Privacy Act (R.S.C., 1985, c. P-21)

Marginal note:Findings and recommendations of Privacy Commissioner

• 35 (1) If, on investigating a complaint under this Act in respect of personal information, the Privacy Commissioner finds that the complaint is well-founded, the Commissioner shall provide the head of the government institution that has control of the personal information with a report containing

  • (a) the findings of the investigation and any recommendations that the Commissioner considers appropriate; and

  • (b) where appropriate, a request that, within a time specified therein, notice be given to the Commissioner of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.

• Marginal note:Report to complainant

  (2) The Privacy Commissioner shall, after investigating a complaint under this Act, report to the complainant the results of the investigation, but where a notice has been requested under paragraph (1)(b) no report shall be made under this subsection until the expiration of the time within which the notice is to be given to the Commissioner.

• Marginal note:Matter to be included in report to complainant

  (3) Where a notice has been requested under paragraph (1)(b) but no such notice is received by the Commissioner within the time specified therefor or the action described in the notice is, in the opinion of the Commissioner, inadequate or inappropriate or will not be taken in a reasonable time, the Commissioner shall so advise the complainant in his report under subsection (2) and may include in the report such comments on the matter as he thinks fit.

• Marginal note:Access to be given

  (4) Where, pursuant to a request under paragraph (1)(b), the head of a government institution gives notice to the Privacy Commissioner that access to personal information will be given to a complainant, the head of the institution shall give the complainant access to the information forthwith on giving the notice.

• Marginal note:Right of review

  (5) Where, following the investigation of a complaint relating to a refusal to give access to personal information under this Act, access is not given to the complainant, the Privacy Commissioner shall inform the complainant that the complainant has the right to apply to the Court for a review of the matter investigated.

Review of Exempt Banks

Marginal note:Investigation of exempt banks

• 36 (1) The Privacy Commissioner may, from time to time at the discretion of the Commissioner, carry out investigations of the files contained in personal information banks designated as exempt banks under section 18.

• Marginal note:Sections 31 to 34 apply

  (2) Sections 31 to 34 apply, where appropriate and with such modifications as the circumstances require, in respect of investigations carried out under subsection (1).

• Marginal note:Report of findings and recommendations

  (3) If, following an investigation under subsection (1), the Privacy Commissioner considers that any file contained in a personal information bank should not be contained therein within the terms of the order designating the bank as an exempt bank, the Commissioner shall provide the head of the government institution that has control of the bank with a report containing

  • (a) the findings of the Commissioner and any recommendations that the Commissioner considers appropriate; and

  • (b) where appropriate, a request that, within a time specified therein, notice be given to the Commissioner of any action taken or proposed to be taken to implement the recommendations or reasons why no such action has been or is proposed to be taken.

• Marginal note:Reports to be included in annual or special reports to Parliament

  (4) Any report made by the Privacy Commissioner under subsection (3), together with any notice given to the Commissioner in response thereto, may be included in a report made pursuant to section 38 or 39.

• Marginal note:Review of exempt banks by Court

  (5) Where the Privacy Commissioner requests a notice under paragraph (3)(b) in respect of any file contained in a personal information bank designated under section 18 as an exempt bank and no notice is received within the time specified therefor or the action described in the notice is, in the opinion of the Commissioner, inadequate or inappropriate or will not be taken in a reasonable time, the Privacy Commissioner may make an application to the Court under section 43.

Review of Compliance with Sections 4 to 8

Marginal note:Investigation in respect of sections 4 to 8

• 37 (1) The Privacy Commissioner may, from time to time at the discretion of the Commissioner, carry out investigations in respect of personal information under the control of government institutions to ensure compliance with sections 4 to 8.

• Marginal note:Sections 31 to 34 apply

  (2) Sections 31 to 34 apply, where appropriate and with such modifications as the circumstances require, in respect of investigations carried out under subsection (1).

• Marginal note:Report of findings and recommendations

  (3) If, following an investigation under subsection (1), the Privacy Commissioner considers that a government institution has not complied with sections 4 to 8, the Commissioner shall provide the head of the institution with a report containing the findings of the investigation and any recommendations that the Commissioner considers appropriate.

• Marginal note:Reports to be included in annual or special reports

  (4) Any report made by the Privacy Commissioner under subsection (3) may be included in a report made pursuant to section 38 or 39.

• Marginal note:Coordination with Review Agency

  (5) The Privacy Commissioner may coordinate his or her activities under subsection (1) with those of the National Security and Intelligence Review Agency under any of paragraphs 8(1)(a) to (c) of the National Security and Intelligence Review Agency Act to avoid any unnecessary duplication of work.

Reports to Parliament

Marginal note:Annual report

38 The Privacy Commissioner shall, within three months after the termination of each financial year, submit an annual report to Parliament on the activities of the office during that financial year.

