REVELATIONS
IN THE PRIVACY COMMISSIONER’S REPORT
By
Garry Breitkreuz, MP – September 24, 2001
On
August 29, 2001 Mr. George Radwanski, Privacy Commissioner of Canada released
his report titled: Review of the Personal Information Handling Practices of
the Canadian Firearms Program. The
report is available on the Privacy Commissioner’s website at: http://www.privcom.gc.ca/information/fr_010813_e.asp
1.
The jurisdictional issues with respect to the management and use of
sensitive personal information in terms of protection, access, correction, etc.;
2.
The patchwork of privacy legislation governing the personal information
held by federal, provincial and municipal agencies;
3.
The requirement to negotiate information sharing agreements, and not just
service agreements, with all the partners;
4.
The open and unrestricted use by Firearms Officers of law enforcement
databases;
5.
The information that populates the Firearms Interest Police (FIP)
database;
6.
The intrusive nature of the questions on the licence application forms;
7.
The broad wording of section 55 of the Firearms Act relating to the
"collection of any information reasonably regarded as relevant to
determining eligibility";
8.
The collection of personal information during secondary and tertiary
screening investigations;
9.
The collection of personal information from and about former spouses, and
the possible disclosures of their information;
10.
The appeal process and the need to institute an internal mediation
mechanism; and
11.
The
lack of policies and procedures regarding records retention and destruction.
The entire 81-page report is worth
reading, especially 34 recommendations in Appendix A – Summary of
Recommendations for Parts I and II (Page 49).
Upon reading the report I found some startling revelations about how the
Justice Minister is mishandling the firearms file.
(1)
Justice Minister has ignored Privacy Commissioner’s suggestions for years:
“We identified a number of potential privacy problems when the concept was
first proposed; we made suggestions when the legislation was before Parliament;
and we have commented on the subsequent regulations. None of our suggestions
was undertaken.” (Page 4) “The
suggestions made during the drafting of the Firearms Act and the Regulations
and during the implementation stages to make the Program more privacy sensitive
did not result in any substantial changes to the legislation or to the design of
the system.” (Page 7)
(2)
Privacy Commissioner says the gun registry ranges from a “significant
intrusion on privacy” to “highly intrusive”:
The
Canadian Firearms Centre web site states: "The licensing and registration
system is a reasonable and minor intrusion on personal privacy
when weighed against the greater benefits to Canadian society.”
The Privacy Commissioner disagreed with the Justice Department: “While
gun control is important to the security of Canadians, the Program inevitably
involves a significant intrusion on privacy.” (Page 4)
“Much of the information collected in the application process—about
mental health, job losses, bankruptcies, substance abuse, etc.—is highly
intrusive.” (Page 5).
(3)
Justice Minister has not implemented a promise made to the Parliament in 1997:
“In April 1997, following a Parliamentary Committee recommendation,
the Minister of Justice undertook to negotiate information sharing agreements
that would ensure that the federal Privacy Act would apply in cases where
no provincial and territorial privacy legislation exists. However, these
agreements are still not in place.” (Page 5 & 21)
(4)
Justice Minister has ignored two recommendations made by a Parliamentary
Committee:
“The Committee accepted only two of the Commissioner's
recommendations. First, the Sub-Committee recommended that Memoranda of
Understanding be negotiated with each province and territory outlining that the Privacy
Act applies in those cases where no provincial law exists and that rules of
application be negotiated for the other jurisdictions. The Sub-Committee also
recommended that a mediation mechanism outside of the court process be
established. Neither of these recommendations were implemented.” (Page 7)
(5)
Justice Minister can’t provide a “single point of accountability” as
promised:
“The Minister of Justice recently reiterated in the House of Commons
that ‘the Government, and in particular the Minister of Justice, will
remain fully accountable and responsible for this Program’. Although the
Canadian Firearms Centre within the federal Department of Justice is expected to
provide a single point of accountability, this is difficult since the key
federal partners and those provinces that have opted-in play an almost
autonomous role in the administration of the Firearms Act.” (Page 10)
(6)
More provinces and territories have opted-out of the administration of the
Firearms Program than have opted-in:
“There
are 6 opt-in provinces that administer the Firearms Program themselves and 7
opt-out provinces and territories where the Federal Government administers the
Program.” (Page 11)
(7)
Privacy Commissioner disagrees with Justice Minister’s claim that all private
and personal information is protected: “The
Canadian Firearms Centre Web site (http://www.cfc-ccaf.gc.ca/general_public/factsheets/privee_en.)
states that ‘Any personal information collected under the new firearms
legislation is protected by the basic principles of fair information practices
found in the federal Privacy Act and in provincial privacy legislation.’
Despite this claim, all Canadians cannot easily obtain access to
information collected as part of the Firearms Program particularly given the
multi-jurisdictional nature of the Program. Even at the federal level the
personal information holdings for this Program are held at various locations.
The dispersed holdings result in an uneven application of access rights.”
