Wendy Wagner Maureen L. Murphy Martin Lapner. Access to Information and Recent Developments in Privacy Law

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1 Wendy Wagner Maureen L. Murphy Martin Lapner Access to Information and Recent Developments in Privacy Law

2 Disclaimer This presentation is intended for educational purposes only and is not intended to be used as legal advice. 2

3 Life Sciences Group Seminar Series Wendy Wagner Partner Maureen Murphy Partner Martin Lapner Partner

4 Access to Information Access to information regimes create a presumptive right of access to information held by government institutions, subject to limited and specific exemptions Federal: Access to Information Act R.S.C c. A-1 Provincial: various acts, e.g. Ontario: Freedom of Information and Protection of Privacy Act, R.S. O. 1990, c. F. 31 Processing of Requests 4

5 Exemptions to Disclosure (ATI Act) s. 13: information obtained in confidence from a foreign state s. 14: conduct of Federal/Provincial affairs s. 15: conduct of International affairs/defence of Canada s. 16: injury to law enforcement, conduct of investigations s. 17: threat to individual safety s. 18: trade secrets or valuable financial, commercial, scientific or technical information of Canada s. 19: personal information s. 20: third party information s to 20.4: special exemptions for specific departments s. 21: advice or recommendations to government/account of consultations or deliberations/government negotiation plans/government personnel or organizational plans s. 22: testing procedures, test and audits s. 23: solicitor-client privilege See H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13: in addition to the third party exemption, a third party may raise s.19 and possibly other mandatory exemptions 5

6 Third Party Exemption 20(1) Third party information subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains: (a) trade secrets of a third party; (b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party; (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of a third party; or (d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party. 6

7 Third Party Exemption s. 27(1): Notice to third parties must be given if a government institution intends to disclose records/information which the institution has reason to believe might contain information described in s.20(1)(a) - (d) Minister of Health v. Merck Frosst, 2009 FCA 166: decision of the SCC (argued November 2010, decision pending): Citing Air Atonabee: the Act does not require notice to a third party before disclosure of information relating to that party except in the circumstances set out in section 28(1). Where the head of the institution considering all the relevant evidence before her or him concludes that the information requested is not of a character referred to in that section, notice to the third party is not required, will not be ordered by the Court and no right to apply for review under section 44(1) accrues (para. 38). Other central issues include: - what is confidential/trade secret information? e.g. compilations of publicly available information - what burden of proof must be met by the third party under s.20(1)(c)? If notice is given: s. 27(3)(c): third party has 20 days to make representations as to why the information should not be disclosed, subject to an extension (s. 27(4)) s. 44: if a decision is made to disclose, the third party may appeal this decision to the Federal Court within 20 days 7

8 Health Canada Notices Routine requests for NDS; SNDS; Health Canada correspondence (internal and external); meeting minutes and reviewer s notes Adverse Drug Reaction reports Approach to Response: request extension if required indentify unpublished, confidential information indentify inaccurate, misleading information clearly indicate information to redact/expurgate in accordance with reasonable severability Provide detailed explanation in writing to support redactions ongoing dialogue 8

9 Health Canada Notices In the context of an NDS/SNDS or an ADR report, Health Canada is prepared to consider as exempt: Name of employees/patient identifiers 19(1) Reported events for which no causal link can be established and for which there is no warning in the product monograph 20(1)(c) see Astrazeneca, 2005 FC 646 formulation of dosage form - 20(1)(a)(b)(c) method of manufacture of drug substance or dosage form - 20(1)(a)(b)(c) information which reveals batch sizes - 20(1)(a)(b)(c) limits, specifications, test parameters, and specific descriptions of test methods [20(1)(b)(c)], provided they are not compendial or recommended by the Health Protection Branch test results - 20(1)(b)(c) specific, unpublished preclinical and clinical trial information - 20(1)(b)(c) 9

10 Con t reviewer s comments ONLY where they contain specific third party information which could be severed as above - 20(1)(b)(c). Careful review of the comments will be necessary to determine which comments contain information which is confidential. Comments which are not entirely favourable cannot automatically be exempted it is necessary to justify the redaction on the ground that it contains confidential data or possibly inaccurate/misleading Inaccurate/outdated expiry periods - 20(1)(b)(c) information regarding unmarketed packaging - 20(1)(b)(c) provided the information has never been released information on Investigational New Drug Submissions [20(1)(b)(c)] except where they have been used in support of an approved New Drug Submission, Supplemental New Drug Submission, etc. names of suppliers - 20(1)(b)(c)(d) names of laboratories, individuals, or companies on contract to the third party - 20(1)(b)(c)(d). 10

11 Con t Health Canada normally will not protect the following types of information: names of Health Canada employees Dates on correspondence Draft labels and draft product monographs, unless they contain information not appearing in the final version which is considered confidential Study numbers, unless the study number is considered confidential and there is evidence of the harm caused by its disclosure administrative information e.g. number of volumes of submissions Published studies: but see Janssen-Ortho v. Canada (Minister of Health), 2005 FC 1633, aff d 2007 FCA 252: Although the information in dispute is largely a description of the findings in published studies which would therefore normally be disclosed, the fact that JOI considers the findings to be accurate and trustworthy has not been publicized and would only become known through disclosure. Accordingly, JOI s reference to published studies will not be disclosed. 11

