readily available and simple enough to provide.

Still, you are told it can not be provided. The reason? 

Privacy laws. 

This happens frequently. 

It’s cut and dried. There can be no debate, the matter is crystal clear. Right?

Well, not always.

It is true that privacy can sometimes be a legitimate reason to withhold personal information.

Sometimes not, too. Sometimes an organization uses privacy legislation as an excuse to withhold information.  Conveniently, they may refuse your request for reasons that have absolutely nothing to do with privacy, but cite privacy as the reason.

They may want to withhold it to keep you from knowing what is going on.

Or, they just want you to stop asking questions, and go away, so they can carry on with whatever they were doing to begin with. The problem is, though, sometimes, what they might be doing is running roughshod over someone’s rights.  Your rights, or those of someone you care about, possibly.

Privacy legislation generally sets the ground rules for how organizations are permitted to collect, use, and disclose personal information. It also typically sets out how to access one’s own personal information. 

“Personal information” is data about an “identifiable individual”. It is information that can identify the individual.  If a person is not identifiable, then it is not “personal information” and is not protected by privacy legislation.

Information that has been anonymized, for example, is not personal information. An example may be the number of members in an organization which has several members.  If for example there are 20 members, this not personal information, because the identity of the members is not revealed by the number.

Another example of information that is generally not considered to be personal Information is information that is not about an individual because the connection with a person is too far-removed. An example may be a postal code which covers a wide area with many homes.  Unless this is combined with additional information which is not being provided, a mere postal code covering numerous homes does not reveal the identities of those within its area.

Though there are some exceptions, privacy law is rarely a legitimate reason to withhold your own personal information from you.

If you are ever told that “privacy law” prevents the information you seek from being provided to you, here is a possible response:  “What specific legislative subsection do you think authorizes you to withhold that information from me?”  The answer should be the name of a statute, and a specific section number.

The next follow up question: “On what basis do you think that provision applies here?”  Listen to the explanation. There should be a rationale.

Then, look up the provision and read it yourself. Research the provision, and related ones, on the applicable Privacy Commissioner’s website and elsewhere.  If the interpretation offered is not satisfactory, following up with the organization.  You may be wise to put your request in writing.  Look into your rights under the relevant privacy legislation.  Be aware that tight deadlines may apply for taking the matter to a privacy commissioner.

Generally, if the information you are seeking is not going to reveal someone else as an identifiable individual, chances are good that privacy law won’t be a legitimate reason to withhold the information you seek.

 

This is a modified version of an article that is appearing in the Kelowna Daily Courier, the Kelowna Capital News and other online publications in June,  2019. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances.  If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca