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Retroactive removal of Privacy Act provisions leaves gun registry complainant with no recourse

Complaint under the Privacy Act (the Act)

  1. The complainant in this matter alleges that the Royal Canadian Mounted Police (RCMP) continues to retain and use personal information from the national long-gun registry that was required to be destroyed pursuant to the Ending the Long-Gun Registry Act.Footnote 1
  2. More specifically, the complainant's allegation is based on a radio transmission in which a High River RCMP member is believed to have said that he "located all the firearms." The complainant's position is that this statement indicates that the member knew the exact number of weapons in a particular house, which he could have only known if he had access to the long-gun registry. The complainant also made reference to an occurrence in September 2013 in which a High River RCMP member is said to have made comments about the registration status of another person's long-guns, which the complainant asserts is another example of the High River RCMP continuing to use the long-gun registry.
  3. The complainant also referred to other matters involving the Ontario Provincial Police. This Office has no jurisdiction over provincial, territorial, or municipal police services.
  4. Finally, during the course of the investigation, the complainant also provided us with a copy of an email exchange dated February 18, 2013, between a member of the Langley (British Columbia) RCMP detachment and another person, who apparently had numerous firearms seized in August 2012. The email appears to contain information that refers to the registration of non-restricted firearms. The complainant alleges that this information should have been destroyed in October 2012.

Background

  1. The RCMP is responsible for the Canadian Firearms Program (CFP), which administers the Firearms Act and its associated regulations governing the possession, licensing, transportation, use, registration, and storage of firearms in Canada. The CFP also provides operational support to law enforcement agencies with firearm-related inquiries and investigations.
  2. Given the RCMP's role in the CFP, the Commissioner of the RCMP is also the Commissioner of Firearms. A Chief Firearms Officer (CFO) has also been appointed for each province and territory. CFOs are responsible for decision-making and administrative work related to licenses, authorizations to transport or carry firearms, and confirming the purpose of the transfer of restricted and prohibited firearms by individuals and businesses.
  3. The Firearms Act and regulations were phased-in starting December 1, 1998, eventually requiring the registration of all firearms, including shotguns and rifles. It resulted in the creation of the "long-gun registry" and all Canadian gun owners were required to register their non-restricted firearms by January 1, 2003.Footnote 2, Footnote 3
  4. Bill C-19, the Ending the Long-gun Registry Act, came in force on April 5, 2012, requiring the destruction of all records related to the registration of non-restricted firearms under the control of the Commissioner of Firearms and theCFOs. Specifically, its Transitional Provisions included the following requirements:

    29(1) The Commissioner of Firearms shall ensure the destruction as soon as feasible of all records in the Canadian Firearms Registry related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under the Commissioner's control.

    (2) Each chief firearms officer shall ensure the destruction as soon as feasible of all records under their control related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under their control.

  5. Subsection 29(3) of the Ending the Long-gun Registry Act states that subsections 6(1) and (3) of the Privacy Act do not apply with respect to the destruction of the records and copies referred to in subsections 29(1) and (2) of the Ending the Long-gun Registry Act. Specifically, subsections 6(1) and (3) of the Privacy Act read as follows:
    6(1) Personal information that has been used by a government institution for an administrative purpose shall be retained by the institution for such period of time after it is so used as may be prescribed by regulation in order to ensure that the individual to whom it relates has a reasonable opportunity to obtain access to the information.
    …
    (3) A government institution shall dispose of personal information under the control of the institution in accordance with the regulations and in accordance with any directives or guidelines issued by the designated minister in relation to the disposal of that information.
  6. Our investigation therefore focused on determining whether the RCMP used personal information from the long-gun registry in contravention of section 7 of the Privacy Act rather than the issue of whether it was retained in a matter contrary to the provisions dealing with retention of personal information. Section 7 of the Act states:
    Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except (a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; or (b) for a purpose for which the information may be disclosed to the institution under subsection 8(2).
  7. Prior to initiating his complaint to this Office, the complainant made a complaint to the Civilian Review and Complaints Commission (CRCC) for the RCMP regarding the RCMP's emergency response to flooding and an evacuation order in High River, Alberta, in June 2013. The complainant alleged that the RCMP used long-gun registry data in order to locate and seize registered weapons from homes that were affected by the flooding.
  8. The CRCC issued an Interim Report in February 2015, which deals specifically with the issue of whether the High River RCMP had the authority to seize unsecured firearms from private homes during its emergency response to flooding and an evacuation order in June 2013. The Interim Report does not address the issue of whether or not the High River RCMP had access to or used a copy of the long-gun registry at that time.Footnote 4
  9. We determined from our review of the Ending the Long-gun Registry Act, that the immediate effect when it came in force on April 5, 2012, was that gun owners were no longer required to register their non-restricted firearms. The Transitional Provisions of the Ending the Long-gun Registry Act required that all records or copies of records under the control of the Commissioner of Firearms and each CFO related to the registration of non-prohibited firearms be destroyed "as soon as feasible." The RCMP committed to destroy all registry records by October 2013.
  10. We sought to determine whether the RCMP continued to use personal information held in the long-gun registry.

