Children & privacy.

At a time when there is much public focus on privacy issues, it is worthwhile to look at the legal treatment of privacy as it concerns children. What exactly does privacy mean? Privacy is often given a very expansive meaning along the lines of the right to be left alone; this article, however, focuses on the collection, use, and sharing of personal information of and about a child.

An appropriate starting point may be the United Nations Convention on the Rights of the Child. Canada ratified this convention in 1991. The province of Alberta endorsed the Convention in 1999. The Convention prohibits the "arbitrary or unlawful interference" with a child's privacy. For an excellent assessment of Alberta statutes concerning children and their compliance with the Convention on the Rights of the Child readers are referred to United Nations Convention on the Rights of the Child: How Does Alberta's Legislation Measure Up? by Anna S. Pellat and the Alberta Civil Liberties Research Centre, and to her article in this issue of LawNow.

Although a House of Commons committee recommended in 1997 that there should be a Canadian Charter of Privacy Rights, the existing legal protection for Canadian adults and children in terms of privacy is a patchwork of many different federal and provincial laws that provide uneven and spotty protection. As a consequence, privacy protection for adults is limited and in many areas unclear. This ambiguity is compounded when one deals with children and privacy. For example, consent is viewed as a primary tool to protect privacy from surveillance technology. But can a child ever give a meaningful consent? Younger children, those under 16 years, have customarily been viewed by the courts as incapable of giving such a meaningful consent.

On January 1, 2001, the Personal Information Protection and Electronic Documents Act (C-6) came into force. Effective January 1, 2004, that law will require all businesses to take positive steps to respect and protect the privacy of all citizens, adult and children. Until that date, children have no comprehensive privacy protection in terms of personal information about them that is collected, shared, and used by businesses in the non-government sector. More information on C-6 is available through the office of the federal Privacy Commissioner at www.privcom.ca. For some ideas on how to protect your privacy when it comes to dealing with businesses in the private sector, I encourage you to check out a brochure designed for youth by Alberta's Information and Privacy Commissioner entitled Who Can You Count On to Protect Your Privacy? at http://ipc.developersedge.com/brochures.

Practically speaking, children have no right of privacy from their parent or guardian. In other words, a parent or guardian has the legal right to obtain any information they wish about the health or education of their child. Anyone else is limited as to what information they can lawfully obtain about a child. For the most part, it is the parent or guardian or a specific statutory provision that determines what information about a child can be accessed by anyone else. This is true whether the third person seeking information is a grandparent, a neighbour, the media, or a business. These limitations are not codified in a single law. They are found in a number of different statutes as well as past judicial decisions.

The Alberta Freedom of Information and Protection of Privacy Act (FOIP Act), Part 2 sets out the rules for the collection, use, and sharing of personal information about children as far as government departments, agencies, schools, regional health authorities, and municipal governments are concerned. Personal information is defined very broadly to include fingerprints, blood type, educational history, anyone else's opinions about the child, and the child's own views or opinion. To wilfully collect, use, or disclose personal information in violation of Part 2 is an offence punishable by a fine of up to $10,000. The privacy protection set out in the Act does not apply to any court proceedings or information shared in a court proceeding either in affidavit form or through live testimony. So, personal information concerning children that is shared under statutes such as the Protection of Children Involved in Prostitution Act, the Parentage and Maintenance Act, the Family Relief Act, the Minors' Property Act, the Domestic Relations Act or the federal Divorce Act is not subject to the privacy rules in the FOIP Act.

The Child Welfare Act bans the publication of any information which would identify the approximate 20,000 children who in any given year may be subject to this Act or the guardian of those children. The Minister responsible for the Act and for children in care of the province must preserve secrecy with respect to the name and any other identifying information of a person that comes to his attention under this Act and must not communicate that information to any other person except as otherwise provided in this section. Adoption records of the court and the Minister must be sealed.