12 Submissions to Government Confidentiality may be difficult to maintain for requests for access to submissions to government departments to influence government policy H.J. Heinz Company of Canada Ltd. v. Canada (Attorney General), 2006 FCA 378: Submissions to CFIA/AG Canada about the size of baby food containers (competitive issue) Section 20(1)(b): [23] The communications in question here are all communications by a regulated entity to its regulator dealing with changes to the regulatory regime. Even if Heinz had a subjective expectation that such communications would not be disclosed, there could be no objective basis for such an expectation. Changes to a regulatory regime are matters of public interest. The public has a legitimate interest in knowing the extent to which regulated entities have influenced the regulator and for whose benefit. Section 20(1)(c): Response: [28] Heinz also sought to shelter the Records in question under paragraph 20(1)(c) which deals with records whose disclosure could affect a third party s competitive position. In this case, Heinz says that the disclosure of its position on regulatory change would allow its competitors to challenge the position. With respect, this is the very raison d'être for access to information legislation. It exists to allow others, including competitors, to take issue with special pleadings. identify propriety data or confidential information within the submission exceptional, compelling and detailed harm-based arguments 12

13 Recent Decisions Ontario (Public Safety and Security) v. Criminal Lawyer s Association [2010] S.C.J. No. 23 A right of access to information is guaranteed by s.2(b) of the Charter if the information is needed to promote meaningful discussion on matters of public interest Brainhunter (Ottawa) Inc. v. Canada (Attorney General), 2009 FC 1172 the whole of a bid for IT professional services could not be exempted on the basis of having perfected a method of structuring bid proposals; specific methodologies were redacted Oceans Limited v. Canada Newfoundland & Labrador Offshore Petroleum Board, 2009 FC 974 Letters by an unsuccessful bidder about a bid were not financial, commercial, scientific or technical as they did not refer to technical information or commercial practices particular to the applicant Appleton & Associates v. Canada (Privy Council Office), 2007 FC 640 Adds to a long list of decisions that a third party cannot object that the government institution is prepared to give more than what was asked for ; there is no freestanding exemption for settlement negotiations but rather disclosure must interfere with ongoing negotiations to fall in 20(1)(d)

14 Provincial FIPPA Legislation Ontario FIPPA, s. 17(1) 17(1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied; (c) result in undue loss or gain to any person, group, committee or financial institution or agency 14

15 Provincial FIPPA Legislation Ontario FIPPA, s. 18(1) 18(1) A head may refuse to disclose a record that contains,... (c) information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; (d) information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario. 15

16 Provincial FIPPA Legislation Release of Information in Product Listing Agreements between manufacturers and the Executive Officer of the Ontario Public Drug Program is an ongoing issue On January 13, 2010, the Information Commissioner released Orders PO-2863; PO-2864; PO-2865 Information that could be used to calculate volume discounts and other value for money conditions held to be exempt from disclosure under the Ministry s exemption: The information about how much a named manufacturer paid the Ministry as a volume discount amount and what other specific financial and value for money conditions a manufacturer agreed to provide to the Ministry could be used by other potential bulk prescription drug purchasers as a discount standard or price goal to be obtained from the drug manufacturers Data that identified individual companies and payments made to the Executive Officer on a quarterly basis were released: As the payments listed in the records are not broken down per drug product, I find that the information at issue would not reveal the specific financial details of the listing or pricing agreements entered into between the Ministry and the drug manufacturers for individual drugs Rx&D and several member companies commenced judicial review actions against the Ontario Ministry of Health and Long-Term Care (Notice issue) and the Information Commissioner of Ontario (Notice issue and substantive issue regarding release of quarterly payment data) 16

17 Provincial FIPPA Legislation Order PO-2898 issued June 28, 2010 upheld non-disclosure of Schedules to a product listing agreement between a drug company and the Executive Officer, under the Ministry s harm based exemption: : I find that the disclosure of the information at issue could reasonably be expected to discourage drug manufacturers in the future from negotiating large volume discounts and other favourable financial terms with Ontario, out of concern that this information could be used by their other public and private sector customers seeking to negotiate similar discounts with the drug manufactures The requester s argument that there was a compelling public interest in disclosure of the schedules which overrides the Ministry s exemption was rejected. *** The MOHLTC and manufacturers are addressing ongoing requests for access to records relating to summaries of current listing agreements and payment summaries which are the subject of appeals before the Information Commissioner see administrative Order PO-2953 and PO None of the Information Commissioner decisions to date has considered the application of the third party exemption to the information 17

