Alberta privacy commissioner clarifies privacy laws and rules about GSAs

Opposition says LGBTQ kids at risk as Alberta government introduces amended Education Act
WATCH (June 5, 2019): The Alberta government is redoing its framework for grade-school education but the Opposition says it will put gay students at risk. Vinesh Pratap reports.

In a rare move, the privacy commissioner issued a statement Tuesday to clarify how Alberta’s privacy laws protect the identities of students who join gay-straight alliances (GSA) at school.

READ MORE: Alberta introduces amended Education Act, Opposition says LGBTQ kids at risk

Jill Clayton said she’s been following the public debate about GSAs closely and felt it was important for her office to add its voice.

“There have been many perspectives in this debate and various interpretations — or misinterpretations — about how Alberta’s privacy laws apply to a student’s participation in a GSA,” she wrote.

Clayton made it clear a student’s participation in a GSA qualifies as personal information under the Freedom of Information Protection Act (FOIP) and Personal Information Protection Act (PIPA).

“This is why I am issuing an advisory… to assist school boards and private schools in determining the legal considerations when drafting policies or making decisions about disclosing a student’s participation in a school club, including GSAs.”

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Watch below (June 5): Alberta Education Minister Adriana LaGrange is asked why the word “immediately” was removed from legislation that refers to how schools must allow for the creation of gay-straight alliances if a student asks for one.

Education minister asked how legislation impacts GSAs
Education minister asked how legislation impacts GSAs

Education Minister Adriana LaGrange pointed to FOIP and PIPA on June 5, to address concerns the United Conservatives’ Bill 8 (Education Amendment Act) would allow schools to disclose the identities of children who join GSAs to their parents, essentially outing them.

“What is in the privacy legislation that will govern this is FOIP and PIPA, and that actually supersedes, so there will be privacy legislation that will ensure that the private information of a student is safeguarded,” LaGrange said.

READ MORE: Student-led walkout across Alberta Friday opposing government’s GSA rules

In the news release, the privacy commissioner included a link to the Advisory on Disclosing a Student’s Participation in a School Club.

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Scroll down to read the Advisory on Disclosing a Student’s Participation in a School Club document in full.

It explains that, under the FOIP Act, personal information can only be disclosed when:

  • Disclosure would not be an unreasonable invasion of the individual’s personal privacy
  • Disclosure will avert or minimize a risk of harm to the health or safety of a minor
  • The person the information is about consents to the disclosure

The document also explains that, under PIPA, personal information can only be disclosed with consent or in circumstances set out in the act, including when:

  • A reasonable person would consider that the disclosure is clearly in the interests of the individual and consent cannot be obtained in a timely way or the individual would not reasonably be expected to withhold consent
  • Disclosure is necessary to respond to an emergency that threatens the life, health or security of an individual or the public
File: Alberta’s information and privacy commissioner Jill Clayton.
File: Alberta’s information and privacy commissioner Jill Clayton. Global News

The document says when considering the consent of a minor, a school must consider if the minor is mature enough to understand the implications of giving consent, and that a minor’s FOIP rights “may be exercised by a guardian of the minor in circumstances where, in the opinion of the head of the public body, the exercise of the right or power by the guardian would not constitute an unreasonable invasion of the personal privacy of the minor.”

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It is not clear in the document or in Clayton’s statement how schools might interpret the “unreasonable invasion of personal privacy” point.

READ MORE: Albertans rally in support of current GSA rules after UCP education plan released

Under PIPA, rights can be exercised by a minor unless they don’t “understand the nature of the right or power and the consequences of exercising” it. In that case, “the rights and powers may be exercised by the guardian of the individual.”

Watch below (June 5): Sarah Hoffman, NDP Education Critic, and Janis Irwin, NDP MLA for Edmonton-Highlands-Norwood, are worried for the safety of LGBTQ kids after the United Conservatives announced their education act changes.

NDP worry about effects of Alberta education act on LGBTQ kids
NDP worry about effects of Alberta education act on LGBTQ kids

“Privacy rights… are most effective when individuals know how to exercise them,” Clayton said.

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“Students must understand that privacy laws exist and that they have rights under those laws. They must also know that there are mechanisms in place through my office to review situations when they believe their privacy rights have been infringed.”

If a student feels a school has improperly disclosed their personal information, the student can submit a complaint to the Information and Privacy Commissioner. The Commissioner can order that any inappropriate disclosures stop. Information about how to submit a complaint is available here.

READ MORE: Appeal dismissed in challenge to Alberta gay-straight alliance law

The Official Opposition said the privacy commissioner’s statement illustrates why FOIP and PIPA aren’t enough to stop schools from disclosing kids’ participation in GSAs.

“Both of these acts allow for a great deal of discretion for teachers, parents and school administrators to decide whether outing a student or disclosing that the student is in a GSA is an ‘unreasonable invasion’ of the student’s privacy,” said Rakhi Pancholi, the NDP’s Children’s Services critic, in a statement.

“The acts also allow for significant discretion to determine whether the student is mature enough to provide their own consent to the disclosure.”

Pancholi said these were the loopholes the NDP’s Bill 24 closed.

“Rolling back the existing legal protections in the School Act and relying on FOIP and PIPA alone to protect the privacy of vulnerable students will allow queer and trans kids to be ‘outed’ first, and then be required to file a complaint to the Privacy Commissioner later.

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“This puts LGBTQ students at risk and places the onus on them to fight for their rights after they’ve been violated.”

The UCP asserts the bill will give Alberta “among the most comprehensive statutory protections for GSAs in Canada” and that the province is committed to an inclusive, non-bullying environment in all schools.

Bill 8 passed first reading on June 5; the second reading was adjourned June 17.

Advisory on Disclosing a Student’s Participation in a School Club by Emily Mertz on Scribd