Commissioner Recommends Legislation for Police Information Checks

October 25, 2019

Information and Privacy Commissioner Jill Clayton has publicly issued a letter she wrote to Minister of Justice and Solicitor General Doug Schweitzer on October 21, 2019 calling for legislation to resolve issues identified by the Office of the Information and Privacy Commissioner (OIPC) and Alberta Court of Queen’s Bench related to police information checks (PICs) and vulnerable sector checks (VSCs).

In August, the Court upheld OIPC Order F2017-87 on judicial review.

The order asserted “…the ability to address and resolve the problems I have identified with the PIC/VSC process lies with the Legislature.” The Court echoed these comments when identifying the “legislative void” surrounding PICs and VSCs.

The order determined that Edmonton Police Service’s (EPS) use and disclosure of an individual’s personal information contravened the Freedom of Information and Protection of Privacy Act (FOIP Act).

Among the findings, the order concluded the individual could not “identify” the information he consented EPS to use to create the VSC as required by the FOIP Act (section 39(1)(b)). The order said that the EPS consent form “makes no reference to information about using investigations, allegations and non-convictions as information that would be included in a VSC.” Despite this, allegations and non-conviction information in police files were used to form both the PIC and VSC.

The Court agreed with the order’s findings related to “identifying” information to be used with consent. Justice Robert A. Graesser said:

“To be valid, a consent needs to be an informed consent. ‘Police files’ tells someone nothing, other than a person familiar with what information the police collect and how and where they store it and for how long they store it… [I]t is my view that no individual would intuitively understand that ‘police files’ would include information about unsubstantiated complaints to the police, matters that have been investigated by police for which no action was taken, or matters where charges were laid but the accused was acquitted.”

After the Court issued its decision, the OIPC said in the media that the Commissioner would write to the Government of Alberta on this topic. The OIPC was waiting to see whether EPS would appeal the Court’s decision. EPS did not appeal the Court’s decision.

The decision, including background information, on Edmonton (Police Service) v. Alberta (Information and Privacy Commissioner), 2019 ABQB 587 is available on CanLII.