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COVID-19 health privacy exemptions continue to be scrutinized

“We want to make sure those public bodies relying on the order are doing so because it’s related to COVID"
B.C. Information and Privacy Commissioner Michael McEvoy says his office continues to watch how information sharing exemptions might impact people’s privacy. Photo by OIPC

B.C.’s information and privacy commissioner says his office continues to watch how a relaxing of privacy laws on sharing of COVID-19 health data is being handled by the provincial government.

The relaxing of laws began in March and has been extended several times, now until May 31, 2021.

The initial order allowed, under B.C.’s Freedom of Information and Protection of Privacy Act, that B.C.’s ministries of Health, Mental Health and Addictions or the Provincial Health Services Authority may disclose information for the purposes of:

• communicating with individuals respecting COVID-19;
• supporting a public health response to the COVID-19 pandemic; or
• coordinating care during the COVID-19 pandemic.

The order further said public bodies may disclose such information inside or outside of Canada on condition that disclosure:

• is used to support and maintain the operation of programs or activities of public bodies;
• supports public health requirements related to minimizing COVID-19 transmission such as social distancing, working from home, etc.; and
• is limited to the minimum amount reasonably necessary for the performance of duties by an employee, officer or minister of the public body.
Commissioner Michael McEvoy said the use of the order has been monitored “very carefully.”

“We want to make sure those public bodies relying on the order are doing so because it’s related to COVID,” he said.

He said the issue has gained in importance because of an increased reliance on virtual care during the pandemic.

Such systems have also been used throughout the education system and are also being monitored, he said.

An upside of the situation, McEvoy explained, is that many technological platforms where information has been shared are now able to be stored in Canada, which means Canadians’ information doesn’t have to cross international boundaries. For example, data stored in the United States could be subject to scrutiny by that government under legislation such as the Patriot Act.

“However, with an increase in domestic data storage for platforms, public bodies are moving to shift to them,” McEvoy said.

He said it’s a shift that doesn’t happen overnight and the orders may facilitate the time for that to continue.

“I think it’s responsible,” McEvoy said. “It just gives time for adjustments to be made.”

Federal Privacy Commissioner Daniel Therrien said in a March 20 statement, “During a public health crisis, privacy laws still apply, but they are not a barrier to appropriate information sharing.”

A guidance from Therrien’s office said under federal and provincial laws, governments are authorized to declare formal public emergencies.

“Where that is done, the powers to collect, use and disclose personal information may be further extended and can be very broad.”

The renewed order, signed by the new Minister of Citizens’ Services Lisa Beare, does allow the minister to rescind or extend it in full or in part before May 31.

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