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Guidance on Preparing Information Sharing Agreements Involving Personal Information


Acknowledgement

This Treasury Board of Canada Secretariat (TBS) Guidance Document has been modelled after a similar document produced in 2006 by the Privacy Subcommittee of the joint councils of the Public Sector Chief Information Officer Council and the Public Sector Service Delivery Council.  The two Councils and the Subcommittee are made up of representatives of federal, provincial and territorial governments.  The Privacy Subcommittee's document is entitled Government-to-Government Personal Information Sharing Agreements - Guidelines for Best Practice.   

This TBS guidance document focuses on providing advice for preparing federal Information Sharing Agreements that involve the sharing or exchanging of personal information.  TBS has used some of the privacy principles and practices identified in the Privacy Subcommittee's document and we would, therefore, like to thank the Subcommittee for its groundbreaking work in this domain.

TBS participates as an active member of the Privacy Subcommittee and will share this guidance with other Subcommittee members for their use and, if needed, adaptation to their respective jurisdictional needs. 

1. Introduction

"Note: This document is meant to be read in electronic format to take advantage of the hyperlinks (links to other documents) and bookmarks (links to other sections of this document)."

1.1 Background

In 2006, the Treasury Board of Canada Secretariat (TBS) published a report entitled Privacy Matters: The Federal Strategy to Address Concerns about the USA PATRIOT Act and Trans-border Data Flows.  As part of the government strategy to address concerns related to the USA PATRIOT Act and trans-border data flows, the Secretariat issued a guidance document to institutions entitled "Guidance Document: Taking Privacy into Account Before Making Contracting Decisions" and undertook to issue further guidance to federal institutions on Information Sharing Agreements (ISAs) with other levels of governments.  The report recognized that the sharing of personal information should not result in an unreasonable infringement of privacy rights, a potentially significant issue when personal information is transferred between jurisdictions with different legal frameworks or jurisdictions that do not have similar legislation for protecting privacy.  This document therefore is intended to provide guidance on preparing ISAs that involve personal information.

This guidance is designed for all institutions subject to the Privacy Act.  It is for use in the consideration and development of ISAs involving personal information shared with other governments within Canada and across international borders.  The document is not a mandatory policy instrument but outlines common principles for the sharing or exchanging of personal information with other governments.  It should assist institutions in designing privacy-compliant ISAs.  Institutions should however recognize that all ISAs are unique and adapt the advice provided to each particular situation, including the context and needs of the organizations involved.  

While this guidance is intended for government-to-government information sharing, it can also be used in the preparation of inter-departmental agreements.  Institutions should, however, take into account that some considerations and advice in this document may not apply to inter-departmental agreements.  For example, inter-departmental agreements would not usually involve the transfer of personal information outside of Canada, and thus would not require transborder privacy protection clauses.

Sections 1 through 5 of this document provide a summary of the considerations involving ISAs while section 6 provides explanatory notes relating to these considerations.  Sections 1-5 are bookmarked so that the reader is easily linked to the explanatory notes. 

The advice contained herein should not be considered in isolation but in conjunction with all applicable federal laws, regulations, policies and guidelines.  In particular, issues related to sections 7 and 8 of the Canadian Charter of Rights and Freedoms should also  be taken into account.  Institutions are strongly encouraged to consult their departmental ATIP Coordinators, legal advisors and security experts to identify, review and consider all applicable laws and policies that may have an impact on privacy and security issues, prior to initiating any information sharing agreement involving personal information.

1.2 Definition of an Information Sharing Agreement

The Privacy Act does not state that agreements or arrangements for sharing personal information must be in writing.  However, it is recommended that, when sharing personal information, government institutions should prepare an Information Sharing Agreement (ISA) document, that is, a written record of understanding between government parties that outlines the terms and conditions under which personal information is shared between the parties.  "Information sharing" may mean that one party is disclosing information while the other party is collecting information.  It can also refer to situations where information is exchanged, that is, where both parties are disclosing and collecting information. 

An ISA can be a formal written agreement, protocol, arrangement or memorandum of understanding, an exchange of letters, or an international treaty or convention ratified by Canada.  From a legal perspective, an ISA may be legally binding at public international law (perhaps called a treaty or agreement) or it may be an instrument that is not binding at public international law (perhaps called an arrangement or a memorandum of understanding).  Since the title of the instrument does not determine whether it is legally binding or not, early and continuing consultation with legal experts in the Department of Foreign Affairs is important.  By consulting internal legal advisors and legal experts at the Department of Foreign Affairs and International Trade, institutions should be able to determine what type of ISA to prepare in a given situation and whether the ISA should be a legally-binding agreement.



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