FEDERAL REG

SOR/2016-63: Regulations Repealing the Regulations Specifying Investigative Bodies (Miscellaneous Program)

REGISTRATION OF FEDERAL REGULATION - VIA OIC DATABASE, PRIOR TO PART II OF THE GAZETTE

Registered
March 29, 2016


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The coming into force of recent amendments to the Personal Information Protection and Electronic Documents Act (PIPEDA), under the Digital Privacy Act (S.C. 2015, c. 32), removed the sections of the Act specifying exceptions for “investigative bodies.” The purpose of the Regulations Specifying Investigati... (Click for more)


Published on March 29, 2016

Bill Summary

SOR/2016-63: Regulations Repealing the Regulations Specifying Investigative Bodies (Miscellaneous Program)

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The coming into force of recent amendments to the Personal Information Protection and Electronic Documents Act (PIPEDA), under the Digital Privacy Act (S.C. 2015, c. 32), removed the sections of the Act specifying exceptions for “investigative bodies.” The purpose of the Regulations Specifying Investigative Bodies was to designate organizations as “investigative bodies” that were permitted to make use of these two exceptions to consent. With the repeal of these exceptions under PIPEDA, the Regulations Specifying Investigative Bodies are spent. Background When Parliament first enacted PIPEDA, it established a set of privacy rules that recognize individuals’ right of privacy while accommodating organizations’ need for information in reasonable and appropriate circumstances. Prior to the amendments made under the Digital Privacy Act, PIPEDA allowed private sector organizations to disclose personal information without consent to allow specific organizations, designated as “investigative bodies” in the Regulations, to investigate breaches of agreement and contraventions of the law. Investigators had to be listed as an “investigative body” in the Regulations to make use of two specific legislative provisions, which permitted the disclosure of personal information without consent [former paragraphs 7(3)(d) and 7(3)(h.2)]. The amendments made under the Digital Privacy Act followed a recommendation from the House of Commons Standing Committee on Access to Information, Privacy and Ethics (the Committee) during the first statutory review of PIPEDA. The Committee recommended that the “investigative bodies” designation process be replaced with a definition of “investigation.” The Digital Privacy Act, which came into force on June 18, 2015, repealed paragraphs 7(3)(d) and 7(3)(h.2) of PIPEDA. As a result of these amendments, organizations no longer need to be designated as an “investigative body” in the Regulations under PIPEDA to be able to collect, use or disclose personal information without consent when conducting investigations. Consequently, the Regulations Specifying Investigative Bodies made under PIPEDA are of no effect, as the corresponding exceptions to consent for “investigative bodies” in these sections were repealed. The Regulations Specifying Investigative Bodies are, therefore, spent and can be repealed. Objectives The objective of this proposal is to repeal the Regulations Specifying Investigative Bodies, which are spent. Description The Regulations Repealing the Regulations Specifying Investigative Bodies (Miscellaneous Program) will repeal the Regulations Specifying Investigative Bodies. “One-for-One” Rule The “One-for-One” Rule applies, as the Regulations Specifying Investigative Bodies are being repealed and this is considered to be an “OUT.” There is no change in administrative burden associated with this repeal because the Regulations are spent. Small business lens The small business lens does not apply, as the proposal does not impose a cost on small businesses. Consultation As the Regulations Specifying Investigative Bodies are spent as a result of the amendments made under the Digital Privacy Act, no further consultations have been undertaken. Rationale Effective June 18, 2015, the Regulations Specifying Investigative Bodies made under PIPEDA have no effect, as the corresponding exceptions to consent for investigative bodies found in paragraphs 7(3)(d) and 7(3)(h.2) of PIPEDA have been repealed. In place of these provisions, the Digital Privacy Act added the following new provision to PIPEDA: 7 (3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is . . . (d.1) made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation; These amendments implement a recommendation made by the House of Commons Standing Committee on Access to Information, Privacy and Ethics during the first statutory review of PIPEDA, completed in May 2007. In its report, the Committee recommended that PIPEDA be amended to replace the “investigative bodies” designation process with a definition of “investigation” similar to that found in the Alberta and British Columbia personal information protection acts, thereby allowing for the collection, use and disclosure of personal information without consent for these purposes. In its response to the Committee, the Government agreed that the original framework in PIPEDA was lengthy and cumbersome for applicants and inconsistent with approaches taken in the provinces, and committed to streamline PIPEDA’s provisions in respect of private sector investigative activity. As a result of these amendments, organizations no longer need to be designated an “investigative body” in the Regulations under PIPEDA to be able to collect, use or disclose personal information without consent when conducting investigations. In fact, any private organization may collect, use or disclose personal information without consent when conducting investigations or anti-fraud activities, provided that the conditions set out in paragraphs 7(3)(d.1) and 7(3)(d.2) are satisfied. With the amendment of PIPEDA by the Digital Privacy Act, organizations investigating contraventions of the law or breaches of agreement no longer have to seek regulatory approval to obtain personal information when conducting investigations. Organizations that exchange personal information for investigative purposes will remain responsible for compliance with all other requirements of PIPEDA, and will be subject to oversight by the Privacy Commissioner of Canada; individuals will also have the ability to seek redress in the Federal Court of Canada. The general requirement to obtain consent before disclosing personal information is not altered. Through the establishment of these conditions, the Government’s intention is to replace the previous regulatory vetting process for the designation of investigative bodies with exceptions to consent that will permit personal information to be used for legitimate investigations. The Government’s intention is that any disclosure that was legally permitted to or from an investigative body previously will continue to be permitted by organizations under the amended Act. Following the coming into force of these recent amendments to the PIPEDA, the Regulations Specifying Investigative Bodies are spent. The purpose of the Regulations Specifying Investigative Bodies was to designate organizations as “investigative bodies” that were permitted to make use of two exceptions to consent. However, the exceptions to consent for “investigative bodies” have been repealed. On this basis, Industry Canada has concluded that the Regulations Specifying Investigative Bodies should be repealed. Contact John Clare Director Privacy and Data Protection Policy Digital Policy Branch Spectrum, Information Technologies and Telecommunications Industry Canada 235 Queen Street, 1st Floor Ottawa, Ontario K1A 0H5 Telephone: 343-291-3796 Fax: 343-291-3802 Email: [email protected] Footnote a S.C. 2015, c. 32, s. 21 Footnote b S.C. 2000, c. 5 Footnote 1 SOR/2001-6

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