All About Information

The Max Mosley privacy judgement has been handed down in favour of Mr. Mosley. Here’s a link to the award.

The much anticipated Blood Tribe decision has just been released by the Supreme Court of Canada, which dismissed the federal Privacy Commissioner’s appeal from the Federal Court of Appeal. Here’s a summary of the FCA decision. Looking forward to reading the case later today and will post a summary.

In a oral award issued on July 11th, Mr. Justice Elliot Myers of the BCSC ordered the forensic examination of a computer hard drive, declined to order the appointment of independent counsel and suggested the forensic expert was precluded from communicating the results of his analysis to the parties to whom records were produced.

The hard drive was in the custody of the plaintiffs and involved records relating to a fatal helicopter crash. The parties agreed that it contained relevant records, some of which were deleted prior to litigation and needed to be recovered. This caused the plaintiffs to hire a forensic computer specialist to retrieve and produce records to the defendants, but when the defendants asked for information about the methodology used by the specialist the plaintiffs refused. They claimed that providing the requested explanation would involve a substantial expense and, for whatever the reason, neither the defendants nor the plaintiffs invited the Court to assess or order the obvious mid-ground solution - simply ordering the plaintiffs to provide the information originally requested by the defendants.

In making his order (which entailed having the defendants’ forensic computer specialist administer agreed-upon search terms), Myers J. distinguished between the need for an order to give assurance that a search is done effectively and the need for an order to protect against bad faith conduct.

In ordering an inspection by an expert selected by the defendant’s, he said:

The real issue here is that the defendants cannot verify the quality or the thoroughness of the hard drive search because Mr. Camp has not provided them with the necessary information. Mr. Camp can only rely on the advice of Mr. Kojima that the hard drive analysis was done using the appropriate methodology; he did not presume to have the technical expertise to effectively supervise that exercise. Therefore, the defendants cannot rely on the obligation of counsel to ensure that all relevant documents are listed. The defendants are left with having to accept as a matter of blind faith that Mr. Kojima retrieved all relevant documents. That takes on a particular edge in this case because the former owner of the hard drive, Mr. Honour, is deceased. This is not a case where the owner of the hard drive can be examined for discovery as to the location of documents or discrepancies in the document list.

And declining to order the appointment of independent counsel:

With respect to the first rationale for [the mechanism of appointing independent counsel], there has been no allegation of improper deletion of documents (as opposed to deletion of documents in the ordinary course) or a skirting of the court rules. In that sense this application is not in the nature of an Anton Piller order.

The second rationale for the mechanism — concern with respect to the defendants seeing privileged or irrelevant documents — is a valid one. But this can be met by the forensic expert forwarding the results to Mr. Camp, who would then deal with the retrieved documents in the ordinary course.

Finally, Myers J. held that it was implicit in the order granted that the defendant’s forensic would not communicate the results of his search to the defendants and suggested he would deal with any questions about the validity of the expert’s process if necessary post disclosure.

Chadwick v. Canada (Attorney-General), [2008] B.C.J. No. 1225 (S.C.) (QL).

If you’re interested in the social media and privacy issue you might like reading Emily Gould’s “Exposed” article, which ran in the New York Times Magazine last weekend. You might also like perusing some of the 1200 comments that the article has spawned.

While many of the commenters are highly-critical of Ms. Gould’s self-centred article about her career as a self-centred blogger, only a few I read acknowledged the irony of entering the public forum themselves in publishing a comment. This may very well demonstrate irresistibility of online expression and the power and relevance of the social media phenomenon. Yes it will shape the law of information and privacy, but it has even greater socio-cultural significance.

I am an obvious fan of Web 2.0 and its potential, but in reading this article it struck me that the extent to which we are relying on online experiences to supplant real world experiences is troubling. Take Ms. Gould’s use of instant messenger technology:

But because we were so busy, we continued to I.M. most of the time, even when we were sitting right next to each other. Soon it stopped seeming weird to me when one of us would type a joke and the other one would type “Hahahahaha” in lieu of actually laughing.

And then, “Depending on how you looked at it, I either had no life and I barely talked to anyone, or I spoke to thousands of people constantly.”