Information about school students is governed by the School Act and regulations under that Act as well as the FOIP Act. Private schools are exempt from the FOIP Act. Much useful information is available at www.gov.ab.ca/foip/, particularly the Frequently Asked Questions about public libraries and school jurisdictions. The School Act requires each school board to maintain a student record for each student enrolled in its schools. The only persons who can review that record are the student, the student's parent or a non-custodial parent who has access to the student under the terms of a court order or a separation agreement between parents. School information about a student can be disclosed to an agent of the Director of Child Welfare under the Child Welfare Act. When a child welfare worker undertakes an investigation about a child who is believed to be in need of protection that worker can access personal information from teachers and school administrators.

There are no constraints on schools use of video surveillance. Students can freely be photographed without their consent at school events to which parents and other members of the public have been invited. Media can interview and photograph the Grade 4 student who has written a prize winning essay only with parental consent. Parental consent is required before media can get access to interview or photograph students at non-public events. Schools are free to give student names to bus drivers who convey students to and from school. A school is also free to publish or share with the media the identities of students who have received an honour or award from the school. To the extent that the school has health records relating to a student, the governing rules are found in the FOIP Act not in the Health Information Act. The latter statute does not apply to schools.

Can information about members be used by libraries to conduct user surveys? Only if when a child signs up for a membership, the child or guardian signs a consent that allows the library to use that information for other purposes than taking out books. If there is no such consent, that kind of information sharing would offend the FOIP Act. There is nothing that prevents a parent from applying under FOIP to review the titles of books their children have borrowed. Although this is not spelled out in the FOIP Act, it is highly likely that the parent will be viewed as acting in the place of the child. The library cannot post a list of students who have overdue books.

The common law is not particularly helpful in determining precisely what rights children have to privacy insofar as their health information is concerned. Children have been regarded competent to consent to use of their personal health information if the child is capable of appreciating fully the nature and consequences of the release of that information. The release of information must, however, be for the benefit of the child. The mature minor tends to be between the ages of 16 and 18. This is the same test that the courts have applied in determining whether a child is capable of giving consent to surgery or treatment that might otherwise be an assault. Applying this test would mean that even a mature 16 or 17 year old child would not be able to consent to the use of her personal health information for purposes such as health management, professional development, or statistical analysis. At the time of writing this article, health information is governed by some 20 different health-related statutes. The Alberta Health Information Act (Bill 40), however, will likely be proclaimed into law early in the spring of 2001. Bill 40 will govern most personal health information available in the offices of physicians, and the public health care system. The Act speaks of an individual without any age qualification. There is no special provision for children other than the power for a guardian to make decisions about the collection and use of a child's information. This will occur when a child is under 18 and unable to understand the nature of a statutory right or power and the consequences of exercising that right or power. Bill 40 provides for extensive sharing of personal health information of children. A child's personal health information can be used for 11 different reasons, only one of which is providing health services to that child. A child's information can be disclosed without consent for 27 different reasons. Consent of the patient has to a large extent been replaced by new obligations imposed on custodians of health information.

There is a paternalistic provision that custodians must take steps to protect patient information and only disclose personal information when non-identifying information will not serve the particular purpose of disclosure. One very positive feature is the prohibition against the collection of health information using a recording device or camera or any other hidden device unless written consent is first obtained.

Public health officials are entitled to obtain certain personal information about students when they formally request it under the Public Health Act. This includes the contact information about the student's parent or guardian. School boards cannot obtain contact information from a regional health authority on students who might be eligible for enrollment in the following school year.

The Vital Statistics Act grants applicants access to basic information concerning a child's birth if the Director of Vital Statistics "is satisfied that it is not to be used for any unlawful or improper purpose" (section 32). The Act does not grant children the right to control access to their information nor to know who has access to this information and for what purpose.

An important federal statute deserves mention when it comes to children and privacy. The Young Offenders Act deals with children between the ages of 12 and 18. There is an outright ban on disclosure of the identities of children charged under the Act subject to very limited exceptions. There is also an extensive section which deals with exclusion of members of the public from the court room dealing with young offender matters. Finally there are stringent limitations on the disclosure of young offender records and an obligation to destroy those records.