The Liberal Party of Canada was in a B.C. courtroom Monday to commence its opposition to provincial privacy commissioners investigating how its party and others handle your personal information, should it get a hold of it.
After the B.C. Office of Information and Privacy Commissioner (OIPC) ruled on March 1, 2022 that federal political parties are subject to the province’s Personal Information Protection Act (PIPA), federal parties collectively and immediately applied for a judicial review on constitutional grounds.
The judicial review application ceased further investigation by the OIPC, which had received complaints from three British Columbians, who were unsatisfied with the responses from the Liberal, Conservative, New Democrat and Green parties to their requests for what personal information the parties held on them.
The Liberal party has since made submissions to B.C. Supreme Court, including on behalf of co-applicants, the Conservative Party of Canada and New Democratic Party of Canada.
“It’s sometimes overwhelming to deal with the issue of constitutional tests,” said Liberal lawyer Cathy Beagan Flood of Blake Cassels Graydon LLP in her opening statement to Justice Gordon Weatherill on Monday.
Sometimes?” quipped Weatherill, who went on to jest that it’s “nice to see the federal political parties working together on something.”
At issue this week for Weatherill is whether or not to approve the judicial review.
Flood and fellow lawyer Jenna Green made four overarching arguments to Weatherill aimed at ultimately quashing the OIPC ruling: one, rules governing parties are set out in the Canada Elections Act; two, Parliament has chosen not to subject parties to general privacy legislation; three, PIPA conflicts with federal legislation that Parliament has decided not to extend to provincial law; and four, PIPA infringes on civic participation in elections as information requests would bog down parties.
Flood said “access requests could impede the political process” and the “main goal is to advance participation in elections.”
As such, there is no access to information right in the act at all, with respect to political parties, although existing guidelines by the Office of the Privacy Commissioner of Canada were noted by Flood, and those guidelines state political parties “should give individuals access to their information upon request.”
The OIPC complainants, whose names are withheld, claim their rights under PIPA extend to federal political parties as organizations. And if that holds true then parties are required to disclose their personal information holdings.
The OIPC has not ruled on the merits of the complaint; however; that investigation and decision was put on pause after the application for judicial review was made.
It’s understood that the OIPC could investigate the case if the higher court confirms it has the power. For now, according to submissions from the complainants the case is “held in abeyance.”
The matter has meandered through the courts and been adjourned three times until now; the Liberals sought another adjournment last month to await the outcome of proposed regulations concerning this issue found in Bill C-65.
According to submissions, the amendments would require privacy policies for parties become publicly available, drafted in plain language, discuss what information is collected and used, require “appropriate” protection measures and prohibit selling information, among other clauses.
But Bill C-65 does not appear to speak to access rights to that information.
The complainants opposed further adjournment in their response filed by Jason Herbert at DLA Piper and Young Park and Ron Davis of Fogler, Rubinoff LLP.
The complainants stated the proposed bill is “irrelevant to the court’s review of the [OIPC] decision, and provides no possible basis to justify an adjournment.”
“Such an adjournment would cause further undue and indefinite delay of this proceeding, which has been pending since April 2022 and has already been adjourned three times.”
And, stated the lawyers, “the adjournment requested by the [Liberals] will indefinitely delay the OIPC’s investigation and adjudication of the complainants’ complaints against the [parties], causing substantial prejudice to the complainants.”
The case has drawn interest from government transparency advocates such as the the BC Freedom of Information and Privacy Association (FIPA).
“The [federal political parties] are in an inherent conflict of interest when dealing with the personal information of the electorate. They legislate private and public bodies to constrain the collection, use, disclosure, destruction, and retention of personal information, yet advocate for the absence of legal constraints on their activities. They seek exemption precisely because they benefit from the lack of constraints,” stated FIPA on the case.
Vincent Gogolek, former FIPA executive director, stated to Policy Options that “federal parties, which prefer laxer federal privacy laws, are hoping to avoid having to meet B.C.’s more stringent requirements regarding personal information without actually saying that they are opposed to better protection of personal information.”
