Privacy Law Nightmare
I wrote Sunday about the bureaucratic maze faced by a family who ran into a wall when trying to access information about a family member missing in Syria for three years. Federal privacy officials told Kathryn Murray she couldn't get the requested documents relating to her missing daughter, Nicole Vienneau, without Nicole's permission. It's a cliché to say it's Kafkaesque, but it is.
Since Sunday, I've heard from many readers in similar circumstances, frustrated by officials who cite the law when withholding important information, including one woman who couldn't get what she needed relating to her husband who died on federal property.
The sad thing is it doesn't have to be this way, according to former privacy commissioner George Radwanski. He points out the letter of the law actually permits disclosure in a case such as the Vienneau case. Radwanski notes:
Section 8 of the Privacy Act provides:
"((2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed … (m) for any purpose where, in the opinion of the head of the institution, (i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or (ii) disclosure would clearly benefit the individual to whom the information relates."
What are known as "8(2)(m) disclosures" are permitted under the Act precisely to deal with exceptional situations like this one, where either the public interest or the interest of the person to wjom the information pertains clearly appears to outweigh the normal importance of protecting personal information. "Public interest disclosures" under this section are sometimes made, for instance, when a person regarded as a dangerous sexual offender is being released into a community.
The head of the government department or agency that holds the personal information in question has sole discretion to make such a disclosure. He or she is required to give the Privacy Commissioner advance notice of the intention to make such a disclosure, and the Commissioner could recommend that the disclosure is not warranted, but the Commissioner's permission isn't needed and the Commissioner cannot find such a disclosure to be a breach of the Privacy Act since the "in the opinion of" clause provides absolute discretion to the departmemnt head. Conversely, of course, the Privacy Commissioner cannot order an 8(2)(m) disclosure.
Radwanski suggests Nicole Vienneau's family - or others in the same boat - can contact the privacy commissioner and ask for an opinion that an 8(2) m) disclosure would be reasonable and appropriate. Adds Radwanski: "I hate to see it when the government, or anyone else, tries to make statuatory privacy rights look like an obstacle to common sense or basic fairness and decency, which they seldom are."