RCMP Representations

  1. During the course of our investigation, representatives of the RCMP's Access to Information and Privacy (ATIP) branch provided us with the following information.
  2. Prior to the legislative requirement that all long-gun registry data be destroyed, records related to the registration of non-restricted firearms existed in both electronic and hard copy (paper or other media) form. Electronic records (live data) were held in the Canadian Firearms Information System (CFIS) and hard copy records were held within the CFP and CFO offices. The CFIS is the information system that contains all electronic records related to licenses, registrations, transfers of firearms, and authorizations to transport and carry restricted firearms.
  3. The Firearms Act and its regulations establish the basic framework for the CFIS. The CFP is the business owner of the CFIS application and the RCMP's Chief Information Officer (CIO) Sector is responsible for the database architecture and the administration and maintenance of the system. The CFIS provides administrative and enforcement support to all partners involved in licensing of firearms owners/users, registration of firearms, and the issuance of authorizations related to restricted firearms. In April 2012, there were approximately 7.5 million non-restricted firearms registration records as well as non-restricted registration and transfer applications associated to those registration records in the CFIS.
  4. On April 5, 2012, the CFP stopped issuing registration certificates for non-restricted firearms, except for individuals and businesses residing in Quebec.Footnote 5 On May 20, 2012, the CFP disabled its online systems to prevent individuals and business from registering non-restricted firearms (outside of the province of Quebec). These actions were part of the CFP's steps, developed in collaboration with the CIO Sector, to implement the Transitional Provisions of the Ending the Long-gun Registry Act, which entailed the destruction of all electronic and hard copy records from the RCMP/CFP information stores, except those records related to public agencies (e.g., police services and other law enforcement agencies), which are still required to register non-restricted firearms.
  5. The CIO Sector destroyed all electronic records identified as being related to the registration of non-restricted firearms in the CFIS (with the exception of Quebec residents and public agencies) between October 26 and 31, 2012.
  6. The RCMP informed our Office that an Audit of the Destruction of Electronic Records Pertaining to the Transitional Provisions in the Ending the Long-gun Registry Act was completed in January 2013 and that the final report was published on its website in May 2013.Footnote 6 The objective of the audit was to provide reasonable assurances that the electronic records in the CFIS identified as being related to the registration of firearms that are neither prohibited firearms nor restricted firearms were destroyed as required by the Transitional Provisions of the Ending the Long-gun Registry Act.
  7. The audit report confirms that in compliance with the Transitional Provisions in the Ending the Long-gun Registry Act, all electronic records identified as being related to the registration of non-restricted firearms (except Quebec residents and public agencies) were destroyed in the CFIS in October 2012.
  8. The RCMP also informed our Office that an Audit of the Destruction of Hard Copy Records Pertaining to the Transitional Provisions in the Ending the Long-gun Registry Act was completed in April 2014 and that the final report was published on its website in July 2014.Footnote 7 Whereas the first audit report focused on the destruction of electronic database in which long-gun registry records were held and made accessible to law enforcement agencies across the country, this report focused on the destruction of hard copy records related to the registration of non-restricted firearms under the control of the Commissioner of Firearms and the CFOs.
  9. According to the second audit report, the connection between licensing and registration may result in the CFO retaining a hard copy of a record related to the registration of a non-restricted firearm, which is why the Transitional Provisions also apply to CFOs. The CFOs in all but five provinces are federally appointed and report to the CFP's Director of Firearms Regulatory Services. In the provinces of Ontario, Quebec, New Brunswick, Prince Edward Island, and Nova Scotia, the CFOs are provincially appointed and are accountable to the federal Minister of Public Safety through contribution agreements.
  10. The CFP's steps to destroy hard copy records related to the registration of non-restricted guns involved identifying the types of hard copy files that were part of the CFP's and provincial/territorial CFOs' environment and determining the likelihood of these files containing records related to the registration of non-restricted firearms. Files under the CFP's control were manually reviewed and records related to the registration of non-restricted firearms (except for Quebec and public agencies) were to be redacted or destroyed. The CFP also provided instructions and guidance to the participating CFO offices with respect to the process to review files for records related to the registration of non-restricted firearms, and assistance for the manual review of files where required.
  11. The second audit report ultimately concludes that almost all information relating to the long-gun registry was destroyed as required:
    Based on the results of our audit, we are satisfied that nearly all information related to the registration of non-restricted firearms contained in the files sampled was appropriately redacted or destroyed as planned. As expected, few instances were observed whereby some information was incorrectly redacted such that it was still legible which has since been corrected. Similarly, there were few instances in specific files where information related to the registration of non-restricted firearms had not been redacted or destroyed which has also since been corrected. It is reasonable to have found errors given the volume of records the CFP and CFO offices had to review, and the time frame in which the review was carried out.
  12. In response to the specific issue of whether the High River RCMP continued to use personal information from the long-gun registry during its emergency response in June 2013, the RCMP made reference in its representations to an article appearing in the June 24, 2014, issue of the Calgary Sun, in which the Chief Superintendent responsible for the RCMP response in High River was quoted as saying, "there was no long-gun registry."Footnote 8
