Posted: May 1997
Privacy, access to information, and transborder data transfer are issues which have an important effect on businesses and government. Laws and guidelines intended to protect privacy restrict the way that businesses and government institutions collect and use personal information. Access to information laws provide a framework for the disclosure of government information, including commercial information originally supplied to government by businesses. Finally, laws on transborder data transfer may restrict the ability of businesses to transfer personal information from one country to another.
The remainder of Part 1 of this paper will discuss the background to access and privacy issues. Part 2 will discuss Canadian laws which govern the way that the federal and provincial governments may use personal information. While these laws do not apply to the private sector, they may provide a model for future private sector legislation. Part 3 will discuss privacy laws and guidelines which restrict the way that businesses may use personal information. Among other topics, we will consider the Quebec statute on the protection of personal information in the private sector, the Canadian Standards Association model code for personal information, and various common law actions that may protect privacy. Part 4 will discuss federal and provincial laws that provide access to government information. We will pay particular attention to the commercial information exemption in the federal Access Act, which protects some forms of sensitive information from disclosure. Part 5 will discuss laws on transborder data transfer, including the European Community's directive on the protection of personal information. In the Conclusion to this paper, we will consider the future of access and privacy issues.
The justification for access to information legislation is primarily democratic. In a seminal 1967 article on access to information in Canada, Professor Donald C. Rowat wrote: "Parliament and the public cannot hope to call the government to account without an adequate knowledge of what is going on; nor can they hope to participate in the decision-making process and contribute their talents to the formation of policy and legislation if that process is hidden from view."[fn1]
The idea that freedom of information is important for a healthy democracy appeared throughout the public discussion of access legislation in the late 1970s.[fn2] A related justification for access legislation is that it will improve government decision-making by bringing the glare of publicity to the process. The minister who introduced the access Bill repeated these themes, noting that the law would lead to a "more informed dialogue between public leaders and citizens" and would "improve the nature of government decision-making by allowing greater input from the private sector."[fn3] Despite these lofty goals, in practice, access legislation is used in large part by businesses seeking to obtain information about their competitors.[fn4]
The justification for the protection of personal information relates to the individual's right to privacy. Privacy has proven difficult to define and there is a continuing debate about the precise meaning of the concept in the academic literature.[fn5] One of the most popular definitions was put forward in a famous 1891 Harvard Law Journal article by Samuel D. Warren and Louis D. Brandeis. They characterized privacy as the individual's right to non-interference: the "right to be let alone."[fn6] More recent definitions have focused on the importance of personal information. The most notable of these was proposed by Professor Alan F. Westin in his 1967 book Privacy and Freedom: "Privacy is the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others."[fn7] The consensus appears to be that Westin's definition is the most relevant to modern society, which places increasing emphasis on the collection and use of personal information.
A variety of reasons have been advanced for protecting privacy. Writers have argued that privacy is necessary both for the individual and for society as a whole. From the individual's point of view, privacy may help individuals to develop their personalities, form close relationships with others and obtain relief from the roles imposed by society.[fn8] From the social point of view, privacy appears to be a key element of a democracy because it supports a citizenry which is independent and so capable of assessing its government.[fn9] As well, private space may give citizens the opportunity to discuss unpopular opinions which will ultimately find their way into the mainstream; in this way, privacy helps to promote a diversity of opinions and dissenting points of view.[fn10] On the other hand, most writers concede that too much privacy will be harmful to society, since it breaks down the links that join people together in a collective whole.[fn11]
Regardless of the theoretical justification for privacy, recent surveys show that the public has a high degree of concern about the collection and use of personal information. The 1992 Ekos survey of 3,000 Canadian households found that 92 per cent of all respondents expressed moderate or greater concern about privacy.[fn12] Asked to rank five aspects of privacy from most to least serious, respondents placed "controlling who gets information" and "controlling what information is collected" second and third respectively.[fn13] A second Ekos survey in 1995 of 2,000 households found that concern over the collection and use of personal information was high and that individuals felt they had less control over personal information than they did 10 years ago.[fn14] Respondents were particularly concerned about the sharing of personal information among private firms and expressed little confidence in industry self-regulation.
As noted above, public concern about access to information and privacy has been connected to the rise of computers and the growing importance of information. As government and big business began to computerize their records in the 1960s, people began to recognize the economic and social importance of information. Observers recognized that we were in the midst of a series of changes leading to a post-industrial or information society.[fn15] In the course of this transition, information has become a currency unto itself: the ability to collect, manipulate, synthesize and use information determines an entity's power. The focus on information may help to explain the pressure for more open access to government records that arose in Canada in the 1970s. In addition, the computerization of personal records meant that personal information could be more easily sorted, combined, transferred, and used for new purposes. Computerization has lead to the growth of a personal information industry in both the public and private sectors; the personal information industry collects data about individuals in order to better provide goods and services to them.[fn16] The growth of the personal information industry and its potential threat to privacy has lead to calls for legislation governing both government and private businesses.
Footnotes
1. Donald C. Rowat, "How Much Administrative Secrecy?" (1965) 31 Canadian Journal of Economics and Political Science 479 at 480.
2. See, for example: Canadian Bar Association, Freedom of Information in Canada: A Model Bill (Ottawa: CBA, 1979) at 6.
3. House of Commons, Minutes of Proceedings and Evidence of Standing Committee on Justice and Legal Affairs, issue no. 15 (31 March 1981) at 15:6.
4. In 1993-1994, about 40 per cent of all access requests came from business requesters. See: InfoSource Bulletin, December 1994 (Ottawa: Treasury Board, 1994), "Access to Information 1993-94: Source of Requests."
5. For a summary of the debate about privacy, see: Ferdinand D. Schoeman, "Privacy: philosophical dimensions of the literature," in Philosophical Dimensions of Privacy: An Anthology, ed. by Ferdinand D. Schoeman (Cambridge: Cambridge University Press, 1984).
6. Samuel D. Warren and Louis D. Brandeis, "The right to privacy," (1890) 4 Harvard Law Review 193.
7. Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967) at 7.
8. See: Ruth Gavison, "Privacy and the limits of law," (1980) 89 Yale Law Journal 42; Charles Fried, "Privacy," (1968) 77 Yale Law Journal 475; and Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967).
9. See: E.R. Ryan, "Privacy, Orthodoxy and Democracy," (1973) 51 Canadian Bar Review 84.
10. Ruth Gavison, "Privacy and the limits of law," (1980) 89 Yale Law Journal 42.
11. See, for example: Barrington Moore, Jr., Privacy: Studies in Social and Cultural History (Armonk, N.Y.: M.E. Sharpe, 1984) at 275.
12. Ekos Research Associates Inc., Privacy Revealed: The Canadian Privacy Survey (Ottawa: Ekos Research Associates, 1993) at i.
13. Ekos Research Associates Inc., Privacy Revealed: The Canadian Privacy Survey (Ottawa: Ekos Research Associates, 1993) at 10.
14. Public Interest Advocacy Centre / Fédération nationale des associations de consommateurs du Québec, Surveying Boundaries: Canadians and their Personal Information (Ottawa and Montreal, PIAC and FNACQ, 1995) at xviii.
15. One of the seminal books on this subject is Daniel Bell's The Coming of Post Industrial Society (New York: Basic Books, 1976).
16. For a discussion of the personal information industry, see: Anne Wells Branscomb, Who Owns Information? From Privacy to Public Access (New York, BasicBooks, 1994).