Practitioners often wonder why it seems that the rest of the world is receiving increased privacy of their personal information while their privacy is being reduced. The tendency is for regulators to retain information about their members for longer periods of time and to put increasing amounts of those details in the public register. Most public registers are now finding their way to the websites of regulators.

For example, by June 2009, all 21 health regulators will have to put their entire register on their websites. In addition, the content of what is in the public register is being expanded to include summaries of most disciplinary and incapacity decisions and any findings of professional negligence against a member. There are a few narrow exceptions including where contact information may jeopardize the safety of an individual.

This increased transparency is somewhat at odds with what is happening in the workplace. For example, there are numerous restrictions as to what employers can collect or record about their employees. Under privacy legislation, many commercial enterprises have to be able to justify the collection of personal information about clients and, sometimes, employees. Consent is often required. In many unionized work settings, disciplinary records are automatically deleted after a brief period of time unless there is a recurrence of the activity.

However, there is a general expectation that members of regulated professions should have less privacy than others. Many members of the public expect that they can find out about the practitioner’s history from their regulatory body. There is also an expectation that regulators maintain concerns about individual practitioners for an extended period of time in case there is a recurrence of the conduct or a pattern of behaviour emerges.

The balancing of these competing expectations about privacy and accountability pose a challenge for any regulator. A recent case in the non-professional field illustrates how the courts struggle with these competing values as well.

In Tadros v. Peel Regional Police Service, 2007 CanLII 41902 (ON S.C.), the issue was police checks. The facts are summarized as follows. “Mr. Tadros was charged by the Peel Police Service with four counts of sexual assault, and four counts of sexual exploitation. This apparently was based upon allegations made by the children who were residents in his group home. He maintains that the allegations were entirely false. When the matter finally came on for trial on October 30, 2003, all eight of these charges were withdrawn at the request of the Assistant Crown Attorney.”

Mr. Tadros “made a number of other applications for employment in social service agencies and all have been rejected. The conclusion seems unavoidable that social service work for which he was trained and in which he has considerable experience is closed to him because of the retention and more particularly the dissemination of the information about the eight sexual assault charges which were subsequently withdrawn. It is these references which the applicant seeks to have expunged from his record with the police.”

There were two issues:

1.      Should the police be able to retain the information in its files about the withdrawn charges?

2.      Should the withdrawn charges be available to prospective employers on a police check?

On the first issue the court supported the right of the police to retain the information about the withdrawn police charges. The court rejected a number of constitutional arguments made by Mr. Tadros. While the Canadian Charter of Rights and Freedoms does concern itself with privacy interests in various contexts, there was not an overriding privacy value that prevented the police from retaining these records. Presumably the court felt that the police might find these records of value if there were future investigations of a similar nature. While these records do not provide any evidence of wrongdoing by Mr. Tadros, they might provide a line for future inquiry.

On the second issue, however, the court was more sympathetic to Mr. Tadros’ position. It found no basis under the Municipal Freedom of Information and Protection of Privacy Act for the release of the information. And any consent forms that may have been signed by Mr. Tadros were not sufficiently specific to authorize the release of this information. The court did not answer the question as to whether a more specific consent form would have authorized the disclosure of the information?

Because of the specific statutory provisions in issue, this case cannot be applied directly to professional regulators. However, it seems likely that regulators can take comfort that the courts will be open to regulators maintaining records of closed investigations even where no conclusion of wrongdoing was reached. However, when it comes to disclosure of personal information about unproved allegations, regulators should either have legislative authority for the disclosure or have specific consent from members to authorize the disclosure.

For example, many regulators share information about investigations that did not lead to discipline (or led to unsuccessful discipline proceedings). To the extent that this information is not already public, regulators should examine their legislative authority for such information sharing or should have fairly specific consent forms for members to sign to support the disclosure. Many regulators have provisions allowing the disclosure of information in the course of administering the legislation. This provision might well allow authority reciprocal information sharing amongst regulators.

To see the Tadros case, go to: www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Ontario&path=/en/on/onsc/doc/2007/2007canlii41902/2007canlii41902.html.

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