Notes from the Section
Bill 52: Amendments to Alberta’s Health Information Act
By Anne Côté and Jane Steblecki
The reaction of the public and of health care stakeholders to Bill 52 has been mixed. While there has been strong support for the expansion of the scope of the Health Information Act beyond those health professionals operating in the public system, there has also been criticism, much of it focused on the provisions relating to the province’s Electronic Health Record.
U.S. border searches of electronic devices
By Janina M. Kon
On July 16, 2008, the U.S. Customs and Border Patrol published the Policy Regarding Border Searches of Information. Travelers expecting restraint in U.S. customs officials’ searches of electronic devices will be disappointed.
Section news
Call for nominations
The National Privacy and Access Law Section is seeking nominations for the position of Secretary and up to 10 Executive Members, for the term Sept. 1, 2009 to Aug. 31, 2010. For further details, please see the full call for nominations.
Message from the Editor
By Melanie Bueckert
The past few months we’ve seen diverse developments in privacy and access to information law, from Bill 52 in Alberta to legislative changes in Manitoba that may have privacy implications. Plus: the federal Privacy Commissioner’s Office recently launched a redesigned website.
Bill 52: Amendments to Alberta’s Health Information Act
By Anne Côté and Jane Steblecki
Field Law
The Alberta Government has introduced legislation which substantially changes the ambit of the Health Information Act (“HIA”). Bill 52, which (at the time of writing) has achieved Second Reading and is at the Committee stage, aims to take on several major tasks. Key tasks being: to expand the reach of the legislation to all health information in the possession of listed health practitioners, to revise provisions relating to the definition of health information, to deal with health information repositories, and to mandate the inclusion of health information in the province’s Electronic Health Record (“EHR”).
Expanded scope
The HIA currently applies only to health information in the public sector, as well as health information collected, used and disclosed by pharmacists and pharmacies. Bill 52 has the effect of broadening the scope of the HIA to apply to all health service providers, irrespective of whether they are paid by or from public funds. Bill 52 removes from the HIA the need that the health service be “directly or indirectly, partially or fully, paid for by the Department.” The definition of health service provider will simply refer to a list of health service providers set out in the Regulations. It is understood that this list will echo those health care professionals regulated by the Health Professions Act.
Bill 52 also expands the definition of “affiliate” through reference to the Regulations. This definition will also clarify that information managers are affiliates, a matter presumed but also debated. The need to further delineate the identity of affiliates appears necessitated by the expanded scope of the HIA. For instance, not all organizations and employers that manage health information in relation to the collection and remittance of health insurance premiums are necessarily affiliates pursuant to the expanded scope of the HIA.
Reorganized definition of health information
The HIA currently sets out three categories of health information: two that relate to information about patients, including diagnostic, treatment and care information, and one that is specific to health service providers. Pursuant to Bill 52, information pertaining to health service providers will be assumed into the definition of diagnostic, treatment and care information. The new definition of diagnostic, treatment and care information will include an exhaustive list of information pertaining to health service providers and includes such elements as: name, business title, type of health service provider, license number, profession, employer, and provincial service provider identification number.
Because of this, health care professionals will have to consider their information as it appears on a patient’s chart as no longer their own with distinct protections under the HIA but, instead, as information that belongs to the patient. Where in the past health care provider information has been severed from health records provided to applicants seeking their own health information, this may no longer always be the case. This shift raises interesting questions with respect to the mandatory and discretionary grounds for refusing access. See, for example, s.11(2)(a), which contemplates health information about an individual other than the applicant asK well as s.11(2)(b) concerning procedures or results of an investigation, discipline proceeding, practice review or inspection relating to a health service provider.
Authorizing disclosure without consent for complaints to professional regulatory bodies
Pursuant to Bill 52, a new subsection will authorize custodians to disclose health information without consent in order to lodge a complaint with a professional body. Currently, the HIA permits disclosure of information without consent “for the purpose of an investigation.” However, in many cases certain health information needs be disclosed to a professional regulatory body in order to initiate, or assess the appropriateness of commencing, an investigation. The existing provision requires that the professional regulatory body commit in writing to measures to safeguard and then destroy health information. The proposed new subsection does not attach such a requirement.
Health information repositories
Bill 52 adds a new Part to the HIA regarding the regulation of health information repositories. Health information repositories are databases or warehouses of health information as further delineated in the Regulations. The content of this Part of the HIA is skeletal as much of the related content is expected to be promulgated pursuant to the Regulations.
Electronic Health Record governance
The amendments in Bill 52 also add a new Part to the HIA dealing with Alberta’s EHR. This Part allows for health information to be moved through the EHR by certain “authorized custodians,” including the Department, the Minister, and presumably Alberta Health Services. These entities are permitted to move information through the EHR for any of the purposes currently listed in s. 27 of the HIA. Section 27 contemplates uses such as the provision of health services, discipline proceedings, various management purposes, health service provider education, and conducting research.