The very best comment I read was from “Flynn” from Los Angeles, who reminds us about what is real in our increasingly virtual world. He tells Ms. Gould, “Turn off the computer, drive to Coney Island and jump in the ocean. Cleanse yourself and start all over again. You won’t be missing a thing.” Must be a surfer.

Finally a beautiful weekend in Toronto!  Here are some things I’ve read recently that you might find interesting.

• Alan Finder, “At One University, Tobacco Money is a Secret.” This is about a restrictive research funding agreement at Virginia Commonwealth University. It includes abnormally strict confidentiality provisions that have drawn some criticism. (New York Times)
• Peter Timmins, “NSW ADT sticks to ‘disclosure to the world’ but policy needs rethinking.” Mr. Timmins lays out some Australian law on the “disclosure to the world” principle, a privacy-protective principle raised in access to information law that deems the good intentions of a requester to be generally irrelevant. (Open and Shut)
• Information and Privacy Commissioner/Ontario, “2007 Annual Report.” Most interesting for me is the comment on privacy versus security in light of Virginia Tech and other recent events. Ms. Cavoukian says, “And our attention is drawn away from real issues at hand: bureaucratic inertia, misguided policies, inefficient practices, and poor judgement.” I don’t think this comment was meant to be a critique of our own educational institutions, who all can be seen to be working hard on this issue, but is nonetheless quite a pointed call to action!
• Linda Greenhouse, “Supreme Court Upholds Child Pornography Law.” A news report on the United States Supreme Court freedom of expression case (R. v. Williams) from last Monday, which the Times has also criticized. (New York Times)

I made contact with Peter Timmins through this blog, and have since been following his Open and Shut freedom of information and privacy blog.  I like the idea that blogging can help build a contact with someone almost exactly half-way around the world with similar interests. I also have a soft spot for Australia because after I articled Seanna and I spent a year there travelling around and camping. We had this idea that we could live on a $5 a day food budget, and still remember standing outside of a MacDonald’s debating about whether we should treat ourselves to an ice cream cone. We also drank a few $4 boxes of wine on that trip! An experience I’ll never forget, and an extremely beautiful country. Check out Open and Shut sometime.

See ya!

This Information Roundup comes to you from the Outer Banks in North Carolina, a special place for Seanna and me because we got married here a couple of years ago. Now we have Hugo, who’s on his second surf vacation in his first year, and might even get what’s going on as Seanna and I trade off on babysitting duties and on-water sessions.

Today, Seanna windsurfed at the “Canadian Hole” while Hugo and I experienced the wonders of sand. Then I windsurfed on the ocean-side downwind to our house in shoulder to head high waves. I am not the windsurfer I used to be, but had fun anyway and didn’t break anything.

Here are some things I’ve read on my vacation.

• Scott J. Carpenter, “Immunity Under the CDA Has Its Limits According to Two Recent Federal Court Decisions.” Summarizes two recent cases dealing with the U.S. Communications Decency Act and its speech-protecting provision - section 230 . I think internet publication and Web 2.0 is going to drive developments in privacy law for the next while, so these types of stories are of interest to me. (Proskauer Rose)
• Michael Simon, “Declaratory Judgement Approach to Burdensome Pre-Litigation Demand Tried and Rejected.” A good analysis of a novel case in which a party faced with an onerous pre-litigation document hold letter brought an application to seek protection that was dismissed for want of jurisdiction. (E-Discovery Team)
• K&L Gates, “Court Sets Protcol for Forensic Examination of Employment Discrimination Plaintiff’s Home Computers.” I’m particularly interested in home computer cases. The summary of a American case from late March includes a cut of the inspection order. (K&L Gates)
• Tresa Baldas, “AGs Tell Companies: Shred it, or Regret it.” A good reminder of the lowest of low hanging data security fruit. (Law.com)
• Pamela Hess, “Citing Academic Freedom, Law School Dean Defends Professor Who Wrote ‘Torture Memo’.” This is a news story on this memorandum, by Berkeley Law School Dean Christopher Edley Jr. (Law.com)
• The Sedona Conference, “Commentary on ESI Evidence & Admissibility.” I confess that I haven’t finished reading this yet, but I’ve been sitting on this post for too long waiting to find some quiet time to digest this 28-pager. It’s amazing this content is free. (The Sedona Conference)

Enjoy!

