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When courts put sensitive data online

Online access to Federal Court documents must have appropriate limits.

Justice and data

A transparent judicial process is essential to a properly functioning democracy, but there is something to be said for the “practical obscurity” of paper-based records and the privacy they offer, says a CBA working group looking at a Federal Court proposal to make court files available online.

The court asked the CBA to weigh in on the proposal, whose aim is to increase transparency in accordance with the open courts principle and the guarantee of freedom of expression under s. 2(b) of the Charter of Rights and Freedoms.

The CBA working group, comprising members of the Federal Court Bench and Bar Committee as well as several relevant sections, including Privacy and Access and Immigration, says increasing transparency through online access to court files must be balanced against the possibility that such access could undermine the rights and interests of participants. In its submission to the court it makes several recommendations for protecting privacy where necessary. It also suggests that the court establish a pilot project to test the flexibility, efficiency and cost of the initiative before going ahead.

Federal Court materials are currently available at Registry Offices across the country, the group notes, unless they’re designated as confidential. Anyone who wants to look at the documents must go to an office and ask to see them, which creates a sort of privacy protection that would disappear if they were posted online without proper safeguards.

“Online access creates a risk of nefarious uses such as fraud, data mining, identity theft, stalking, harassment, discrimination, persecution and other abuses,” the group says.

The working group says requiring people who want access to online documents to create accounts using their proper names and addresses, supported by valid identification, would promote accountability and security. Charging fees for the service should “dissuade frivolous requests.”

The working group also makes note of the Tax Court of Canada’s Practice Note 16, which reminds parties of their responsibility to limit disclosure of personal and confidential information, such as social insurance numbers or sensitive medical information, from all pleadings and documents filed with the court. To the list in the Practice Note the group would add identity documents, financial and tax information, and all other personal information that could enable individuals to be identified for purposes such as identity theft, stalking or harassment.

The immigration context puts a more perilous spin on the everyday impact of putting sensitive data online, as overseas actors would have easy access to information that could be used, for example, to target a would-be refugee’s family or business interests in the home country.

The working group recommends following the Australian model, which categorizes online federal court files as non-restricted, restricted or confidential, and treats access to each classification differently.

As well as requiring them to register and pay a fee, the working group recommends that anyone requesting access to restricted documents also be asked to provide a reason for seeing them.

“A restricted category of documents in the immigration context would safeguard against unlawful access, including data mining and illicit uses of personal and confidential information.” Courts should base permission to see these documents based on the identity of the entity requesting them and their rationale for doing so. The group recommends that immigration files should not be available online unless leave has been granted.

Other recommendations from the working group include:

  • That information related to minors requires special protections
  • That the documents held online be protected from data mining
  • That documentation be accessible only through the Federal Court website, and not online search engines
  • There should be no ability on the website to search for key terms such as HIV, ISIS or Baha’i.