  13. Both of the RCMP's audit reports on the destruction of electronic and hard copy records relating to the long-gun registry provide basic details of the steps taken by the RCMP to destroy all records pertaining to the non-restricted firearms (except from Quebec residents and public agencies) as required by legislation. However, these audit reports provide limited information in order for our Office to assess whether or not there was a contravention of the Privacy Act.
  14. That being the case, we requested that the RCMP's ATIP branch provide us with specific information responding the following questions relating to compliance with the Privacy Act:
    1. Did the High River RCMP use personal information from the long-gun registry in June 2013 as alleged by the complainant? If so, please provide the RCMP's views as to whether/how the use of that information was authorized under section 7 of the Privacy Act.
    2. Did any other RCMP detachment continue to use personal information from the long-gun registry after the electronic records were destroyed in October 2012? If so, please provide the RCMP's views as to whether/how the use of that information was authorized under section 7 of the Privacy Act.
    3. Do copies of the long-gun registry containing the personal information of registrants still exist in the possession of the RCMP or any other police service that the RCMP is aware of?
  15. In answer to the first question, the RCMP clarified that its position is that the High River RCMP did not make a copy of the long-gun registry and that prior to its destruction, High River RCMP members would have only had limited access to view certain information fields within the registry. Furthermore, the RCMP explained that there are many ways in which its members could have had knowledge about an individual's firearms without having consulted the long-gun registry, such as through previous interactions or information provided by witnesses or informants.
  16. We note that this position is supported by theCRCC Interim Report, which indicates at page 59 that information that was used to seize weapons from High River homes was recorded byRCMP members who initially entered the homes in response to the evacuation order:
    In a number of cases, when unsecured firearms were observed by RCMP members in buildings entered for the purpose of protecting life, the members were not in a position to remove the firearms. The priority was to search every house as quickly as possible for the primary purpose of saving lives. When it was not practical to remove the firearms when initially discovered, members at the detachment were provided with the address and locations of the unsecured firearms so they could seize them.
  17. The RCMP also again referenced the Audit of the Destruction of Electronic Records Pertaining to the Transitional Provisions in the Ending the Long-gun Registry Act as evidence that all electronic records were destroyed in October 2012 and could not be accessed and used in June 2013.
  18. When asked for details of the steps taken to ensure that all records under the control of the CFOs in the provinces/territories had been properly destroyed, the RCMP provided our Office with a copy of the December 31, 2013, Progress Status Report on the "Bill C-19 CFP Project Implementation Plan: Phase V - Deletion of Records," which details that 100% compliance was obtained from the CFOs (with the exception of Quebec). The RCMP also provided a copy of an email from the CFO for Alberta and the Northwest Territories to the CFP, in which he confirmed that he had destroyed all records under his control prior to December 31, 2013.
  19. The RCMP also took the position that where personal information taken from the long-gun registry was used prior to the enactment of the Ending the Long-gun Registry Act, it may be retained, for example, in case files, notebooks, or other related investigative records, and that the subsequent use of that information would not be a contravention of section 7 of the Privacy Act.
  20. In support of this position, the RCMP referred to the Info Source description of RCMP PPU 100 (Canadian Firearms Program),Footnote 9 which details that information held in this personal information bank may be used "by domestic and foreign accredited law enforcement agencies in the enforcement and administration of the law and in the detection, prevention or suppression of crime." More specifically, the RCMP believes that where personal information retrieved from the long-gun registry prior to the enactment of the Ending the Long-gun Registry Act has been retained in case files, notebooks, or other investigative records, the use of that personal information the context of an operational investigation would be consistent with the purpose for which it was compiled by the institution.
  21. In response to the second question, the RCMP took the position that no RCMP detachments kept copies of long-gun registry, since the reproduction of those records was not a simple process due to the size and structure of the registry database, making its reproduction technically not feasible.
  22. Finally, in response to the third question, the RCMP advised that its ATIP branch has retained a copy of only the aspects of the long-gun registry that were responsive to a request under the Access to Information Act made in April 2012. This copy contains all registration records (with personal information removed) for all classes of firearms -prohibited, restricted, and non-restricted - registered in Canada up to April 22, 2012. The RCMP takes the position that it is required to retain this copy under the Library and Archives of Canada Act.
  23. The RCMP also advised that no other police services made copies of the long-gun registry because, similar to RCMP detachments, they only had limited access to information contained within the registry and did not have the technological capabilities to make copies. Therefore, no police services had access to personal information from the long-gun registry after the registry was destroyed in October 2012.
  24. The RCMP concluded its response to our three questions by stating that "The main thing to remember is there was only one set of data concerning the LGR [long-gun registry]. It was destroyed between October 26 and 31, 2012 (except Quebec). The Quebec LGR was destroyed in April, 2015 following the Supreme Court decision."
  25. In support of this conclusion, theRCMP referred to the testimony of Deputy Commissioner Peter Henschel before the Senate Committee on National Finance on June 3, 2015, in which he stated:>
    Consistent with the government-approved implementation plan, the RCMP destroyed the records between October 26, 2012, and October 31, 2012, with the exception of Quebec records, which were maintained pending the outcome of a Supreme Court decision. When that decision was rendered on March 27, 2015, the RCMP deleted the remaining Quebec records from the Canadian Firearms Information System between April 10 and April 12, 2015, again, consistent with the government-approved implementation plan.Footnote 10

