The New NS Missing Persons Act: 5 Privacy Implications for Businesses, Organizations & Public Bodies
June 2, 2015
By David Fraser, at McInnes Cooper
Effective April 22, 2015 the NS Government enacted the NS Missing Persons Act, lowering the threshold for police to get an order to access records and premises of practically every business, organization and public body in NS. Understandably, most attention has focused on the potential impact on missing persons and their families. Various groups have expressed concern about the rights and powers it gives police, the low threshold for police to get an order, and the impact on missing persons’ safety and security.
But the Act will have business implications too: businesses and public bodies will be among those required to produce records and grant access when police get an order under the Act. Here are the top 5 implications of the NS Missing Persons Act for businesses, organizations and public bodies:
- Both your business records and your business premises are accessible. Police can obtain two different types of court orders under the Act giving them access to personal information:
- Record-access Order. This court order authorizes police to access “records” that may assist them locate a missing person.
- Search Order. This court order authorizes police to enter a dwelling or other premises, by force if necessary, to search for missing minors or “vulnerable people” (individuals for whom a guardian was appointed under the Incompetent Persons Act or whom the Minister of Community Services or a court order decides is an adult in need of protection).
- The range of records you’ll be required to disclose and the premises they can access under the Act is broad. The Act authorizes a court to make a records-access order that gives police access to and copies of (requested) a far-reaching range of records:
- any business records containing contact or identification information;
- telephone and other electronic communication records, including:
- records related to signals from a wireless device that may indicate the location of the wireless device,
- cell phone records,
- inbound and outbound text messaging records, and
- Internet browsing-history records;
- global-positioning system tracking records;
- video records, including closed-circuit television footage;
- records containing employment information;
- records containing personal health information as defined in the NS Personal Health Information Act;
- records from a school, university or other educational institution containing attendance information;
- records containing travel and accommodation information;
- records containing financial information; and
- any other records specified in the order that the court considers appropriate.
A court can impose limits on the records the holder must produce and the Act doesn’t compel the person or company with the information or record to disclose it if it’s protected by legal privilege. However, scrimping on efforts to locate records probably won’t cut it: the order can also require the record holder to give the police agency an accounting of its efforts to locate any records it says it can’t find.
In terms of premises, the Act doesn’t include any restrictions on the types of premises to which a search order can relate.
- Practically, every business and public body is subject to receive an order under the Act. The Act authorizes a court to make a records-access order that gives police access to and copies of (if requested) records in the possession or under the control of an individual, a partnership, an unincorporated association, a public body (as defined in the NS Freedom of Information and Protection of Privacy Act) and a custodian (as defined in the Personal Health Information Act). This, combined with the far-reaching range of the types of records the Act authorizes a court to order police access and the fact there are no restrictions on the types of premises in relation to which a search order can relate, means that practically, every organization, business and pubic body that might have relevant records – which includes hospitals, schools, universities and colleges – could receive an order. It’s clear the Act will apply to businesses, organizations and public bodies in NS; whether an order under the Act can compel a business outside of NS to give access to records remains to be seen.
- An order is – relatively – easy to get. Before the Act took effect, when police want to get records about a missing person or to search premises for that missing person, they have to get a search warrant – and to do that, they police must present evidence to the court that a crime was likely committed, and the warrant typically pertains to a defined set of records. The new Act, modeled on similar laws in BC, Alberta and Manitoba, significantly lowers this threshold when a person is reported missing: police need only demonstrate that a person is missing and at risk to obtain an order under the Act that gives them access them a wide range of personal information in records and at premises. The initial threshold is part of the Act’s definition of a “missing person”; police must demonstrate that:
- a person’s whereabouts are reported to be unknown and continue to be unknown;
- reasonable efforts have been made to locate the person without success;
- the person’s safety and welfare are feared; and
- there is an urgency or necessity to locate this person.
Once police have satisfied this initial threshold, police must also have reasonable grounds to believe the minor or vulnerable person may be in the dwelling or premises.
- Police can’t disclose or use the information and/or records obtained with an order under the Act – except if there’s a crime. The Act says that any information or record a police agency obtains under it is confidential, and can only be disclosed:
- for the purpose of locating a missing person or a use consistent with that purpose;
- when required by law;
- to another Canadian law-enforcement agency, or one in another country under an arrangement, written agreement, treaty or legislative authority but only to the extent necessary to further the missing person investigation;
- if the person the information or record is about has consented to the disclosure;
- for the purpose of furthering its missing person investigation by releasing the following information obtained through a media release, posting it on a website or in any other manner the police agency considers appropriate:
- the missing person’s name;
- her physical description;
- her photograph;
- information about any medical condition she has that poses a serious or immediate threat to her health;
- pertinent vehicle information;
- the location where she was last seen; and
- the circumstances surrounding her disappearance;
- to announce that a missing person has been located; or
- to other police agencies, law-enforcement agencies and government departments or agencies to the extent necessary to co-ordinate investigations and other activities respecting missing persons.
But if the missing person investigation becomes a criminal investigation, the Act doesn’t prevent the police agency from using the information and records it obtained under the Act in that criminal investigation. Police are also permitted to use any unrelated evidence they discover when they enter premises looking for missing person – but find any unrelated evidence they discover that could be criminally related.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Law Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2015. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
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