The absurdities of Fortress Privacy
Privacy can threaten the public good
Basil Borutski brutally murdered three women one morning in 2015, in Renfrew County, Ontario. He was convicted and sent to prison, where he died. I wrote a book about the case.
The above image of Borutski was taken by the Ontario Provincial Police (OPP) on the day of his arrest. They released it publicly at the time. It was reproduced widely by news media. You can easily find it on the Internet.
I asked the OPP informally for a copy of the original image for my book. Their surprising answer to me was a firm “no.” Handing over the image would be an unwarranted invasion of Borutski’s privacy, they said.
Huh?
I then asked for the image under Ontario’s freedom-of-information law. Again, the OPP withheld the image to safeguard Borutski’s privacy. I complained to the province’s information commissioner about the OPP’s decision.
This week, I got a final ruling. The commissioner’s office backed the OPP, agreeing that releasing the photo to me would violate Borutski’s privacy. You can read the ruling here:
Borutski died last year, but the office said that his privacy rights extend 30 years beyond his death. So I can apply again for the image in 2054.
Welcome to the weird and wacky world of privacy in Canada.
Why wouldn’t I simply download the Borutski image from the web for my book, you might ask? Mostly because I needed a copy of the OPP original, without any manipulations, such as cropping or colour adjustment. Also, copyright becomes blurry.
I ran into a privacy brick wall two more times in my research.
Borutski died on March 28, 2024, at Millhaven Institution in Bath, Ont., while serving a life sentence for the three murders. Corrections Canada announced his death five days later, citing “apparent natural causes.”
Under the Access to Information Act, I asked for internal documents related to the death, in order to learn the circumstances and official cause. Was it suicide? An accident? Something sinister?
Corrections Canada identified 158 pages as relevant to my request, but released only six pages to me. These were all heavily redacted, and useless.
The reason the information was withheld? To protect Borutski’s privacy. I appealed to the Information Commissioner of Canada, and promptly lost. Under federal law, privacy is protected for 20 years after an individual’s death. So I can apply again in 2044.
Another encounter with Fortress Privacy involved the 2022 coroner’s inquest into the Borutski murders. The inquest in Pembroke, Ont., was broadcast live over the web (and was recorded), in addition to being open to the public.
Months later, I asked under Ontario’s freedom-of-information (FOI) law for select recordings of witness testimony. I was refused. The office said releasing the audio-video would violate the witnesses’ privacy rights.
I complained to the province’s information commissioner, and was told I didn’t have a leg to stand on. The FOI law required the coroner to withhold the material, even though the testimony had been public and was even webcast.
But here I met with some success. I was advised that if I asked the coroner’s office informally for the recordings, then the privacy provisions of the FOI law would not apply. So I dropped my complaint, asked informally, and received the material I needed.
I learned that the public testimony of witnesses is considered private only if I request the recordings under the freedom-of-information law. If I dispensed with the law, and proceeded informally, their privacy need not be protected.
Huh?
These three instances highlight the sometimes bizarre outcomes that can ensue when privacy eclipses transparency. We need to rethink our often-wonky privacy safeguards in Canada, and inject some common sense and balance for the public good.
And as I have written previously, reform is especially urgent in cases where abusers of women, such as Borutski, enjoy privacy protections during their predatory paths that prevent their victims from protecting themselves. The unchallenged supremacy of privacy is not just ludicrous. It can also threaten lives.
Good piece, Dean. While the public thinks it won a fight to have the right to privacy, it wasn't much of a battle. The biggest beneficiaries of privacy laws are government, its institutions, corporations and criminals who can keep secrets that otherwise would be in the public interest. Paul Palango
Great article. No one can be against the principle of protecting personal privacy. But the principle is not meant to be absolute. How the principle is applied in practice has to depend on the circumstances of a particular case, including the sensitivity of the information involved. The timing of the release of information, later release may often reduce the sensitivity of the information and the privacy consequences. Fear of violating vague privacy rules and norms leading to fines and/or entanglement in controversy is causing public officials to take the safe route of denial.
Looking forward to seeing your book. When and what title?