On April 2nd, the Alberta Court of Queen’s Bench issued a significant judgement on the Alberta Health Information Act, quashing an order by the Alberta OIPC that prohibited disclosure of prescription data to IMS Health.

The Court made two substantive findings. First, it held that the OIPC did not err in limiting the scope of its investigation to disclosures to IMS only, even though a determination on the issue it was investigating could affect other related programs and other parties. Second, and more significantly, it held that the OIPC erred in finding that the Act required consent to disclose data that could be used to profile or detail a prescriber - namely, information about how a prescriber chose to diagnose and treat a patient of a particular age, with a particular condition, and specifically what medication was used, in what dosage, and for how long.

The Court declined to make the order on the basis of IMS’s broader arguments about the nature of “work product information” and health information custodians’ right of expression, so its judgement is technical and confined in its significance (though it’s a nice statutory interpretation decision).

In essence, the Court held that the OIPC read a limitation on the “business card exception” in the definition of “health services provider information” too literally and too broadly in light of the exhaustive statutory definition of “health services provider information. ” This limitation - in section 37(2)(a) - limits the disclosure of business card information (e.g. a prescriber’s name, in the circumstances) where it would reveal “other information about a health services provider.” The Court held that “other information” must mean “other health services provider information” or “other information about the health services provider that cannot be disclosed under the HIA”:

A reasonable approach to statutory interpretation required the Commissioner to recognize that the presumption of consistent expression is only one indication as to the intention of the Legislature. There are also indications of the intention in the statutory context of the HIA. A reasonable decision-maker must consider the competing indications. Is it more likely that the Legislature intended “other information about the health services provider” to have a different meaning than “other health services provider information about the health services provider” because different words are used? Or is it more likely that the Legislature intended the qualification to an exception in ss. 37(2)(a) to drastically expand the scope of protected information under the HIA and to render the apparently exhaustive definition of “health services provider information” virtually meaningless. There is really no contest. The different language used pales in significance when compared with the overall scheme of the HIA. The only reasonable interpretation, when the full context is considered, is that “other information about the health services provider” in s. 37(2)(a) means “other health services provider information” or “other information about the health services provider that cannot be disclosed under the HIA”.

Interpreting s. 37(2)(a) in this way gives the subsection a limited but real role within the scheme of the HIA. It means that the Act’s permission to custodians to disclose business card information without consent applies only where that information does not result in prohibited disclosures under the HIA. Business card information is likely to occur in the same context, perhaps in the same document as other health services provider information. Indeed, it may be the business card information that causes the other information to be individually identifiable. In the absence of s. 37(2)(a), custodians might purport to comply with the HIA by editing out prohibited categories of information while still disclosing the business card information. Because of s. 37(2)(a), business card information in this context must not be disclosed if it would “reveal” the other prohibited information. This is, as I indicated, a limited role. But a limited role is much more to be expected with respect to a statutory provision that occurs as a qualification to an exception, rather than a role that drastically expands the scope and basic definitions of the HIA.

The Ontario Personal Health Information Protection Act does not protect the personal privacy of health care practicioners as does the Alberta health privacy statute. As for PIPEDA, the Privacy Commissioner of Canada has found that prescriber data is “work product information” rather than “personal information.”

IMS Health Canada, Limited v. Alberta (Information and Privacy Commissioner), 2008 ABQB 213 (CanLII).

Paul Broad and I published the first 2008 edition of the Hicks Information & Privacy Post. Here is our short lead editorial, “Canadian e-discovery enters next era.”

We’re happy to be back with our second year of the Hicks Information & Privacy Post - our quarterly newsletter about case law developments in privacy, access to information, the protection of confidential business information and the law of production.

This year promises to be a transition year for e-discovery in Canada, with the recent launch of the “Sedona Canada Principles” - the Sedona Canada Working Group’s twelve non-binding statements of principle intended to facilitate electronic discovery in Canada.

