PIPEDA (Personal Information Protection & Electronic Documents Act) came into effect in the Province of Ontario on January 1, 2004. It provides for the protection of personal information, as defined by the Act. The Internet and its vast ability to gather, use, and distribute personal information, with or without your knowledge or consent, provided much of the impetus for the Act.
The Council of Private Investigators - Ontario and other interested parties have long been working with our lawmakers to both understand and influence the letter and intent of PIPEDA and to fully appreciate its impact on individuals and corporations.
The Act governs the collection, use and disclosure of personal information by organizations in the course of commercial activity. Under the Act, personal information is information about an identifiable individual and includes information in any form - paper, electronic, or any other medium.
Personal information includes such things as:
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name, age, weight, height
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medical records, credit records, loan records
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income, purchases, spending habits
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employment history, record of absences
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race, ethnic origin, colour
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blood type, DNA code, fingerprints
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marital status, religion
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education
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home address and telephone number
Additionally, the Federal Privacy Commissioner has consistently ruled that information gathered from surveillance is personal information under the Act.
An organization must have the consent of the individual in order to collect, use, and disclose personal information. This is a very broad and powerful statement within the Act. Notwithstanding, the Act does recognize that there are conditions and situations where exemptions are appropriate and they have made provisions for these. Most notably, exceptions have been provided for the collection of personal information that is relevant to the work we do for our clients.
These exemptions include:
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if knowledge and consent would compromise the availability or accuracy of the information and collection is required to investigate a breach of agreement or contravention of a federal or provincial law; or
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if the information is publicly available
Circumstances where organizations may use personal information without the knowledge or consent of the individual may include:
- if the organization has reasonable grounds to believe the information could be useful when investigating a contravention of a federal, provincial or foreign law and the information is used for that investigation;
- if it is publicly available;
- if knowledge and consent would compromise the availability or accuracy of the information and collection is required to investigate a breach of an agreement or contravention of a federal or provincial law
There are individuals or bodies to whom, or circumstances under which, an organization may disclose personal information without the individual's knowledge or consent. These include:
- a lawyer representing the organization;
- a government institution or investigative body for the purpose of enforcing, carrying out an investigation, or gathering intelligence relating to any federal, provincial or foreign law; or suspects that the information relates to national security or the conduct of international affairs;
- to collect a debt the individual owes to the organization;
- to comply with a subpoena, a warrant or an order made by a court or other body with appropriate jurisdiction, or if it is otherwise required by law; or
- if it is publicly available
In addition to allowing the collection, use and disclosure of publicly available personal information, the Act allows collection and use of personal information that is not publicly available if the individual's knowledge and consent would compromise the availability or accuracy of the information and collection is required to investigate a breach of an agreement or contravention of a federal or provincial law. An obvious agreement is an insurance policy. The "law" is any law relating to fraud.
In our view, PIPEDA changes little from what should already have been. Investigations cannot be entered into without valid reasons and must be conducted with due regard to a person's reasonable expectation of privacy.
Clients should be concerned as to whether or not the private investigators and agencies they use are totally familiar with this legislation. We believe that membership in the Council of Private Investigators is an indication of this.
The Council was alone in its representation of private investigators and their clients at the various hearings in Ottawa and Toronto and in various submissions concerning this legislation. Our efforts continue as the legislation and its regulations are refined and we prepare for the introduction of an Ontario act to replace the federal legislation.
If you would like any additional information concerning this legislation or would like to discuss any aspect of it and our reaction to it, please contact Charlotte M. Urquhart, Vice President and Privacy Officer.
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