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December 2016

Back-up Servers and Privacy Legislation

When information is "reasonably retrievable" under the Privacy Act

Professor Anton Oleynik of Memorial University in Newfoundland and Labrador was denied a research grant by the Social Sciences and Humanities Research Council of Canada (commonly known as "SSHRC") in 2007.1 That denial set off a firestorm of legal proceedings throughout the country that has now spanned nearly a decade.  

The decision of Justice Boswell in Oleynik v. The Office of the Privacy Commissioner of Canada, released on October 19, 2016, is the latest chapter in this chronicle. It concerns the most recent of several complaints regarding the Office of the Privacy Commissioner of Canada (the "OPC") under the federal Privacy Act.2 In this case, Professor Oleynik's complaint was that the OPC failed to respond to its request for the following:

"All the documents in the custody and control of the OPC that contain my name {(OLEINIK or OLEYNYK)}. Their [sic] list includes, but not limited to, e-mail exchanges and attached documents. Hence, I request that a search on the OPC back up email server is conducted."

Indeed, the OPC had refused to search their backup tapes and servers on the basis that the information was not only non-specific, it was expensive and time-consuming to access their back-up records.3 In Privacy Act terms, the information sought was not "reasonably retrievable" pursuant to that legislation.4 Professor Oleynik disagreed, and pursued judicial review of the OPC's decision in the Federal Court. That judicial review was heard by Justice Boswell.

Justice Boswell's decision provides us with guidance as to how privacy legislation will apply to organizations which maintain and catalogue incredible amounts of data. Particularly for large scale businesses, this decision has interesting ramifications.

I say "businesses" because while this decision dealt specifically with the Privacy Act (which only applies to the federal government), other pieces of privacy legislation such as PIPEDA also contain limits on broad requests.5

Justice Boswell acknowledged that the scope of the request was broad; the request was based on Professor Oleynik's name alone, which "generated 17,842 pages of information that were responsive to the request". Not only was the request broad, but it was also non-specific.

...the lack of specifying details turned the search of the back-up hardware into a fishing expedition...

It appears that Justice Boswell then entered into a balancing of sorts, with the request placed on one hand and the efforts required to retrieve the information placed on the other. In this case, the lack of specifying details turned the search of the back-up hardware into a fishing expedition, with the effort far outweighing the possible benefit of the search. The presence of Professor Oleynik's name, in short, was not sufficient.

Justice Boswell poetically drew the following analogy for our consideration, highlighting the need for a requesting party to be specific in their request for disclosure:

[34]           The burden was upon the Applicant to provide sufficient information about his requested information in order to make it "reasonably retrievable" by the OPC. The Applicant did not specify the dates or recipients of the e-mails he sought in his request to the OPC to search its back-up e-mail server. The Applicant may have supplied a sufficiently specific location for the requested information, but that does not necessarily or automatically make any such information "reasonably retrievable." A personal diary which slips from its owner's hands into the ocean from the deck of a cruise ship en route across the Atlantic Ocean would not be reasonably retrievable despite the fact that all who witnessed the mishap know the location or place where the diary was lost.

It is always prudent for any entity which collects identifiable information about individuals to be prepared to disclose that information. However, the right of access is not unlimited. We take comfort in Justice Boswell's decision which confirms that reasonable limits will be placed on an individual's right of access where the cost and expense is grossly disproportionate to the potential of information.

1 The SSHRC is a federal department created by Parliament in 1977.
2 R.S.C. 1985, c. P-21. Note that the Statement of Claim filed by Professor Oleynik on June 6, 2014 in the Federal Court against the Attorney General of Canada was struck out on August 13, 2014 by Justice Heneghan, 2014 FC 896.
3 The back-up records were preserved for disaster recovery purposes.
4 S. 12(1)(b) of the Privacy Act.

5 Under PIPEDA, Justice Zinn of the Federal Court in Johnson v. Bell Canada, 2008 FC 1086, stated that only information which an organization can "reasonably expect to be responsive to the request" is producible under that legislation. This is essentially the "reasonably retrievable" standard.


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