The court quashed a decision of Alberta’s Information and Privacy Commissioner for the City of Edmonton to destroy a data base containing personal information collected by pawnshops. The court found that the Commissioner had erred in his interpretation of municipal law as it related to privacy law.

24. February 2009 0

Administrative law – Decisions of administrative tribunals – Privacy commissioner – Freedom of information and protection of privacy – Disclosure – Public body – Police – Municipal employees – Electronic records – Collection – review – Standard of review – Correctness

Business Watch International Inc. v. Alberta (Information and Privacy Commissioner), [2009] A.J. No. 24, Alberta Court of Queen’s Bench, January 8, 2009, J.B. Veit J.

An Edmonton pawnshop owner had initiated a test case by complaining to the Information and Privacy Commissioner about the City of Edmonton’s Business Licence By-law which requires pawnshops to collect from pawnors certain personal information about themselves together with a complete description of the goods pawned and which allows that information to be provided to the Edmonton Police Service.

Pursuant to the By-law, Edmonton’s City Manager had instructed pawnshops and second-hand stores to record the information required by the By-law on an electronic database. The applicant company had executed a contract with the City of Edmonton pursuant to which the Applicant managed the database containing the information collected by the pawnshops and provided that information only, and exclusively, to the police. The Applicant provides a similar service in many other cities in Alberta and in many other Provinces across Canada.

The Information and Privacy Commissioner ruled that because of the contract between the City of Edmonton and the Applicant, the personal information in the hands of the Applicant was collected for the City; the personal information thus collected was in the hands of the City; and, the Applicant was an employee of the City. The Commissioner found that the City did not have the authority to require second-hand stores and pawnshops to upload a pawnor’s personal information to the database, and that the City had not taken reasonable steps to safeguard pawnors’ personal information. In the result, the Commissioner found that the City and the Police had contravened sections 33 and 34 of the Freedom of Information and Protection of Privacy Act. The Commissioner ordered the City to destroy the Applicant’s database.

On an application for judicial review, the court was asked to quash the Commissioner’s orders, including the order relating to the destruction of the database.

The court held that the Commissioner had erred in his analysis of the relationship between the City and the Police Service. Municipal law lay at the core of the Commissioner’s substantive decision. Because municipal law was not within the Commissioner’s general or specific expertise and because the Commissioner’s decision included a determination relating to employment law which is of central importance to the legal system, the Commissioner’s decision was reviewed on the basis of correctness rather than reasonableness.

The Commissioner erred in his interpretation of municipal law as it related to privacy law. A municipal police force is, for purposes of privacy law, a public body separate from its host municipality. Many conclusions flow from this separation: personal information collected by a private organization – such as a pawnshop or a second-hand store – which is collected pursuant to legislative authority – here a municipal by-law – and is properly transmitted to a police force – here pursuant to a standing request for information – and which is properly received by the public body which is the police service – here because the police service was expressly authorized to receive it and because it is information collected for the purposes of law enforcement – is personal information which is properly in the hands of the police service.

The court also found that since the operator of the database was not an employee of the Municipality, the Commissioner could not order the Municipality to destroy the database of pawnshop information.

In the result, the Commissioner’s orders were quashed.

To stay current with the new case law and emerging legal issues in this area, subscribe here.