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Draft Regulations on Firearms

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Notes for an appearance of the Privacy Commissioner of Canada to the Sub-Committee on Draft Regulations on Firearms

February 6, 1997
Ottawa, Ontario

Bruce Phillips
Privacy Commissioner of Canada
(Check Against Delivery)

I appreciate the chance to appear before you because, as I observed before the Senate Committee during its 1995 hearings on Bill C-68, the regulations contain the heart of the privacy issues arising out of the legislation. At that time we were told that specific questions about collection, use, retention and disclosure of the personal information would all be dealt with in the regulations. Now we have the regulations in front of us and I am not sure that we have the answers.

I can appreciate the pressures on your time so I will be brief. But first I think important to remind you of my role and the jurisdiction of the federal Privacy Act so that we do not lose sight of what it and I can and cannot do.

The Privacy Commissioner is an Officer of Parliament, not an employee of the government of the day. This means I am an independent investigator, auditor and sometime-critic of federal government administration and legislation. My powers stem from the federal Privacy Act. That Act establishes individuals' right to see information about them and to ask to have any errors corrected. The more vital component of the act is that it also regulates government collection, use and disclosure of personal information, the so-called fair information code.

Individuals can complain to me if they are dissatisfied with an organization's handling of their access request or if they believe government's collection, use or disclosure of personal information violates that fair information code.

The regulations contain several provisions that allow for the collection, use and disclosure of highly sensitive personal information which some Canadians worry may fall into the wrong hands. I would like to deal first with a general reservation . Then I want to enumerate some specific concerns.

I should underline that the Privacy Act applies only to the approximately 100 federal organizations named in the schedule. In the present context, the Firearms regulations, it applies only to the information under the control of the Registrar, an RCMP official. The act does not apply to information gathered or controlled by provincial or municipal governments. It does not apply to the private sector. And its confidentiality provisions may be overridden by any other Act of Parliament. I think it important to keep these limitations in mind as we consider some of the privacy issues inherent in the collection, storage and use of the type of information contemplated by the registry.

I am a good deal less sanguine about the legal protection for the information than the drafters of the Regulatory Impact Analysis Statement that accompanies the Firearms Records Regulations. Two confident assertions in the statements are at odds with what I know about provincial privacy laws. The first asserts that "matters of access to the information kept, and the privacy of that information will be found in the relevant provincial and federal law..." And the second assures us that the "law is comprehensive and deals adequately with all the issues..."

Let me throw a little cold water on both. First, not all jurisdictions have privacy law, Prince Edward Island and Yukon have no legal privacy protection. Second, some provincial privacy laws deal only with an individual's access to his or her records; they impose no controls on government collection, use and disclosure of the personal records. This group includes Manitoba, New Brunswick, and Newfoundland. Third, in some jurisdictions, municipal police forces which will gather and control the records, are not subject to privacy law. This group includes New Brunswick, PEI, Yukon and the Northwest Territories. I think those three points are sufficient to undermine the certainty of the statement; in six of the 12 jurisdictions, the protection for these records is incomplete.

I think it essential that we understand that privacy law is a patchwork because the proposed registry is a hybrid. I understand that personal data, including the background check, will be gathered and stored by local firearms officers, usually local police officers; by the chief firearms officer, a provincial official, and selected personal data will be entered in the federally controlled registry which is subject to the Privacy Act. This means there are effectively three storage points for each applicant's information, only one of which you can be sure is subject to privacy law.

Several of the questions I raised before the Senate Committee remain unanswered because the regulations provide insufficient detail. Perhaps the most important of these is a fundamental one: What can you do to protect Canadians' right to control some potentially very sensitive personal information when the jurisdiction is shared and there is no comprehensive privacy law?

Specifically:

  • To whom will an applicant go to seek access to the records?
  • What personal information is to be collected?
  • Who will have control of the information?
  • How will the information be used?
  • To whom will the information be disclosed?, and
  • To whom can the individual complain?

It now appears that we will have to wait for the forms and a detailed schematic of the process to answer some of these questions, a situation with which I am uncomfortable. I encourage you to seek answers to the rest.

Now I will turn to my specific concerns which focus on regulations 1 and 9 as numbered in your book. Although one of my staff has worked with the Firearms Centre for several months, we have only been consulted on, and commented on, Regulation 9. Unfortunately our comments appear to have had little impact on the regulations now before you.

