Sharing Information in Situations Involving Intimate Partner Violence

The Information and Privacy Commissioner of Ontario (IPCO) has released new guidance to help institutions make informed decisions about privacy, confidentiality, and public safety in situations of intimate partner violence (IPV) risk.

As outlined by the IPCO:

… the [IPCO] became aware that IPV professionals (staff) sometimes feel that they are not permitted to disclose personal information or personal health information (personal information) due to perceived barriers under Ontario’s privacy laws. When staff do not have the consent of a victim or survivor, abusive partner, or other individual(s) involved (for example, a child), they sometimes feel conflicted about how to respond to a situation when there is a risk of serious harm because privacy rights appear to conflict with health or safety concerns.

The new IPCO guidance is intended to help Ontario’s privacy professionals by explaining when the law permits sharing personal information without consent, especially in situations where there is a risk of serious harm to a person’s health or safety.

The guidance provides a helpful framework of the various ways an institution is permitted to share personal information with a requestor, whether under an official Freedom of Information request or otherwise.

Sharing of personal information is usually conducted with the consent of the individual to whom the information relates. In the context of IPV, however, the guidance reminds us that personal information can also be shared without consent, if the purpose of the disclosure is to reduce the risk of serious harm.

In certain situations, it may be unclear whether a risk of serious harm will materialize or worsen, which may create uncertainty around whether it is acceptable to disclose personal information in a particular circumstance without the consent of the person to whom the information relates. The new IPCO guidance provides helpful clarification on this point, explaining as follows:

If a decision to share — or not to share — personal information is made after carefully assessing all the available information and the relevant factors, it will generally be considered reasonable and made in good faith under Ontario’s privacy laws.

Factors that should be taken into consideration when deciding whether to disclose personal information without consent include:

• the likelihood of the harm occurring
• the severity of the harm
• how soon the harm might occur
• whether sharing personal information is reasonably likely to reduce or eliminate the risk of harm to the individual

Taking consideration of the factors set out above, institutions may share personal information “if there is an objective risk of serious harm to an individual and the sharing is reasonably likely to eliminate or reduce the risk”. That said, to the extent possible, when disclosing personal information with the justification of reducing the risk of serious harm, only information that is reasonably necessary to eliminate or reduce the risk should be shared.

Ontario’s privacy laws generally provide individuals with a right of notice when a public institution has disclosed their personal information to another individual. In the context of IPV, the IPCO has now clarified that although an institution must provide written notice to the individual whose personal information was shared, and this notice must be provided “as soon as reasonably possible”, it is acceptable to delay giving notice in situations where such notification would cause a significant risk to someone’s health or safety. In this situation, the notice to the person whose information is being disclosed can be delayed until the relevant risk has abated. As explained by the IPCO:

For example, notice to an abusive partner can be delayed until after a safety plan is in place to protect a victim or survivor at significant risk.

The new guidance document is divided into sections, with specific advice tailored to the justice sector, the health care sector, the child, youth and family services sector, and the IPV services sector. Helpful examples and decision trees are included as well to help institutions arrive at the right conclusions in what can be very difficult and high-stakes situations where time is of the essence.

The full guidance document is available from the IPCO’s website at the following link: https://www.ipc.on.ca/en/media/4239/download

The FOI Assist Software

The FOI Assist software is continually updated to reflect any changes to FIPPA, MFIPPA, and relevant updates from the Information and Privacy Commissioner of Ontario. This ensures that when you use FOI Assist to track and respond to FOI requests, you can be confident you are relying on the most current legislation and guidance.

To learn more about how the FOI Assist software can Make Freedom of Information Easy^TM at your institution, contact FOI Assist or book a demonstration today.