Comments on proposed changes to consent under The Personal Investigations Act

October 13, 2005

 The Manitoba Association for Rights and Liberties (MARL) appreciates the opportunity to comment on the proposed changes to The Personal Investigations Act and, in particular, the manner of obtaining consent to personal investigations. MARL is a non-profit group, founded in 1978, dedicated to advocacy and education in aspects of human rights and civil liberties affecting Manitobans.

The privacy rights of all citizens must be guarded zealously. This is truer than ever given the ease with which personal information can be gathered, stored and disseminated in today's technological age of email and internet.

In this regard, MARL believes that the proposed amendments to the Regulation are a positive step insofar as they seek to ensure that an individual is fully informed about the purpose of gathering personal information, the specific nature of the information to be gathered, the identity of the source and the purpose of making disclosure to any third party. However, MARL has concerns about the existing legislation which we believe need to be addressed:

1. Prior consent to a personal investigation should be required in all cases

Under s. 3(1) of the present Act, no person shall conduct a personal investigation (a) without the express written consent of the subject or (b) unless the subject is given notice that the investigation was conducted within 10 days of granting or denying the benefit for which the subject applied.

Paragraph 3(1)(b) of the Act completely undermines the requirement for express consent before a personal investigation is conducted. Instead, the subject need only be given notice of an investigation after the fact. This is antithetical to the protection of privacy. Further, it is contrary to the very purpose of the proposed amendments which is to ensure not only that consumers consent to an investigation but also that they "understand what they are agreeing to before they sign a personal investigation consent form"¹.

MARL strongly urges that s. 3(1)(b) of the Act be repealed. There are no circumstances where an applicant for credit, insurance, employment or tenancy should be subjected to a personal investigation without prior consent. Indeed, s. 3(2) contemplates that the request for such consent may be clearly set out in the application form itself.

2. Oral consent is not authorized by the Act

Sections 7 and 11 of the proposed Regulation contemplate that consent may be provided orally or by electronic means. MARL has no objection, in principle, to obtaining consent by electronic or oral means, provided care is taken to document the informed consent properly. We note, however, that s. 3(1)(a) of the Act currently requires "the express written consent of the subject". MARL suggests this paragraph of the Act would have to be amended to permit oral and electronic consent in order for the proposed Regulation to be valid.

3. The contents of a personal report should not be divulged to government or agencies

Section 5 of the Act provides that no personal reporter, reporting agency or user shall divulge the contents of any personal report or personal file to any person. Section 5(c) is an exception. It authorizes disclosure to any government, government agency or police officer. In our view, this provision is overly broad and unnecessarily infringes on a citizen's privacy rights.

Section 5(c) should be compared to the limited scope of the exceptions in s. 5(a) and s. 5(b) which authorize disclosure of a personal report or file to a user who requires the information for purposes of a decision in respect of the subject's application for credit, insurance, employment or tenancy or other legitimate business purpose or to the assignee of an agreement for credit, insurance or tenancy. Sections 5(a) and 5(b) are narrowly tailored to allow disclosure of personal information only for the purposes for which it was gathered in the first instance.

In contrast, the reporting agency is entitled to divulge personal information to any federal, provincial or municipal government or agency thereof or any police officer for any purpose and in any circumstances. This is an unmitigated and unwarranted infringement of personal privacy. It is also inconsistent with s. 36 of The Freedom of Information and Protection of Privacy Act which states that government or a government agency shall only collect as much personal information about an individual as is reasonably necessary to accomplish the purpose for which it is collected. Section 37 of that Act provides that personal information must be collected directly from the individual, subject to certain exceptions.

A personal reporting agency or personal reporter should not be authorized to disclose personal information to government, an agency or a police officer unless the legislation expressly sets out a specific purpose for the disclosure, under specific circumstances. Further, it should limit the collection only to personal information reasonably necessary to accomplish the purpose for which it is gathered. MARL recommends that s. 5(c) of the Act be repealed or substantially amended to limit its scope, in accordance with the above.

Once again, MARL would like to thank the Consumers' Bureau for considering our submissions with respect to The Personal Investigations Act. We hope they were helpful in ensuring that the privacy rights of all citizens are respected and adequately protected.