18 The Broader Public Sector Accountability Act, 2010 the BPSAA amends the Ontario FIPPA to make hospitals subject to the Act FIPPA will apply to hospitals as of January 1, 2012 but is retrospective to January 1, Records that came into a hospital custody/control on or after January 1, 2007 are subject to the Act The amendment does not change rues applicable to personal health information the Personal Health Information Protection Act, 2004 will continue to apply As of January 1, 2012, FIPPA will be amended so that certain types of hospital records will be excluded from the Act, including Records that relate to the operations of a hospital foundation The administrative records of a health professional in relation to their personal practice Records that relate to charitable donations made to a hospital

19 Tips For Requests Simple and narrow one drug product date range Name document categories that are known to Health Canada Expense Delay 19

20 Wendy Wagner Partner Ottawa Phone: (613) Fax: (613)

21 Recent Developments in Privacy Law

22 Overview Privacy Framework in Canada Recent Legislative Changes Breach Notification Marketing Recent Court Decisions 22

23 Privacy It's about the next 20 years. In the '20s and '30s it was the role of government. '50s and '60s it was civil rights. The next two decades are going to be privacy. I'm talking about the Internet. I'm talking about cell phones. I'm talking about health records and who's gay and who's not. And moreover, in a country born on the will to be free, what could be more fundamental than this? TV Series: The West Wing, episode: The Short List 23

24 Privacy Why? Individual Autonomy Technology 24

25 Privacy Framework How is Privacy Regulated in Canada? Various laws across Canada Federal: Personal Information Protection and Electronic Documents Act ( PIPEDA ) Provincial: Quebec, Alberta, British Columbia 25

26 Privacy Framework How is Privacy Regulated in Canada? Privacy laws (including PIPEDA) establish rules to govern the collection, use and disclosure of personal information All Canadian privacy legislation is consent based 26

27 Privacy Framework What is PIPEDA? Goal is to balance: Right of privacy Business purposes 27

28 Privacy Framework What is Personal Information? PIPEDA defines personal information broadly Information about an identifiable individual Exception information on a business card Includes information in any format 28

29 Recent Legislative Changes Privacy Breaches: Are you prepared for a privacy breach? Loss, theft, or misuse of personal information Electronic or physical breaches 29

30 Recent Legislative Changes Proposed Changes to PIPEDA Bill C-29 Introduced May 25, 2010 Died with the election 30

31 Recent Legislative Changes Breach Notification Bill C-29 proposed breach notification requirement Report material breaches to federal Privacy Commissioner Notify individuals where real risk of significant harm 31

32 Breach Notification Recent Legislative Changes Alberta s Personal Information Protection Act Imposes breach notification Notification required where personal information is lost, inappropriately accessed or disclosed and there exists a real risk of significant harm to an individual Notification not required in every case 32

33 Marketing How are addresses collected? Contests? On website? Do customers know how their addresses will be used? 33

34 Marketing SPAM unsolicited commercial Bill C-28 Fighting Internet and Wireless Spam Act Introduced May 25, 2010 Received Royal Assent on December 15, 2010 Consent required for electronic messages (intended for commercial activity) 34

35 Marketing SPAM unsolicited commercial Consent Implied for existing business relationship Express where no pre-existing relationship Opt Out must be available 35

36 Latest Developments Federal Bill C-28 Canada s anti-spam law Amends PIPEDA to prohibit spyware and dictionary attacks Electronic addresses and personal information cannot be collected by a computer program that generates, searches for, and collects, electronic addresses, without consent Use of an electronic address or personal information collected in that manner is also prohibited without consent 36

37 Recent Case Law Nammo v. Transunion of Canada Inc., 2010 FC 1284 Applicant, Mr. Nammo, claimed that the respondent, TransUnion, disclosed inaccurate personal information to a bank in connection with a loan application The loan was refused Awarded damages of $5,

38 Recent Case Law Jones v. Tsige, 2011 ONSC 1475 Plaintiff and defendant were employees of the Bank of Montreal where Defendant accessed plaintiff s banking records repeatedly Plaintiff sued Defendant for invasion of privacy The Court concluded that there is no freestanding right to privacy at common law, but noted that PIPEDA applies to the banking sector 38

39 Recent Case Law Employee s City of Ottawa v. Ontario, 2010 ONSC 6835 An individual requested disclosure of personal s sent over an employee s work The Ontario Divisional Court confirmed the City s refusal to disclose the s Disclosure would not facilitate the purposes of freedom of information legislation, namely scrutiny of government action or citizen participation in democracy Disclosure would also undermine the privacy rights of individuals - another goal of the legislation 39

40 Recent Case Law Employee s (continued) R. v. Cole, 2011 ONCA 218 High school teacher was charged with possession of child pornography after a school technician discovered pictures on teacher s work laptop Main issue was whether teacher had a reasonable expectation of privacy Held: teacher had a reasonable expectation of privacy as the school board gave the teachers possession of the computers and explicitly allowed their personal use 40

41 Questions/Comments 41

42 Thank You Maureen L. Murphy Tel: (613) Martin Lapner Tel: (613) montréal ottawa toronto hamilton waterloo region calgary vancouver moscow london