Canada’s information and privacy commissioners want governments to respect Canadians’ rights to privacy and access to information in the face of the pandemic.
“The public health emergency arising from the COVID-19 pandemic has seriously impacted access to information and respect for individual’s privacy rights,” the federal and provincial commissioners said in the joint statement June 2.
It’s about people maintaining faith in democracy and accountability, they said.
“Access to government information and respect for privacy are essential for governments to be held accountable for their actions and decisions, and to maintain the public’s trust in times of widespread crisis,” said the commissioners, including B.C.’s Michael McEvoy.
“By ensuring confidence in decision-making, design and implementation of emergency measures and the systems that support them, access to information and privacy laws actually promote and assist the health and wellbeing of individuals and their families,” they said.
The situation has become increasingly important as information flows have slowed with officials not in their offices, a situation they say makes request processing difficult. That has led to officials asking for more and more extensions on access to information requests from the public, journalists and business, often leaving them in violation of the mandates to assist people.
Calgary’s Mount Royal University journalism Prof. Sean Holman said the commissioners could have been more forceful in their call. He said current delays in the freedom of information system are “hindering journalists across the country and, by extension, the public’s right to know.”
He said the pandemic has accelerated already existing system problems.
And the commissioners agreed, saying the pandemic has accelerated trends ongoing before March 2020, particularly public concerns about increasing surveillance by public bodies and private corporations and the slowing down of processing access requests.
Holman said the public’s right to know what governments are doing should be respected more than ever in a pandemic, giving people information about infection rates, areas of infection and responses.
Holman, a formerly Victoria-based investigative journalist, said jurisdictions outside Canada have been far more open in sharing such data.
“That is an indication of the extreme government secrecy that exists in Canada or the extreme lack of information,” Holman said. “Either way, the public should be deeply concerned.”
Holman said the way to make politicians move beyond their election-period promises of greater transparency involves traditional ways of reaching them and letting elected officials know the issue is a political one. He suggests writing to MLAs, MPs, premiers and the prime minister. Write letters to the editor, post on social media, Holman said.
The commissioners want governments to learn from the pandemic and strengthen the quasi-constitutional right of access to information and privacy rights in Canada.
Further, they said, the pandemic has highlighted the need to modernize the access to information system by leveraging technology and innovation to advance transparency.
The commissioners’ joint resolution adopted 11 access to information and privacy principles, calling on governments to implement them. Further, they want to see governments prioritize making modernization of legislative and governance regimes around freedom of information and protection of privacy.
“The lessons learned during this global crisis should be used to improve access to information and protection of personal data as we recover from the current crisis, not only to become better prepared for emergency situations in the future, but also to help Canadians adapt to the new normal of a digital era that is here to stay,” the commissioner said.
Among information access recommendations, the commissioners suggested:
- federal, provincial and territorial institutions recognize the importance of transparency and uphold the right of access to information during an emergency by ensuring business continuity plans include measures for processing requests for access;
- institutional leaders provide clear guidance and direction on the ongoing importance of information management in this new operating environment, which may include working remotely. Properly documenting institutional decisions and any resulting actions and organizing and storing such documentation in a manner that enables timely access to such documentation are central to principles of open, transparent and responsible government;
- governments emphasize both the proactive and voluntary disclosure of government information – particularly information of significant public interest related to policy-making, public health, public safety, economy, procurements and benefits;
- respect the privacy of individuals while public bodies are open and transparent with non-personal or aggregate-level information the public needs to know to make informed choices and decisions about how to protect themselves and to ensure fair distribution of risks and benefits among all members of society, including the most vulnerable and marginalized groups; and
- federal and provincial institutions leverage technology and innovation to advance the principle of transparency in a manner that meets the public interest and accords with the modern needs of a digital society. The modernization of access-to-information systems must focus on innovative approaches and new information technologies, supported by adequate human resources.
For privacy concerns, the commissioners suggested:
- interpreting digital transformation and privacy laws to recognize the fundamental nature of the right to privacy and apply it in a modern, sustainable way, by allowing for responsible innovation that is in the public interest and prohibiting uses of technology that are incompatible with Canadian rights and values;
- using privacy laws to ensure responsible data use and sharing that supports public health and promotes trust in our healthcare system and governments rather than seeing such laws as a barrier to data collection. Exceptions do exist in privacy laws to enable the collection, use and disclosure of personal information for public health purposes during a pandemic and other emergencies;
- ensuring emergency response and recovery measures involving the exceptional collection, use and disclosure of personal information without consent must be necessary and proportionate in scope, meaning they must be evidence-based, necessary for the specific purpose identified, not overbroad and time-limited.
- destroying personal information collected in support of emergency measures when the crisis ends, except where the purpose for which the information was collected extends beyond the end of the crisis, or for narrow purposes such as research, ongoing healthcare, or ensuring accountability for decisions made during the emergency, particularly decisions about individuals and marginalized groups.
The full submission can be read here:
Federal, Provincial and Territorial Information and Privacy Commissioners and Ombudsman Issue Joint Resolution About Privacy and Access to Information Rights During and After a Pandemic