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OPEN COURTS AND TRIBUNALS OR OPEN SEASON ON PERSONAL INFORMATION?: PUBLISHING DECISIONS ON THE INTERNET

posted by:Carole Lucock // 11:17 PM // January 31, 2006 // ID TRAIL MIX

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The Internet has greatly expanded access to the decisions of courts and administrative tribunals, which enhances an open, accessible and accountable system of justice. Courts and tribunals across Canada provide online access to their decisions, which is further enhanced by services such as those provided by the Canadian Legal Institute, a not-for-profit organization initiated and funded by the Federation of Law Societies of Canada to make primary source legal information freely available on one website.

Such ready access to decisions has also brought questions about its impact on privacy, particularly when a significant amount of personal information is disclosed in the decision and is readily accessible to anyone who wishes peek.

This is illustrated by an investigation report issued earlier this year by the Information and Privacy Commissioner of Saskatchewan, Gary Dickson. The Commissioner had been asked to investigate the Saskatchewan Automobile Injury Appeal Commission’s practice of publishing the full text of its decisions on its website. Commissioner Dickson was of the opinion that this practice was not in compliance with the provisions of Saskatchewan’s access to information and protection of privacy legislation and recommended that the Automobile Injury Appeal Commission amend its practice by masking the identity of claimants, thus accommodating the goal of public accountability while protecting the privacy of a claimant.

The Commissioner’s report provides a thorough and thoughtful analysis of the issues and the interests at stake. The Commissioner notes that:

Each decision typically includes information about the diagnosis, treatment and care of the individual. It typically reflects things said by the applicant and things said about the applicant by others including medical experts. It may include gross income, income tax, CPP, EI and total deductions. It may discuss living arrangements, children and relationships. The information about the physical and mental health of the applicant is detailed and extensive. We expect that if an applicant had a mental illness, HIV/AIDS, a miscarriage, an abortion, and that was viewed as somehow relevant in the Commissioner’s deliberations, that would be described in the decisions as it appears on the website.

The Commissioner recognizes that privacy rights are clearly implicated when personal information revealed. He also raises more pragmatic concerns related to facilitating identity theft as well as noting the additional negative consequences that might flow from this practice including: the shame, embarrassment or discrimination that might ensue; the potential impact on the personal safety of victims of domestic violence; and the opportunities for data profiling and marketing by private business.

The Commissioner’s recommendation to mask identity seems like a reasonable solution. It was not followed. The Saskatchewan Automobile Injury Appeal Commission continues to publish this information on its website, which was a subject of comment by the Information and Privacy Commissioner in his 2004-2005 annual report to the Saskatchewan legislative assembly.

Apart from raising significant issues about the real teeth in public sector legislation that purports to give citizens privacy protection in the records held about them by government yet only provides the Commissioner with the power to make ‘recommendations’ that can be followed or rejected at will, it raises more fundamental questions concerning the principles that should be adopted as courts and tribunals move to grant unprecedented access to their decisions via the Internet.

The Canadian Judicial Council, a body comprising the chief justices and associate chief justices of Canada’s superior courts, has spent some time reviewing this issue in the context of publishing the decisions of courts. It developed and disseminated a discussion paper, Open Courts, Electronic Access to Court Records, and Privacy, which noted that courts across the country were using different strategies to address the problem of access to personal information through access to judgments. For example, some jurisdictions had stopped publishing family law decisions on the Internet. The discussion paper has been followed up with a recommended protocol on the use of personal information in judgments.

The protocol seeks to maintain and encourage an open system of justice, including the publication of decisions, unless there is an express publication ban in place. It recommends that privacy interests be accommodated by judges by omitting certain personal information in their reasons for judgment. The protocol devises three levels of protection: personal data identifiers, legal prohibitions on publication and discretionary protection of privacy rights.

Personal identifiers related to information such as date of birth, SIN number, credit or bank account information – information, which is subject to misuse from such purposes as identity theft. In general the protocol notes that it is not generally necessary to include such information and recommends omitting it from judgments; however, in cases where such information is necessary to the judgment then the protocol recommends considering obscuring it by removing elements of it.

When a publication ban is in place, the name of an individual is typically masked. The protocol recognizes that removal of a name is not always sufficient to mask identity and recommends the omission other types of information such as: personal identifiers and acquaintance and location information.

Finally, the protocol addresses discretionary privacy rights of those who while not protected by a publication ban should nonetheless be protected, these would generally be restricted to cases where there “may be harm to minor children or innocent third parties, or where the ends of justice may be subverted by disclosure or the information might be used for an improper purpose.”

No doubt discussion of these matters will continue into the future and courts and tribunals will be challenged to review their practices in this changed environment. Commissioner Dickson notes the important distinction between allowing a person to attend and review a record or decision and posting it on the Internet. “I find that there is a ‘practical obscurity’ of paper files … that no longer exists once the report is posted to the website.”

While the concept of an open system of justice may not have been well served by practical obscurity, undoubtedly privacy interests were, and we now have to face the thorny issues of how to accommodate both in the wide-open world of the Internet.

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