Analysis

  1. At issue is whether the alleged use of personal information raised in this complaint would be contrary to section 7of the Privacy Act.
  2. Our investigation focused on obtaining and clarifying the RCMP's submissions and establishing facts related to the complainant's core allegation that the RCMP continues to retain and use personal information that is contained in records that were required to be deleted under the Ending the Long-gun Registry Act. In so doing, we looked specifically into the allegation with respect to the High River incident.
  3. In our investigation, we did not uncover evidence that would confirm that either the RCMP generally, or the High River RCMP specifically, used personal information that was expressly required to be deleted in accordance with section 29 of the Ending the Long-gun Registry Act.
  4. We note that Division 18 of Bill C-59, Economic Action Plan 2015 Act, No. 1., makes amendments to the Ending the Long-gun Registry Act that includes a provision providing for the retroactive exclusion of the application of the Privacy Act to certain personal information in long-gun registry records. Specifically, subsection 230(5) of Bill C-59 states:

    The Privacy Act, including subsections 6(1) and (3) and sections 12, 29, 34, 35, 41, 42, 45 and 68, does not apply, as of October 25, 2011, with respect to personal information, as defined in section 3 of that Act, that is contained in the records and copies referred to in subsections (1) and (2) or with respect to the disposal of that information.

  5. We were not able to assess the rest of the specific examples that the complainant provided in support of the allegation that the RCMP inappropriately used information from the long-gun registry. While we recognize that further investigation of these examples could shed additional light on the matter, the passage of Bill C-59 will preclude us from doing so.

Finding

  1. Based on the information we have received to this point with respect to this complaint, we are not able to conclude that the RCMP used personal information from the long-gun registry in contravention of the Privacy Act.

Other

  1. Although not squarely at issue in this complaint, we note that the RCMP has indicated that personal information derived from the long-gun registry that was used prior to the enactment of the Ending the Long-gun Registry Act may be retained in case files, notebooks, or other related investigative records. It takes the position that this information may be subsequently used, for example, in the enforcement and administration of the law and in the detection, prevention or suppression of crime. The implication is that the RCMP does not view this as being information that was required to be deleted under the Ending the Long-gun Registry Act.
  2. This raises the question of whether the use of this information is appropriate in accordance with section 7 of the Privacy Act. Determining this would require an assessment of the circumstances surrounding the specific purposes for obtaining the personal information at issue in each case and its subsequent use. We do not have enough relevant facts in the circumstances of the current complaint to make this kind of an assessment. However, to the extent that such personal information is not required to be deleted under the Ending the Long-gun Registry Act, we would expect that this personal information would remain subject to the Privacy Act.
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