Friday, March 10, 2017

Privacy and the use of census information for population health research

Professor Teresa Scassa has a very interesting comment on her blog about a recent case from the Federal Court of Canada, O’Grady v. Canada (Attorney General), 2017 FC 167. Her comment is here: Recent Federal Court Decision Examines Privacy and the Census.

The case itself is a judicial review of a decision of the Chief of Statistics to enter into an agreement with McGill University’s Faculty of Medicine to conduct a study examining perinatal outcomes in Canada. This sort of research collaboration and data matching happens all the time, but seldom is it objected-to and the discussions do not often end up in front of the courts.

The context, from the decision:

[3] In 2011, Statistics Canada and McGill entered into a Letter of Agreement to conduct a study that would assess infant mortality and newborn health by examining perinatal outcomes in Canada according to risk factors related to socioeconomic position, ethno-cultural background, and environmental exposure [Study]. In connection with the Study, record linkages were used to link information from the national birth record database and the 1996 and 2006 censuses. In order to minimize the privacy intrusion, the record linkages were performed in accordance with s 6 of the Statistics Act, RSC 1985, c S-19 [Statistics Act] by Statistics Canada employees, or deemed employees, and the composite records were stripped of direct personal identifiers before they were made accessible to McGill. The composite records were also restricted to Statistics Canada’s premises. Additionally, the usage of the record linkages was publicly posted on the Statistics Canada website.

The applicant complained to the Privacy Commissioner of Canada, who concluded that the applicant's personal information had not been improperly used.

[7] The Privacy Commissioner agreed that the Applicant’s census information met the definition of personal information, as defined by s 3 of the Statistics Act. Additionally, the Privacy Commissioner found that usage of census information in the Study was beyond the scope of the purposes for which it was collected, which is prohibited under s 7 of the Statistics Act. However, there was no evidence to suggest that the Applicant’s information had actually been used in the Study as her information had been excluded. Furthermore, even if the Applicant’s information had been used, Statistics Canada had the authority to do so under the Statistics Act. Consequently, the Privacy Commissioner found that the Applicant’s complaint was not well-founded.

The Court, in reviewing the decision by the Chief of Statistics, found that it was lawful as the use of the census data in this manner is consistent with the purpose for which it was originally collected.

[68] There is no doubt that census information is personal information, so the issue in this case is whether it was used “for a use consistent” with the “purpose for which it was obtained or complied….”

[69] The Supreme Court of Canada set out the “consistent use” test in Bernard, above:

[31] A use need not be identical to the purpose for which information was obtained in order to fall under s. 8(2) (a) of the Privacy Act; it must only be consistent with that purpose. As the Federal Court of Appeal held, there need only be a sufficiently direct connection between the purpose and the proposed use, such that an employee would reasonably expect that the information could be used in the manner proposed.

(emphasis in original)

[70] It is clear that Statistics Canada could not have contemplated the Study at the time of either the 1996 census or the 2006 census. Hence, the information collected by those censuses was not obtained specifically for the Study. However, the purpose of the Study is to compile and analyse statistics related to the health and welfare of Canadians, so that it complies with the purpose of the censuses and with Statistics Canada’s mandate.

The application was dismissed, but the Court noted it was premature overall:

[86] The real problem with this application is that it is premature. The Study has not yet been released or used. The Applicant speculates that personal information will be used and disclosed, but has produced no convincing evidence to support that position. Whatever I have said in this application, which is based solely upon the record before me, should not prevent anyone whose personal information is inappropriately used or disclosed from bringing the matter before the Court in the future.