Marginal note:Special reports

• 39 (1) The Privacy Commissioner may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers, duties and functions of the Commissioner where, in the opinion of the Commissioner, the matter is of such urgency or importance that a report thereon should not be deferred until the time provided for transmission of the next annual report of the Commissioner under section 38.

• Marginal note:Where investigation made

  (2) Any report made pursuant to subsection (1) that relates to an investigation under this Act shall be made only after the procedures set out in section 35, 36 or 37 have been followed in respect of the investigation.

Marginal note:Transmission of reports

• 40 (1) Every report to Parliament made by the Privacy Commissioner under section 38 or 39 shall be made by being transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling in those Houses.

• Marginal note:Reference to Parliamentary committee

  (2) Every report referred to in subsection (1) shall, after it is transmitted for tabling pursuant to that subsection, be referred to the committee designated or established by Parliament for the purpose of subsection 75(1).

Review by the Federal Court

Marginal note:Review by Federal Court where access refused

41 Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.

Marginal note:Privacy Commissioner may apply or appear

42 The Privacy Commissioner may

• (a) apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose personal information requested under subsection 12(1) in respect of which an investigation has been carried out by the Privacy Commissioner, if the Commissioner has the consent of the individual who requested access to the information;

• (b) appear before the Court on behalf of any individual who has applied for a review under section 41; or

• (c) with leave of the Court, appear as a party to any review applied for under section 41.

Marginal note:Application respecting files in exempt banks

43 In the circumstances described in subsection 36(5), the Privacy Commissioner may apply to the Court for a review of any file contained in a personal information bank designated as an exempt bank under section 18.

Marginal note:Hearing in summary way

44 An application made under section 41, 42 or 43 shall be heard and determined in a summary way in accordance with any special rules made in respect of such applications pursuant to section 46 of the Federal Courts Act.

Marginal note:Access to information

45 Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, the Court may, in the course of any proceedings before it arising from an application under section 41, 42 or 43, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen’s Privy Council for Canada to which subsection 70(1) applies, and no information that the Court may examine under this section may be withheld from the Court on any grounds.

Marginal note:Court to take precautions against disclosing

• 46 (1) In any proceedings before the Court arising from an application under section 41, 42 or 43, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of

  • (a) any information or other material that the head of a government institution would be authorized to refuse to disclose if it were requested under subsection 12(1) or contained in a record requested under the Access to Information Act; or

  • (b) any information as to whether personal information exists where the head of a government institution, in refusing to disclose the personal information under this Act, does not indicate whether it exists.

• Marginal note:Disclosure of offence authorized

  (2) The Court may disclose to the appropriate authority information relating to the commission of an offence against a law of Canada or a province by a director, an officer or an employee of a government institution if, in the Court’s opinion, there is evidence of such an offence.

Marginal note:Burden of proof

47 In any proceedings before the Court arising from an application under section 41, 42 or 43, the burden of establishing that the head of a government institution is authorized to refuse to disclose personal information requested under subsection 12(1) or that a file should be included in a personal information bank designated as an exempt bank under section 18 shall be on the government institution concerned.

Marginal note:Order of Court where no authorization to refuse disclosure found

48 Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of a provision of this Act not referred to in section 49, the Court shall, if it determines that the head of the institution is not authorized under this Act to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.

Marginal note:Order of Court where reasonable grounds of injury not found

49 Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of section 20 or 21 or paragraph 22(1)(b) or (c) or 24(a), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.

Marginal note:Order to remove file from exempt bank

50 Where the Privacy Commissioner makes an application to the Court under section 43 for a review of a file contained in a personal information bank designated as an exempt bank under section 18, the Court shall, if it determines

• (a) in the case of a file contained in the bank on the basis of personal information described in paragraph 22(1)(a) or subsection 22(2), that the file should not be included therein, or

• (b) in the case of a file contained in the bank on the basis of personal information described in section 21 or paragraph 22(1)(b) or (c), that reasonable grounds do not exist on which to include the file in the bank,

order the head of the government institution that has control of the bank to remove the file from the bank or make such other order as the Court deems appropriate.

Marginal note:Actions relating to international affairs and defence

• 51 (1) Any application under section 41 or 42 relating to personal information that the head of a government institution has refused to disclose by reason of paragraph 19(1)(a) or (b) or section 21, and any application under section 43 in respect of a file contained in a personal information bank designated as an exempt bank under section 18 to contain files all of which consist predominantly of personal information described in section 21, shall be heard and determined by the Chief Justice of the Federal Court or by any other judge of the Court that the Chief Justice may designate to hear the applications.

• Marginal note:Special rules for hearings

  (2) An application referred to in subsection (1) or an appeal brought in respect of such application shall

  • (a) be heard in camera; and

  • (b) on the request of the head of the government institution concerned, be heard and determined in the National Capital Region described in the schedule to the National Capital Act.

• Marginal note:Ex parte representations

  (3) During the hearing of an application referred to in subsection (1) or an appeal brought in respect of such application, the head of the government institution concerned shall, on the request of the head of the institution, be given the opportunity to make representations ex parte.