For those of you unfamiliar with e-discovery, it refers to the production of records in electronic form and is of critical concern to lawyers, individuals and businesses because the cost of locating and producing electronic records can make litigation unaffordable for even large businesses. There are also risks associated with electronic records that further complicate the discovery process.

Together with developing case law, the Sedona Canada Principles will provide authoritative guidance in the resolution of electronic discovery disputes in Canada. The “scope of production” case law we’ve reported on in this issue is already starting to reflect the proportionality concept - a concept embedded into a number of the Principles that demands the time and expense of any proceeding (and the parties’ production efforts) should be proportional to the dispute.

While the signs that the Sedona Canada Principles are having an influence is positive, there is also ample evidence in our newsletter that many Canadian litigants are not yet prepared for the challenges of e-discovery. The problem of raising the burden of electronic production late (and often after a court has already entered a production order) is a feature of five of the cases below, a pattern that shows that parties to litigation are not getting an early grip on production issues and costs themselves, let alone meeting with the other side to discuss those issues as suggested by the Principles. We hope these are simply adjustment pains, to be borne only as long as it takes for the Principles to become well-known and applied. It should be an interesting year!

The full edition is here. Please take a look.

Yesterday, the Ontario Court of Appeal held that a trial judge erred in finding a journalist in contempt and ordering him to pay over $36,000 in costs for failing to reveal the identity of a confidential source before the source was given a chance to come forward.

The journalist, Kenneth Peters of the Hamilton Spectator, was compelled to testify in a suit which alleged that two municipalities had improperly leaked confidential information to the media. The identity of his source was relevant, if not essential, to the claim.

Mr. Peters was first given an opportunity to testify only as to whether one of the defendants employed his source and, having refused, later given an opportunity to disclose the identity of an individual who accompanied his source but who had not been promised confidentiality. When Mr. Peters refused to answer this question, the trial judge ordered a hearing in which he was to “show cause” why the court should not find him in contempt. A day before the show cause hearing the confidential source came forward. The judge proceeded with contempt proceedings nonetheless, though he changed the charge to one of civil rather than criminal contempt.

In allowing the appeal, the Court of Appeal did not comment on the validity of the privilege claim other than stating that the trial judge ought to have assessed it against the Wigmore criteria, which in turn reflect the relevant Charter values. Instead, the thrust of the appeal judgement is about the restraint that judges should exercise in compelling testimony which reveals a source’s confidences when a claim of privilege fails. On this point, the Court’s essential finding is well-summarized from a quote it drew from a British Columbia Supeme Court judgement: “where members of the media are called to give evidence, it is incumbent upon courts to balance the necessity of having evidence before the court against the special role of the media as recognized by section 2(b) of the Charter.”

In the circumstances, the Court held that the trial judge did not show sufficient restraint:

At a minimum, the appellant should have been afforded the opportunity to consider his position in light of the fact that he had been ordered to disclose the confidential information. The appellant also should have been given the opportunity to consult with the confidential source to determine whether, in light of the court’s order, the source still insisted that the confidentiality be maintained.

Also based on the principle of restraint, the Court held that the trial judge erred in proceeding with a contempt hearing after the confidential source had come forward and erred in imposing a substantial costs award.

St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182.

On February 27th, the New Brunswick Court of Queen’s bench dismissed a counterclaim because the plaintiff (by counterclaim) had allowed documents that the defendant required for its defence to be destroyed.

After terminating its franchise agreement with the defendant, the plaintiff transferred a job order file on an over-bid construction project to the new franchisee, who destroyed the file. The defendant (by counterclaim) did not allege bad faith, but alleged that the plaintiff ought to have instructed the new franchisee to safeguard the files, which were essential to its defence. The Court rejected the plaintiff’s claim that the defendant did not call an available witness in favour of raising its spoliation defence. It also held that the plaintiff had a duty to preserve the job order files that was bolstered by its own termination letter, which said it would make the records available to the defendant in the event of litigation.

Elliott v. Trane Canada Inc., 2008 NBQB 79.