Privacy Considerations when Responding to a Police Request for a Tenant’s Personal Information
The Personal Information Protection and Electronic Documents Act (“PIPEDA”) governs the ways in which landlords collect, use and disclose tenants’ personal information. For the purposes of PIPEDA, personal information means any information about an identifiable individual, such as a tenant’s address, phone number, name, income information, etc. Landlords often collect, use and disclose this type of information to administer leases and to carry out their obligations in the course of the landlord-tenant relationship. In general, PIPEDA requires that landlords obtain the consent of tenants in order to collect, use and disclose their personal information for these or any other purposes. However, it is not uncommon for landlords to receive requests from the police for production of a tenant’s personal information without the tenant’s consent. When faced with these requests, landlords should be aware of the limited instances under PIPEDA when disclosure of a tenant’s personal information to police, without the tenant’s consent, will be lawful.
Section 7(3) of PIPEDA sets out the circumstances in which a landlord may disclose a tenant’s personal information without his or her knowledge or consent. Generally, section 7(3) provides that when faced with a police request for disclosure of a tenant’s personal information without the tenant’s consent, landlords have two options to make a lawful disclosure; otherwise, landlords may face liability for breaches of PIPEDA:
Landlords are able to lawfully disclose a tenant’s personal information to the police, without the tenant’s consent, if the police have provided the landlord with a subpoena, warrant, or order compelling production of the information. Landlords should retain a copy of any such document to show due diligence.
If the police do not have a subpoena, warrant or court order, landlords are able to lawfully disclose a tenant’s personal if the police provide the landlord with the following three items:
1) A written request for the information
2) Written documentation identifying their “lawful authority” to obtain the information. In considering whether a law enforcement authority has identified its “lawful authority” under this option, the Supreme Court of Canada has been clear that “lawful authority” requires more than just a request by law enforcement, and rather requires law enforcement to provide their specific, legal authority to request the information, otherwise landlords should insist that a subpoena, warrant, or order is obtained.
3) Written documentation indicating for which of the following four purposes the information is being requested:
i. The police suspect that the information relates to national security, the defence of Canada or the conduct of international affairs;
ii. The disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law;
iii. The disclosure is requested for the purpose of administering any law of Canada or a province; or
iv. The disclosure is requested for the purpose of communicating with the next of kin or authorized representative of an injured, ill or deceased individual.
As noted above, if a landlord is unable to satisfy the criteria of either Option 1 or Option 2, landlords should refuse the request for disclosure and document the reasons for doing so. Otherwise, landlords may find themselves offside of PIPEDA’s requirements.