The interplay between obligations pursuant to privacy legislation and the requirements of the civil litigation process must be managed carefully. Counsel should not assume that disclosure requested pursuant to a right to information under privacy legislation, and disclosed in due course through the discovery process will be sufficiently provided.

The Office of the Information and Privacy Commissioner of Alberta recently rendered an Order  that should serve as a cautionary tale. The Applicant was a former employee of the Respondent. He requested his personnel file from his former employer. He was also involved in litigation with his former employer. Both parties in the litigation were represented by counsel. However, the Applicant made the request for the personnel file directly to the former employer and not through counsel.

Counsel for the former employer wrote to counsel for the Applicant stating that as there was ongoing litigation, the personnel file would be provided through the proper discovery process in due course.

The file was indeed provided. However, the Applicant filed a complaint under Alberta's privacy legislation, the Personal Information Protection Act (PIPA) for failure to provide the file in a timely manner.

The Adjudicator found that the former employer's response to the Applicant's counsel in the litigation was not sufficient. The Applicant was not represented in the request for personal information. Further, the Adjudicator found that the ability to access the requested information in the course of a litigation process does not detract from an Applicant's ability to request access to the information under PIPA, and that the former employer must still meet its obligations pursuant to PIPA. The response stating that the information would be provided in due course was found to essentially be a refusal to provide access to the requested information.

If counsel in ongoing litigation is made aware of a request for personal information made by another party to the litigation, it would be prudent to advise the client that the request should be treated as separate and apart from the litigation to ensure that obligations under privacy legislation are complied with. Further, it would also be wise to confirm your own retainer for both the litigation and privacy issue before responding to a request for personal information in your capacity as counsel. If you do not have expertise dealing with privacy legislation, the client should be advised to retain separate counsel on the issue.

It is important to recognize that there are separate obligations under privacy legislation and in the civil litigation process. Although disclosure can be provided in the discovery process, privacy legislation has applicable timelines and obligations that must be met apart from the litigation process.

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