Balancing privacy rights with the safety of women who have been subjected to gender-based violence has always been a challenge. How much information about an abuser should a survivor and those who are supporting her be able to have? How much information about her should the police have access to? What legal limitations are there on sharing information to create a safety plan in the context of intimate-partner or gender-based violence?
The jury at the 2022 CKW inquest grappled with this issue in the context of the murders of Carol Culleton, Anastasia Kuzyk and Nathalie Warmerdam, all killed by the same man in a matter of hours on the morning of September 22, 2015. Did service providers have information relating to one victim that, if shared, could have increased the safety of another? If so, why was it not shared? Evidence and testimony seemed to indicate that, across Ontario, different players in the IPV field – police officers, those working in probation, health care providers, victim services workers, community-based violence against women organizations, and others – had very different ideas about what information the law allowed them to share with one another; especially across sectors. Frustrations with the impact of this uncertainty on collaborative approaches to keeping victims safe were strongly expressed; by witnesses, but also by the members of the jury.
The 78th recommendation made by the jury was an attempt to address this. It called on the Office of the Information and Privacy Commission (IPC) to, working with the DVDRC, justice partners and IPV service providers, “develop a plain language tool to empower IPV professionals to make informed decisions about privacy, confidentiality and public safety.”
A new resource
The IPC took up the task immediately. Over the past almost two years, it has been working steadily and collaboratively to develop this tool. I’ve been impressed throughout the process with the genuine commitment the IPC has had to creating a tool that reflects the needs of those it is intended to serve. These consultations were not box-ticking exercises; they were sincere efforts to learn what was needed in order to create a useful resource.
Last week, on May 29th, the IPC released its resource, titled “Sharing Information in Situations Involving Intimate Partner Violence: Guidance for Professionals.” It’s an excellent tool that I hope will be of great benefit to those who work with survivors to support their safety.
As the Introduction says:
“The IPC recognizes that multiple sectors are responsible for assessing and reducing IPV harm, including justice, health, child, youth and family (children and family) services, and IPV services sectors. Each sector may also be subject to different privacy laws. To support collaboration, this guidance provides an overview of key provisions under Ontario’s privacy laws that permit sharing personal information without concern, with an emphasis on the provisions related to risk of serious harm around individual health or safety.”
Key points
The resource is written in very approachable language; far different from the many different pieces of legislation that address privacy in various contexts. It sets out the key points relating to privacy and information sharing in the IPV context:
- Sharing personal information must comply with legal requirements
- Privacy laws are not a barrier to sharing information when doing so can reduce or eliminate a risk of serious harm to an individual
- Organizations and their staff are generally protected from liability if they have acted in good faith when sharing information
- Governance frameworks, including policies and practices, can inform decision-making about lawful and responsible information sharing.
Information is provided in plain language about privacy laws in Ontario, especially the provisions that relate to sharing information without the individual’s consent if doing so will reduce the risk of harm to someone else.
Making it real
Decision trees, which pose questions, possible answers, and next steps that flow from each answer, appear throughout the resource to explore when and what information can be shared in different situations and according to different pieces of legislation. All the decision trees begin with the same question, which needs to frame all discussions and decisions about sharing personal information without that person’s consent:
“Is there an objective risk of serious harm to an individual’s health or safety?”
If the answer to that question is yes, the reader is then asked whether sharing that information would be reasonably likely to eliminate or reduce that risk of serious harm.
If the answer to the second question is also yes, the reader is told they can share the information that is necessary to eliminate or reduce the risk.
Each decision tree is accompanied by a fact situation and sections from the relevant legislation, which make the exercise easy to understand.
This is a great resource, and I thank the IPC for its hard work to create it. It will support collaboration among sectors to reduce the risk of harm to those who have been subjected to IPV. For too long, there has been disagreement (and some friction) between the justice sector and those who support survivors of IPV about what information can be shared, with the result that, sometimes, survivors have been unnecessarily exposed to ongoing risks.
As the guide concludes:
“Under Ontario’s privacy laws, organizations, service providers, and their staff are permitted to share personal information about an individual when there is reason to believe there is a risk of serious harm to an individual’s health or safety. Remember, if a decision about whether to share personal information under Ontario’s privacy laws is made after carefully assessing all available information and then the relevant factors, it will generally be considered reasonable and made in good faith.”