(Page 19)
(8)
Citizens may have to file up to five requests to access their personal
information:
“Also, for example, an Ontario resident who applies for a firearms
licence and registration certificate and who has been subject to the three
levels of screening (primary, secondary and tertiary) would have to submit
separate access requests to DOJ (Central Processing Site and Canadian Firearms
Centre), the RCMP (Canadian Firearms Registry and FIP), the Ontario Provincial
Police as well as to at least one local police agency. A fifth request may also
be required if the CFO or Area and Local FO in Ontario also obtained additional
information from a police agency outside the province. This is a tremendous
burden on individuals who simply want access to their records collected under
the Firearms Act.” (Page 20) “Consideration should be given to
creating a single access and correction point at the federal level. Given that
the Program is administered through a federal statute, the provinces are fully
funded by the Government of Canada, and that overall accountability for the
Program rests with DOJ, individuals should not have to go to as many as 4 to 5
different places to obtain access to their personal information.” (Page 22)
(9)
Provincial officials can access federal firearms records but Dept. of Justice
can’t access provincial firearms records:
“While
the provincial and territorial CFOs can pull records from the federal CPS site
for processing access requests received at that level of government, DOJ cannot
pull provincial and territorial records to process requests received at the
federal level.” (Page 22)
(10)
Justice Department’s description of “Firearms Program Records” is
incomplete and confusing: “This
description in this PIB [Personal Information Bank] did not begin to capture the
extent to which sensitive personal information is being collected (i.e. medical
and criminal records). Also, it did not reflect the role of the RCMP and other
partners, which could prove quite confusing not only to applicants but to the
ATIP community as well.” (Page 23)
(11)
RCMP keeps Firearms Interest Police database on 3.5 million Canadians a secret: “While
DOJ's new PIB indicates that requests related to the Firearms Interest Police
database (FIP) should be directed to the RCMP, the RCMP has not created a PIB
[Personal Information Banks] for FIP (contrary to previous undertakings) nor
is there a mention of FIP in its new CFRS [Canadian Firearms Registry System]
bank.” (Page 23)
(12)
RCMP violating Privacy Act with operation of Police Information Retrieval
System: “PIRS
records have data quality problems. The PIRS Policy Centre, within the RCMP, has
expressed a concern that decisions are being based on records that frequently
contain inaccurate accounts of investigations, including inaccurate subject
status codes. Section 6(2) of the Privacy Act requires that all
reasonable steps are taken to ensure that personal information used to make an
administrative decision about someone is as accurate, up-to-date and complete as
possible. Despite RCMP PIRS Policy,
the information found on PIRS is not being verified with the contributing agency
most of the time. PIRS contains information about "associated"
subjects that are not CFRS clients (e.g., witnesses, victims, etc.). Thus, FOs
[Firearms Officers] are routinely privy to considerable personal information
that is normally not relevant to their decision-making process.” (Page 25)
(13)
RCMP’s Firearms Interest Police database on 3.5 million Canadians is full of
garbage: “As
a result, in some cases, the database contains entries on individuals who should
never have been flagged as they do not meet the ineligibility criteria under
section 5 of the Firearms Act. A FIP hit sometimes directs the FO to
unsubstantiated and derogatory information, unproven charges or allegations,
hearsay, records that are older than 5 years, incidents and charges that have
been cleared or acquitted, duplicate entries as well as information about
witnesses, victims of crime and various other associated subjects. People are
unaware that they are being flagged in FIP as possible risks to public safety.
Also, inaccurate information on FIP or information that has already been the
subject of a previous investigation and cleared, is used over and over.” (Page
28)
(14)
RCMP’s Firearms Interest Police database exceeds authority granted in Section
5 of the Firearms Act: “At
this time, neither the RCMP nor DOJ has a framework or methodology in place to
verify how many of the FIP records fall outside of the requirements of section 5
of the Firearms Act. In addition, outside of the formal channels under
the Privacy Act, there is no way of knowing how many times a FIP file has
been subject to a correction request (formal or informal).” (Page 29)
(15)
Department of Justice is recording phone calls without knowledge or consent of
the callers: “Employees'
telephone conversations are being monitored randomly at the CPS [Central
Processing Site] in Miramichi for quality checks and performance appraisal
purposes. At this time there is no recorded message to callers informing them
that their conversations may be monitored.” (Page 30)
(16)
Spousal Notification Line could be collecting inaccurate and totally false
information: “Between
December 1, 1998 and September 2, 2000, the new spousal notification line had
received over 10,200 calls. While this may be an easy way for an applicant's
spouse (or others) to share concerns about public safety, in cases where former
spouses or partners harbour ill feelings toward the applicant, this could result
in inaccurate or totally false information being collected.” (Page 30)
(17)
Treasury Board Guidelines on “information sharing” are being violated by
Dept. of Justice, RCMP and Dept. of Human Resources Development: “These
agreements are not ‘information sharing agreements’ as defined in the
Treasury Board policies. Consequently, these agreements do not conform to the
conditions for the sharing of personal information stipulated in those
guidelines.” (Page 34)
(18)
Department of Justice firearm studies “best characterized as advocacy
research”: “In
the quotation above, DOJ claims that ‘the research reveals that life stress
is one of the most prominent factors in the prediction of possible violence.’
