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British Columbia Legislation
In British Columbia, privacy legislation governing the public sector has been in place since 1996, with the introduction of the Freedom of Information & Protection of Privacy act. This legislation imposed strict controls on the collection, use and dissemination of information by public bodies, which by definition includes government agencies, educational and health care institutions and professional associations. In April of 2002, the B.C. Ministry of Management Services posted a discussion paper on its website outlining the philosophical basis of a proposed new private sector privacy act.
For the past six months, the Ministry's Privacy Directorate has been conducting consultations with affected interest groups within the private sector, including the charitable sector. In the summer of 2002, a group of representatives from AFP, AHP, CAGP, and APRA met twice with government representatives to discuss issues of importance to the charitable sector. Following these meetings, the group continued to monitor the situation, and developed a communications and advocacy strategy to ensure the charitable sector's interests were represented.
The group met again with Ministry representatives in December 2002 and January, 2003. During the most recent meeting, draft language in the key areas of consent, grandfathering and publicly available information was shared.
Nature of the Legislation
The intention of the Ministry team leading the process is to strike a balance between the overly general provisions of PIPED and the overly prescriptive nature of the proposed Ontario legislation. They are also trying to keep the Act as simple as possible to interpret and apply, and are trying to keep the final document to a manageable length. Ministry representatives have been assured by the Privacy Commissioner of Canada that the draft legislation will qualify as being "substantially similar" to PIPED.
The Ministry of Management Services team is collaborating very closely with their counterparts in Alberta as they develop their own provincial PSP legislation, and it is our understanding that the final legislation in BC and Alberta will be virtually identical. Since it appears possible that the proposed Ontario legislation will not become law prior to the federal deadline, it is anticipated that the BC/Alberta legislation will now serve as a template for other provinces.
The key characteristics of the draft legislation are as follows:
1. The Ministry has chosen to embrace "personal information" as the conceptual basis for the legislation rather than privacy, since the former is easier to define and regulate.
2. The legislation will apply only to recorded personal information (which presumably will not affect the volunteer prospect review process)
3. Application and Scope: the BC PSP act will not make any distinctions between for-profit and not-for-profit organizations.
4. Consent: will be driven by the "reasonable person" test, which is well established in common law. The drafters are trying to strip away qualifiers like informed, express and implied consent, focusing instead on what the hypothetical "reasonable person" would consider to be an acceptable use of his or her personal information. Combined with the reasonable person test will be a requirement to articulate the purpose for which information is collected, and to provide very clear opt-out opportunities. The essence of this approach is to provide the individual with a sense of control in the relationship.
5. Grandfathering: existing personal information will not be subject to the legislation, and consent once given will not be required again for future transactions. The only proviso will be that every communication piece must include a purpose statement and opt-out opportunity.
6. Publicly available information: the legislation will permit the collection, use and dissemination of publicly available personal information, which is to be defined in a set of regulations. The drafters intend to use the definitions in the regulations accompanying Bill C-6 as a starting point, which is of some concern because of their restrictive nature. This will be an area where further clarification and discussion will need to take place.
Apart from these concerns, the BC not for profit task force is pleased with the direction the Ministry has taken with this new legislation. For the most part, the drafters appear to have adopted a pragmatic rather than a draconian approach, and our sense is that most fundraising organizations employing sound business practices, in accordance with established professional standards, will be in compliance with the legislation.
Our contacts in the Ministry have indicated that they anticipate introducing the legislation in the late spring sitting of the House. We will continue to work with the Ministry as the legislation takes shape, and have been assured of the following:
1. We can provide any feedback we wish in writing;
2. We will be advised of any significant changes that may come up after review with other stakeholders;
3. We will have an opportunity to review the final draft when available.