Regulation 1, Firearms Licences Regulations

My first concern focusses on the privacy implications of notifying current and former spouses. Since information collected under the firearms program may be accessible to the applicant (where privacy law exists), spouses, and indeed any informants, should be told that the applicant has a legal right to see their comments, absent any applicable exemptions. The alternative, promising confidentiality, could be problematic, depending upon the law in the relevant jurisdiction. For example, federal privacy law acknowledges the principle of knowing what others say about us, being free to face one's accuser. The act gives individuals access to their personal information with some specific exceptions. One of these, for which there may be parallels in provincial law, is the ability to withhold personal information if its release could reasonably be expected to threaten another person's safety.

However, this is an exemption that requires sturdy support, not a mere allegation.

Another concern is how firearms officers will ensure that the information is accurate and not influenced either by the spouse's or informant's fear of the applicant, or a desire simply to obstruct the application or to seek revenge. The consequence of erroneous information could be substantial.

This concern is particularly acute given the very broad powers and discretion provided firearms officers to investigate and gather additional information about applicants, with no attempt to define some reasonable limitations. In some jurisdictions, applicants will have no right of access to the information and, therefore no opportunity to challenge its relevance or accuracy. In other jurisdictions there is no right to annotate disputed details. And should an applicant seek a Court review of the denial, what is to prevent public disclosure of personal details which could range from embarrassing and irrelevant, to the frankly specious and malicious?

This leads me to make two suggestions. The first is that some attempt be made to define what types of additional personal information may be relevant to granting a licence so as to prevent fishing expeditions. I don't think we should be comfortable with carte-blanche.

The second is to implement an intermediate review process for those denied a licence. An immediate recourse to the courts is burdensome for the applicant, and one would argue, for the courts. It also leads to public disclosure. Cannot some interim measure be introduced in the system which would allow applicants to challenge the denial? I am thinking, for example, of an independent third party or a panel.

Regulation 9, Firearms Records Regulations

Many of the concerns with this section stem from my earlier comments about the hybrid nature of this record collection. What privacy rules apply to the records where there is no relevant provincial or territorial statute? Where there is law, how will it be determined who has control over the records for purposes of providing access and making corrections. What constitutes a record? And where the law is not comprehensive, who, if anyone, can be held responsible for proper collection, use and disclosure of the information? Remember there is no default to the federal Privacy Act where no provincial law exists. There simply is no law.

It seems evident to me that unless the rules are spelled out in the regulations themselves, Canadians in some jurisdictions will have no legal privacy protection for some very sensitive personal records. This concern has been articulated by several groups and, in their present form, the regulations do nothing to assuage that fear.

We also have suggestions concerning some of the details. For example, the records are to be retained for 10 years following their creation. Rather than calculating the retention period from the date the file was created, we recommend using the date of the last administrative action (the practice under the federal act). This would allow applicants a reasonable period to resolve any disputes or appeals which could be underway at the 10-year point.

Other retention periods may be excessive. For example, I wonder why an applicant's test results are to be kept for life. If owners are retested at regular intervals, something that is not clear in the regulations, then I would argue that only the most recent test results are accurate and valid. Another question concerns the lifetime storage of prohibition orders and probation orders. For example, a court order prohibiting an individual from owning a weapon for five years would remain in the individual's file for life. Assuming that the information could be used to evaluate, and reject, any future applications, it would have the effect of extending the court's prohibition order. While I understand that technically speaking, retention periods are the National Archivist's turf, in both these circumstances I believe there are privacy implications.

In conclusion, ladies and gentlemen, I recommend that personal information collected, used and disclosed under authority of these regulations be subject, at a minimum, to the fair information management principles which form the basis of the Privacy Act and those comprehensive provincial privacy statutes. The regulations should clearly state this; it should of course be open to Parliament to introduce even stricter controls. Without these provisions some Canadians will have no legal rights and no recourse.

Again, I appreciate your invitation to appear today, and will be pleased to answer any questions.

1. Firearms Licences Regulations (SOR 96-458-01)

(pp. 1-12)

Synopsis

Part I of this regulation describes the conditions for issuing and revoking individuals' licences to possess firearms. It describes the information that applicants must provide.

Part II describes the conditions for issuing and revoking licences to businesses.

Privacy issues - Part I:
Included in the information an applicant is to provide is "the name, current address and telephone number of every former or current spouse or common-law partner... with whom the applicant is cohabiting or has cohabited within two years before the application is made." (section 3(d), page 2). Section 3(2) provides that an applicant who cannot supply this information may sign a statement to that effect.

Although section 4(1) states that "a chief firearms officer shall not issue a licence...unless the chief firearms officer has given notice of the application to each current and former spouse or common-law partner...", sections 4(2) and (3) establish certain conditions under which a chief firearms officer may issue a licence without advising current or former partners.

