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The Power of “Why” in the Exercise of Discretion to Disclose

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Asking “why” is a powerful deterrent to over collection and, as a recent Alberta case demonstrates, can be a powerful check on “over disclosure”.

In Order F2013-12, the issue for the Office of the Information and Privacy Commissioner of Alberta was whether the entirety of an accident report created from information collected from the driver of one vehicle should be automatically and routinely disclosed by the police to the other driver involved in the accident.

The form established by the Registrar for the accident report collects the driver’s name, address, date of birth, gender, home phone number, work phone number, and operator’s license.

The case for disclosure looked strong:

  • The Alberta Traffic Safety Act requires drivers who are involved in an accident to complete an accident report with the policy.
  • The form of accident report is prescribed by the Registrar of Motor Vehicles.
  • The police are required to collect the accident report.
  • If requested, a driver is required to disclose to the police or anyone sustaining loss or injury, the driver’s name, address, operator’s licence, name and address of the registered owner of the vehicle, licence plate of the vehicle, and the financial responsibility card issued in respect of the vehicle.
  • The police are permitted to provide the Registrar with a copy of the accident report.
  • The police are permitted to release information in the accident report to a person if the person may be liable to pay damages.

The Freedom of Information and Protection of Privacy Act permitted disclosure of personal information for a purpose in accordance with a law that authorizes or requires disclosure, but only to the extent necessary to carry out the purpose in a reasonable manner.

The Adjudicator agreed that in theory disclosure of an accident report was authorized by law. However, the disclosure provision was permissive – that is, the police had discretion to exercise.

So, why did the police exercise the discretion to disclose the entirety of the report? The Adjudicator didn’t receive a good answer. It seems it was the practice of the police to do so. But the drivers in this case had not asked for each other’s information. Even had they done so, the Traffic Safety Act did not require disclosure of the drivers’ birth dates or telephone numbers. Moreover, no party requested a copy of the accident report.

The disclosure was gratuitous in order that the drivers need not ask for copies of the report and in order to ensure that the drivers meet their obligations to one another. In the result, the Adjudicator ordered the police to cease disclosing more information than was necessary for that more limited purpose – such as name, address and operator’s licence.