Pursuant to Bill 52, other custodians, determined by eligibility requirements to be set out in the Regulations, may be granted access to information in the EHR; however, if so, only for a limited set of purposes. Of particular note, these purposes will not include health service provider education, discipline proceedings, or research. Bill 52 also creates a new offence provision with liability for a fine up to $100,000 for custodians who use EHR information in contravention of this Part of the HIA.
Spurring much debate on Albertans’ ability to control their health information, Bill 52 empowers the Minister to require that certain custodians make listed health information available in the EHR. Failure to do so will result in an offence and liability for a fine of up to $500,000.
Additional amendments
Bill 52 provides clarification regarding research and research ethics board (“REB”) processes. Custodians will only be able to collect, use or disclose health information for data matching purposes if they have sought REB approval. Bill 52 also clarifies the obligation for any person who intends to conduct research with individually identifying health information that is in the care of a custodian or in a health information repository to submit a proposal to an REB. This proposal must contain information requested by the REB, as well as information specified in the Regulations.
Amendments in Bill 52 also remove the requirement that the Minister and Department prepare a privacy impact assessment where they compel information regarding health services paid by public funds.
Finally, Bill 52 provides the Alberta Information and Privacy Commissioner with increased powers to use information in its custody and control to share this information with other Commissioners across Canada in relation to matters that cross jurisdictional lines.
Reaction to Bill 52
The reaction of the public and of health care stakeholders to Bill 52 has been mixed. There has been strong support for the expansion of the scope of the HIA beyond those health professionals operating in the public system. However, much of the criticism of Bill 52 has focused on the provisions relating to the EHR.
The Alberta Medical Association (“AMA”) has stated publicly that it opposes the amendments in Bill 52 that relate to the EHR. Among other concerns, the AMA has objected to the ability of the Minister to compel physicians to provide health information, as well as to any lack of tracking of who has accessed health information in the EHR and for what purpose.
Frank Work, Q.C., Alberta’s Information and Privacy Commissioner, has also criticized the provisions of Bill 52 relating to the EHR as they remove the right of a patient to request that their health care provider consider the patient’s express wishes prior to disclosing information to the EHR system, and as they remove the right of a patient to ask for a record of who is accessing their health information. The Information and Privacy Commissioner also expressed concern regarding the amendments relating to health information repositories, and the repeal of the requirement that the Minister file a privacy impact assessment when compelling health information.
At the time of writing, Bill 52 has been referred to the Standing Committee on Health. That Committee has heard submissions from a number of stakeholders and now plans on receiving input from members of the public. Given the reaction to Bill 52, particularly in relation to the EHR, it is unclear whether the Bill will proceed without further changes.
U.S. border searches of electronic devices
By Janina M. Kon
Streamline Counsel Inc.
Much attention has been paid recently to the extent to which travelers may be subject to warrantless searches of their electronic devices. Devices such as laptops and the BlackBerry often contain more confidential information than other items in a suitcase. For example, laptops may contain information on a traveler’s personal and business contacts, web browser information on sites recently visited, photographs, and the text of e-mail communications.
On July 16, 2008, the US Customs and Border Patrol (CBP) published the Policy Regarding Border Searches of Information. Travelers expecting restraint in U.S. customs officials’ searches of electronic devices will be disappointed.
Read the full article 
Call for nominations
The National Privacy and Access Law Section is seeking nominations for the term
Sept. 1, 2009 to Aug. 31, 2010. For further details, please see the full call for nominations.
Message from the Editor
By Melanie Bueckert
This edition of Privacy Pages features an article on privacy issues arising from border searches of electronic devices and a discussion of Alberta’s Bill 52 (amending the Health Information Act), along with the usual Messages from the Chair and yours truly.
This is only a sampling of the diverse developments in privacy and access to information law over the past few months. For instance, the federal Office of the Privacy Commissioner has recently posted a number of interesting documents on their newly redesigned website. For instance, surfing the site you can find a March 2009 survey about “Canadians and Privacy,” David M. Paciocco’s April 2009 opinion on Bill 27 (regarding pretexting) and Settled Case Summary #30, regarding “Impersonation, privacy settings and social networking sites.”
In addition to Bill 52 in Alberta, Manitoba is considering a few legislative measures that may have privacy implications. See, for example, Bill 25, The Statistics Amendment Act, and the ongoing public consultation regarding motor vehicle information disclosure requirements.
If you learn of some new privacy or access to information developments in your jurisdiction, please share them with your fellow section members using the Section’s e-mail listserv. If you have not already done so, please visit the Listserv webpage to register.
As always, the Section invites submissions for future issues of Privacy Pages, and we welcome comments and suggestions on how we engage and communicate with members. You can send inquiries and articles to me directly by email or, if you prefer, contact me by phone at (204) 945-6457.
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