Information collected under the firearms program could be accessible under privacy and access legislation in some jurisdictions. Since information provided by a former or current partner could lead to an application being refused, firearms officers should institute procedures to ensure that any individuals providing information are aware that the applicant may request and get access to this information. If regulators intend that this information be collected under a promise of confidentiality, relevant privacy rights will have to be examined. For example, if current or past relationships are violent, could a federal organization exempt information under section 25 of the Privacy Act, safety of individuals?

If applicants are not to have access to the information, how will the firearms officers ensure that the information is accurate and is not influenced by a desire to get back at the applicant or is not motivated by a fear of the applicant?

This issue can be viewed in the larger context of section 55(1) of the Firearms Act which permits the collection of any information reasonably regarded as relevant to determining eligibility, and section 55(2) which permits the conduct of investigations into the eligibility of applicants. These sections are very broad and give the firearms officers almost unlimited discretion. The regulations might be a good vehicle for providing some limitations on the information that may be collected and the type and extent of investigations that may be conducted.

6. Authorizations to Carry Restricted Firearms and Certain Handguns Regulations (SOR 96-242-02)

(pp. 35-38)

Synopsis

Describes the conditions under which a chief firearms officer may issue an authorization to an individual to carry restricted firearms and certain handguns. This includes carrying a weapon for protection of life or for work-related duties.

Privacy issues/concerns:
Although no privacy issues or concerns are evident in the proposed regulations, there may be a question of how, and under what authority, an employer will be notified if the chief firearms officer revokes an employee's authorization to carry where this is a condition of employment. The Office suggested that this matter be covered by including a consent box in the application form for authorizations to carry.

8. Conditions of Transferring Firearms and Other Weapons Regulations (SOR 96-566-01)

(pp. 45-49)

Synopsis

Describes conditions under which firearms and other weapons can be transferred from one individual or business to another individual or business.

Privacy issues/concerns:
The Office has advised the Canadian Firearms Centre that should the chief firearms officer not approve a transfer of weapons, the reason for the refusal (e.g. that the prospective recipient has been refused a licence or acquisition certificate and the reasons for this refusal) must not be disclosed to the applicant. This could constitute an improper disclosure of personal information. The proposed regulation should describe what occurs when a transfer is not approved.

9. Firearms Records Regulations (SOR 96-584-01)

(pp. 50-52)

Synopsis

This regulation describes what information will kept by the Canadian Firearms Registry and by the Chief Firearms Officers. It also provides criteria for the destruction of records and for the amendment of records.

Privacy issues/concerns:
Privacy staff commented on an early draft of this regulation, provided by the Canadian Firearms Centre in September. These comments have not been incorporated into the draft regulation before the Sub-committee. Following are the comments that were made in September:

  1. Either the Act or the regulations should contain a statement to the effect that any personal information under the control of a federal organization falls under the federal Privacy Act and that any other information falls under the relevant provincial legislation where applicable.
  2. Although the regulation speaks of records and information (page 50), neither term is defined. We suggest that they be defined in accordance with the Privacy Act and Access to Information Act.
  3. The regulation describes records to be kept by the Canadian Firearms Registry and the Chief Firearms Officers (page 50-51). It is silent on the records to be kept by the local firearms officers who will keep all information related to investigations made on applicants.
  4. No mention is made of information collected during investigations into applicants. This could potentially be the most sensitive information collected by the program.
  5. Section 4(1) states that records shall not be destroyed until the expiration of 10 years after the date on which they were created (page 51). Standard retention and disposal schedules usually refer to a period of time following the last administrative action . Using the proposed language, information could be destroyed before the minimum 2 year period provided for in the Privacy Act regulations.
  6. Section 6(a) provides that information related to courses and tests be retained until the death of the individual (page 51). Unless the results of these courses and tests are valid for life, we can see no justification for such a lengthy retention period.
  7. Sections 6(c) and (d) provide for the retention of certain information until the death of the individual (page 51-52). Included is information relating to prohibition orders, bail conditions and probation orders. According to these sections, if a court placed a prohibition on an individual against owning any firearms for 5 years, this information would be kept on an individual's file until his death. Since the information on the file could be used to evaluate a future application, this could have the effect of extending the court's prohibition order.
  8. The wording of section 7(5) is unclear. It could be read as giving individuals an informal method of requesting changes without eliminating their rights guaranteed under federal and provincial acts. Another interpretation could be to give an individual the right to amend information about another individual. The section needs re-wording to make clear its intent.
  9. This section on amendments should provide for an individual's right to make notations to information when the information holder refuses to make the requested amendment.
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