As discussed more fully below, the authors of these research studies do not
claim to be able to predict violent behaviour. (Page 39) “As Dandurand notes
in his literature review, a considerable portion of the research that has been
done in this area ‘is best characterized as advocacy research’—research
that was ‘conducted and often also funded for the conscious or unconscious
purpose of advancing a particular point of view or advocating a particular
social response to perceived problems.’" (Page 40)
(19)
Department of Justice studies do not identify risk factors that predict violence
or firearms misuse: “Our
overall conclusion is that the studies cited by DOJ provide limited support for
questions 19(d) to (f). Contrary to what DOJ appears to believe, the studies do
not identify risk factors that predict violence. The studies provided by DOJ relate to two issues: suicides
and domestic homicides. None of the studies provide any support for the personal
history questions on the grounds that they identify risk factors with respect to
the use of firearms in connection with workplace violence, road rage violence,
incidents in schools, or other situations where firearms may be misused.”
(Page 44)
(20)
Some Department of Justice studies arrive at the opposite conclusions:
“As
mentioned above, some of the studies arrive at conclusions contrary to those
implied in the personal history questions.
Thus,
according to these studies, previous suicide attempts, treatment for depression,
unemployment, and drug use are not risk factors with respect to firearm
violence. Treatment for depression and previous suicide attempts may be
associated with further suicide attempts, but not necessarily an attempt with a
firearm.” (Page 44)
(21)
Department of Justice asking too many questions not supported by their research:
“The
personal history questions ask far more questions, and potentially collect far
more information, than is supported by the research studies. Even acknowledging
that people applying for a POL are a subset of the entire population, the
overwhelming majority of people who respond yes to the questions about
bankruptcy, job loss, divorce, separation, treatment for alcohol abuse,
diagnosis of emotional problems and the other questions are not a threat to
themselves or others.” (Page 45)
(22)
Criminal records and history of violence best indicators of domestic violence: “This
conclusion acknowledges that, in the absence of criminal records, substance
abuse, and previous violence, domestic homicides rarely occur. This suggests
that it should be possible to identify those applicants who pose a threat with
respect to domestic violence without asking about job loss, emotional problems,
depression, and the other matters raised in the three questions. This is
particularly true since a positive answer to the questions about previous
convictions or a CPIC hit is likely to trigger additional inquiries. (Page 45)
With respect to 19(e) we agree that the research studies on the subject
demonstrate a link between previous domestic violence and the possible misuse of
firearms in domestic situations. However, incidents of domestic violence should
be picked up when the applications are screened against police databases.”
(Page 47)
(23)
Department of Justice does not even know how the “highly intrusive”
questions are being used: “Perhaps
the biggest challenge in terms of assessing the personal history questions is
that we do not know how the information collected on the application forms is
used. DOJ does not appear to have conducted any analyses about the value of the
questions in the decision-making process. In his recent letter to DOJ raising
his concerns about the intrusiveness of the questions, the Commissioner asked,
‘I would like to know what percentage of applicants have responded yes to one
of the three questions and what percentage of those individuals were denied a
licence?’ We have been told that
DOJ has not yet done this type of analysis. Looking at the information provided
on the Canadian Firearms Centre web site ("Making a Difference") about
a handful of cases where applicants were refused—‘Keeping guns out of the
wrong hands’—it would appear that these refusals hinged on previous
offences, prior convictions, and other information that could be obtained from
police databases (see Appendix
D).” (Page 46)
(24) Justice Department has not proven a “demonstrable need” for the “highly intrusive” questions contrary to Treasury Board Guidelines: “Although the Firearms Program has the authority to collect personal information for the purposes of determining eligibility, the amount of information collected is excessive. Furthermore, the three personal history questions at issue are highly intrusive and the Program has not provided a "demonstrable need" for the questions.” (Page 46)
The
following privacy issues were raised either during the course of our Review or
subsequent to it, and they remain outstanding:
Since
January 1, 2001, the Canada Customs and Revenue Agency (CCRA) is involved in the
customs declarations component of the Firearms Act. However, at the time of our
review, this part of the Act was not yet in force and, as such, our review did
not cover CCRA's personal information handling practices of this new activity
related to the movement of firearms. It is also noted that the effective date
for imports and exports of firearms will be 2003.
In
February 2001, the Privacy Commissioner began looking at the privacy
implications of the Program's outsourcing plans.
Also,
our review of outsourcing issues includes a review of the Program's contractual
arrangements with private investigators conducting tertiary screening
investigations.
Also,
we are looking at the existing contractual agreement with BDP Inc., a company in
Ottawa that is providing Data and Image Capture Services as part of an
Outsourced Processing Centre.
Our
Office is also reviewing the Program's information sharing arrangement with the
United States Bureau of Alcohol, Tobacco and Firearms (BATF), as well as any
other existing international agreement relating to the Program.