Canadian Refugee Procedure/RPD Rule 21 - Disclosure of Personal Information

RPD Rule 21
The text of the relevant rule reads: Disclosure of Personal Information

Disclosure of information from another claim 21 (1) Subject to subrule (5), the Division may disclose to a claimant personal and other information that it wants to use from any other claim if the claims involve similar questions of fact or if the information is otherwise relevant to the determination of their claim.

Notice to another claimant (2) If the personal or other information of another claimant has not been made public, the Division must make reasonable efforts to notify the other claimant in writing that (a) it intends to disclose the information to a claimant; and (b) the other claimant may object to that disclosure.

Request for disclosure (3) In order to decide whether to object to the disclosure, the other claimant may make a written request to the Division for personal and other information relating to the claimant. Subject to subrule (5), the Division may disclose only information that is necessary to permit the other claimant to make an informed decision.

Notice to claimant (4) If the personal or other information of the claimant has not been made public, the Division must make reasonable efforts to notify the claimant in writing that (a) it intends to disclose the information to the other claimant; and (b) the claimant may object to that disclosure.

Information not to be disclosed (5) The Division must not disclose personal or other information unless it is satisfied that (a) there is not a serious possibility that disclosing the information will endanger the life, liberty or security of any person; or (b) disclosing the information is not likely to cause an injustice.

Information from joined claims (6) Personal or other information from a joined claim is not subject to this rule. If claims were once joined but were later separated, only personal or other information that was provided before the separation is not subject to this rule.

The process specified in this rule does not apply if the information has been made public
Rule 21(2) provides that the Board must make reasonable efforts to notify a claimant whose information it intends to disclose in another claim if their information has not been made public. If the information has been made public, this rule does not apply, as discussed in the Board's public commentary to the previous version of these rules: "This rule does not apply ... where the information is already a matter of public record. Information may become public when a claim is the subject of a judicial review application before the Federal Court, and the court does not make an order for confidentiality, or when the Division decides to have a proceeding conducted in public".

The process specified in this rule does not apply to evidence disclosed by the Minister
Rule 21 only applies to disclosure by the Division. It does not apply to disclosure by the Minister. Where the Minister discloses information from one claim to another claim themselves, for example disclosing a Basis of Claim form from one claim on another claim, Rule 21 does not per se apply. However, pursuant to s.166 of the IRPA, the Board has the jurisdiction to enquire into the source of information provided to it that originates from another claim and to order that particular measures be taken to ensure the confidentiality of any information.

The Board may disclose information about a claim to other organizations for the purposes of administering and enforcing the Act and Rule 21 does not apply to such disclosures
The instructions on the Basis of Claim form that all claimants receive states: "The personal information you provide on this form is collected under the authority of the Immigration and Refugee Protection Act for the purpose of determination of your claim for refugee protection by the IRB. Your personal information may be shared with other organizations including the Canada Border Services Agency (CBSA), Citizenship and Immigration Canada (CIC), the Canadian Security Intelligence Service (CSIS) and law enforcement agencies, for the purpose of administration and enforcement of the Immigration and Refugee Protection Act." That said, the CBSA cannot disclose personal information about a person’s refugee claim to the country of persecution at any point, whether before or after the person has been found to be a Convention refugee: Canada v. Lin.

The Division may partially redact information disclosed under this rule
Rule 21(1) provides that "the Division may disclose to a claimant personal and other information that it wants to use from any other claim if the claims involve similar questions of fact or if the information is otherwise relevant to the determination of their claim." As was stated in the Board's commentaries on the previous version of these rules, "Normally the information to be disclosed will include the source claimant's Personal Information Form in its entirety. However, specific information will be removed from the Personal Information Form where the Division decides that disclosure of that information would give rise to an unacceptable risk or injustice." Notwithstanding the transition from the PIF form to the BOC, the principle that the Board may disclose information in whole, or in part, under this rule persists.

Rule 21(1): The Division must determine that evidence is relevant to the other claim before disclosing it under this rule, but it need not assess its probative value
Rule 21(1) provides that "the Division may disclose to a claimant personal and other information that it wants to use from any other claim if the claims involve similar questions of fact or if the information is otherwise relevant to the determination of their claim." As such, the Division may only act under Rule 21 where the two claims involve similar questions of fact or if the information in question is "otherwise relevant to the determination" of the other claim. If the information to be disclosed were not relevant, the Board would err if it disclosed it. That said, so long as the information is relevant, the Board need not assess how probative it is to the claim; that assessment is best left to the individual Member hearing the other matter. This was explained in the Board's commentary to the previous version of these rules as follows: "The decision to transfer information as potential evidence from one claim to another is not a decision as to the probative value of that information. The parties and the refugee protection officer will have an opportunity to address that issue at the hearing of the claim."

Rule 21(4): Notifying the claimant that they may object to the disclosure of their information
Rule 21(4) provides that the Division must make reasonable efforts to notify a claimant in writing that it intends to disclose private information to the other claimant and that the claimant may object to that disclosure. Where a claimant consents to the disclosure, then the Board should proceed to do the Rule 21(5) risk assessment.

Where a claimant objects to the disclosure, then the Board should assess whether it is permissible to disclose the information under the federal Privacy Act, as described by the Federal Court in AB v. Canada. AB v. Canada was a 2002 Federal Court decision which held that the Board's decision to release the applicant's personal information to another refugee claimant was not permitted under the Privacy Act in the circumstances of that case. However, it may be noted that in that case the court considered it important that there was no "Act of Parliament or any regulation made thereunder that authorizes the disclosure of the applicant's personal information contained in his refugee record". The subsequent creation of RPD Rule 21 may be considered a response to this decision. For more discussion of the implications of the Privacy Act see: Canadian Refugee Procedure/RPD Rules 55-56 - Joining or Separating Claims or Applications.

Rule 21(5): The risk assessment the Board must conduct before disclosing personal or other information under this rule
The Board's commentary regarding the previous version of the RPD Rules commented on the risk assessment that the Board is to undertake prior to disclosing information pursuant to this rule thusly: "Whether or not the source claimant objects, the Division will assess the risk to satisfy itself that the disclosure of the source claimant's information would not give rise to an unacceptable risk or injustice. The source claimant's information will be disclosed to the parties only after the Division has assessed the risk and authorized the use and disclosure of that information. The same considerations apply when information about the receiving claimant is provided to the source claimant." Lorne Waldman writes that "Generally speaking, the policy that has evolved is that the Board will provide notice to the claimant if possible and, if the claimant does not object to this information being disclosed, it is disclosed."

Rule 21(6): Information from joined claims
Rule 21(6) provides that personal or other information from a joined claim is not subject to this rule. In other words, if claims were once joined but were later separated, personal or other information that was provided before the separation is not subject to this rule such that the Division need not go through the risk assessment and notification process when keeping the material on each of the disjoined files. That said, this rule does not require that the information be kept on both files after the disjoinder and the Division would have discretion to remove, for example, irrelevant information from a file at the point of disjoinder.