Are we going too far with privacy?

Originally published in Media Magazine, Fall 2004 

The last time I wrote in this space I was about a case in Ontario’s Divisional Court with important implications for data access in Canada. A Toronto collection agency was fighting with MPAC, the Municipal Property Assessment Corporation, for access to an electronic copy of the assessment roll for the province

The roll contains, among other things, the assessed value for taxation purposes of every property in the province, as well as the names of the property owners, whether the owners support Roman Catholic or public schools, and so on

An adjudicator with the office of Ontario’s information and privacy commissioner had ordered the records released, saying he was bound by a previous Divisional Court decision directing the City of Toronto to release a database of political contributions to a Toronto Star reporter

But MPAC asked the court to review the order

While collection agencies don’t have the best reputation, and a request for the entire provincial roll to pursue bad debtors seems on its surface repugnant, I felt the principles at stake went far beyond such base emotional reactions. This was an important test case in the ongoing struggle for the access to public data

Alas, the court disagreed and in May it ordered the data withheld. It was just one of a couple of disappointing court decisions about that time; another decision clamped the lid on a series of drug-approval records that had previously been routinely available from Health Canada

In the assessment case, the three-judge panel reasoned that while there is a specific statutory authority in Ontario that allows for the paper record to be viewed at municipal halls, no such authority exists to force MPAC to release the electronic version

The decision is both good and bad for those of us interested in access to the electronic versions of public registries containing information about individuals, which also include land titles records, corporate filings and political contribution records

On the one hand, the court ruled on specific and limited facts, rather than making broad and general findings. It continues to accept that there are circumstances under which bulk versions of the registries can be released

And the court also made it clear that the identity of the requestor could make a difference, noting that in this case the purpose was purely commercial.The court left the door open; it might view a request made in the public interest differently

On the other hand, the court seemed to accept without much question MPAC’s argument that bulk release of the data would constitute an unacceptable invasion of personal privacy

In their decision, the judges wrote: “The commissioner ordered MPAC to hand over to (Security Recovery Group) an electronic record containing the personal information of millions of Ontarians, essentially free of charge.” The court said that in the circumstances,MPAC was within its rights to refer requestors to municipal halls to view the paper roll

In essence, the court accepted the notion that even though this information is and always has been public, the form that it takes makes a difference. Even though technology has marched on, our access is to remain as it has always been, to a static paper record

In her 2003 annual report, tabled in the legislative assembly in June, Ontario’s information and privacy commissioner Ann Cavoukian once again waded into this issue

Noting that before the Toronto Star case, her office had attempted to restrict access to such registries and she called on the Ontario government to address this issue

“If the entire content of these registries is readily accessible in electronic format, the personal information of citizens can be easily retrieved, searched, sorted, manipulated and used for purposes that have no connection to the original purpose for which the information was collected,” she wrote

“Our Acts [Ontario has parallel municipal and provincial acts] need to be amended to deal with this issue, and that can only take place after the various interests are identified and balanced appropriately.” Alberta already prohibits access to any records derived from public registries, and a few years back the Canadian Association of Journalists joined with other public interest groups in an unsuccessful effort to block an amendment to Manitoba’s act banning bulk—i.e., electronic—disclosure of personal information in public registries

A move to bring in a similar provision in Canada’s largest province would almost certainly be sold on the basis of protecting individual privacy, but the effect would be to deny the public and journalists access to important sources of information

We could be left without the ability to properly scrutinize political contributions or to analyze assessment records to find slum landlords

Ideally, if something is public, it should be public in all forms. Otherwise,we are left with the profoundly unfair situation whereby records collected at public expense for public purposes are only available to those with enough money to pay for them, either by taking the time to scan or copy paper records, or buying the electronic versions at whatever price agencies such as MPAC dictate

At the very least, any restrictions must include exemptions for legitimate journalistic inquiry. A move to clamp down on public registries would represent the largest rollback to date of traditional access rights

“If the entire content of these registries is readily accessible in electronic format, the personal information of citizens can be easily retrieved, searched, sorted, manipulated and used for purposes that have no connection to the original purpose for which the information was collected.” — Ontario information and privacy commissioner, Ann Cavoukian MEDIA, FALL 2004 PAGE 37 GOING TOO FAR TO PROTECT PRIVACY Canada already has some of the most restrictive privacy laws in the world. While privacy itself is something none of us would question, Canada’s laws go far beyond keeping private lives private

From the beginning, lawmakers chose the most restrictive definition for privacy protection, deeming any information about any individual to be out of bounds.The laws contain some exceptions to that broad definition. However, the exceptions tend to be applied and interpreted narrowly. The benefit of the doubt always goes to bureaucrats who administer freedom-of-information laws, who argue that personal details, and even information that could help lead to the identification of an individual, should be withheld

Equally distasteful is the fact that journalists are sometimes unable to obtain information about criminal matters that have already been dealt with in court, because that would reveal details of a person’s history with the law

Similarly, we are not allowed to know which property owners aren’t paying their taxes,because that would reveal details of their financial history

This slavish devotion to privacy chokes off information that really should be public. In my mind, criminals and scofflaws are not owed a debt of privacy to shield their activities from public scrutiny, yet that is what the law allows

I much prefer the approach of U.S. states, which deem all such records public unless they are specifically, by name, exempted. This approach allows for the protection of information that should be withheld from the public, and the release of the rest. The push towards broad, allencompassing privacy protection in Canada has led to what we face with public registries

Don’t make the mistake of thinking it will stop with the electronic versions. Once those are safely sealed off, it will only be a matter of time before we see calls to tighten access to the paper versions, perhaps by limiting their use to specific purposes. Don’t be surprised to hear an official say, “No looking at the assessment roll unless you can prove you are doing it to support a property tax appeal.” This doctrine of intended use already pervades the rationale that supports greater privacy, and if taken to its extreme would make many things reporters do impossible

Journalists and news organizations would do well to pay attention to Ontario’s privacy commissioner and participate in this debate before it is too late