Private school not covered by PIPEDA

PIPEDA Case Summary #2006-345

(Paragraph 4(1)(a), Section 2)

An individual applied for scholarships from a private school to enable his children to attend the institution.  He complained to our Office that the scholarship committee had divulged some of his financial information to third parties without his consent.

The Assistant Privacy Commissioner determined that our Office had no jurisdiction over this matter as the school was not engaged in any commercial activities.

The following is a detailed overview of the investigation.

Summary of Investigation

The complainant was involved in a dispute with the scholarship committee of a private school.  He had applied for scholarships for his children, and believed that some individuals who were not on the committee had been informed of his financial situation.  The school denied this.  Moreover, it maintained that, as it was a private educational institution designated as a charitable organization, it did not fall under the purview of the Personal Information Protection and Electronic Documents Act.

According to the school, its core activities are concerned with the advancement of education.  It is a non-share corporation, recognized as non-profit, and designated as a charitable organization by the Canada Revenue Agency.  Furthermore, the scholarship fund is not a fee-for-service activity.

Findings

Issued July 5, 2006

Application: Paragraph 4(1)(a) of the Act states that the Act applies to every organization in respect of personal information that it collects, uses or discloses in the course of commercial activities.  Section 2 of the Act defines a “commercial activity” as any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.

The Assistant Privacy Commissioner considered the following two-point test to determine whether the organization was covered by the Act:

1. What is the institution’s core activity?  Is the institution providing educational services as its core activity?  If so, the activities should presumptively be considered not to have a “commercial character.”

   It was clear that the institution was a private school, with education as its main activity.  Its educational services, including those of its scholarship fund, were of a non-commercial nature. 

2. The presumption that the activities of an educational institution do not have a commercial character will be rebutted if the institution has, as one of its objectives, the goal of earning a profit for the owners of the institution.

   There was no indication that the school’s goal was to earn a profit for its owners.  All the evidence supported the institution’s claim to be a charitable, not-for-profit organization.  Therefore the presumption that the school was engaged in non- commercial activities was confirmed.

On the basis of this test, the Assistant Privacy Commissioner decided that the school’s activities did not meet the definition of “commercial” as set out in section 2 of the Act.  As a result, she determined that the school did not fall under the rubric of the Act.

The Assistant Privacy Commissioner therefore concluded that she did not have jurisdiction to issue findings in this case.