Thursday, January 25, 2007

Alberta Commissioner on Freedom of Expression and disclosure of personal information

The Information and Privacy Commissioner of Alberta released a very interesting order today, considering whether the right to freedom of expression in the Charter overrides the restriction on disclosure of personal information without consent. In this case, a shopper at Safeway was allegedly caught shoplifting. The "shopper" was an employee of another grocery chain and a representative of Safeway reported the incident to her employer, and she was fired. She then complained that Safeway had disclosed her information without her consent, in breach of the Personal Information Protection Act. At an inquiry under that Act, Safeway argued that the restriction on disclosure was unconstitutional. In the order, the Commissioner disagreed.

Order P2005-006

Summary: The Complainant, an employee of another food retail chain, entered a store of Canada Safeway Limited (the “Organization”) while wearing her employee uniform. The Complainant gathered several goods, paying for some and not for others. When the Complainant left the store, security for the Organization stopped the Complainant and accused the Complainant of theft. The unpaid items were returned and the police were notified. Upon review of the incident, no charges were laid.

The Organization, without the consent of the Complainant, advised the Complainant’s employer about the incident. As a result the Complainant was dismissed. The Complainant initiated a complaint with the Office of the Information and Privacy Commissioner, and the matter proceeded to a written inquiry. The Organization argued that it did not require consent to disclose personal information of the Complainant under section 7(1)(d) (consent to disclose) of the Personal Information Protection Act, (the “Act”) as the section is contrary to section 2(b) (freedom of expression) of the Canadian Charter of Rights and Freedoms (the “Charter”). The Organization also argued that if it is found that section 7(1)(d) of the Act is not contrary to the Charter, then section 20(b) (disclosure pursuant to a statute of Canada that authorizes or requires disclosure) of the Act and section 20(m) (disclosure reasonable for investigation or legal proceeding) of the Act apply and permit the disclosure of the Complainant’s personal information.

The Commissioner found that section 7(1)(d) of the Act did not contravene section 2(b) of the Charter; that sections 20(b) and 20(m) of the Act did not authorize the Organization to disclose the Complainant’s personal information without consent; and that the Organization disclosed the Complainant’s personal information contrary to section 7(1)(d) of the Act.

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