From the Office of the Information & Privacy Commissioner of British Columbia, this press release below. This is the second time in the past few months where we have seen an entity really fight an order to release a forensics report on a breach. In the U.S., we saw a court order Capital One in May to release the report Mandiant had prepared for them to plaintiffs suing them over the breach. While Capital One argued that it was covered by work product doctrine, the court held that Capital One did not specifically order that investigation and report in response to the breach, and hence it was not properly a legal expense covered by work product.
We can all understand why an entity would want to protect any such reports from discovery in litigation, right? But the take-home from the Capital One decision for U.S. entities seems to be that lawyers must order these investigations and reports as clearly tagged legal expenses in response to a breach.
But we also have a case in British Columbia where a breached entity, LifeLabs, also fought an order to release an investigative report into a breach and a release of a report that was based on some of the information found by investigators. In December, LifeLabs revealed that it was hacked in an October ransomware incident that impacted 15 million patients. LifeLabs paid the ransom, but privacy commissioners were not satisfied with the lack of details they got from LifeLabs about the incident or types of patient data involved. In February, LifeLabs challenged the privacy commissioner’s direction to provide a copy of the report Crowdstrike had prepared for them, claiming solicitor-client privilege. In June, the commissioner’s offices of Ontario and B.C. issued a statement about their findings but noted that release of their actual report was being held up because LifeLabs had challenged the release of the report because it contained information based on privileged communications. And now… this:
VICTORIA – Tuesday, July 28, 2020 –On June 25, the Information and Privacy Commissioners of Ontario and British Columbia issued a joint investigation report into the company’s 2019 privacy breach involving millions of its customers.
LifeLabs has since confirmed that they will comply with all of the commissioners’ orders and the recommendation in the report. The commissioners’ offices will continue to actively monitor the company’s progress towards full compliance.
Commissioners Patricia Kosseim (Ontario) and Michael McEvoy (B.C.) maintain the view that the public release of the joint investigative report is vital to bringing to light the underlying causes of the privacy breach and rebuilding public trust by providing a transparent account of their investigation and findings.
However, LifeLabs has decided to seek a court order preventing the public release of the commissioners’ joint investigation report claiming that some of the information it provided to the commissioners is privileged or otherwise confidential, a claim which the commissioners take issue with. As this matter is now before the courts, our offices will not be providing any further comment at this time.
Last month, both offices released a summary of their investigation into the breach. It found that the company was in violation of privacy laws and failed to take the necessary precautions to protect the personal health information of millions of Canadians.
So there is no court ruling yet and we will need to wait and see on that. But we do want companies/entities to thoroughly investigate breaches in the hopes that such investigations will help them identify holes in security that they can then address to prevent future breaches of the same kind. But will they invest in such investigations if they are then ordered to provide the results to regulators or those who could penalize them financially or sue them?
I hate the word “balance,” because in any “balancing” act, privacy always loses. So what’s the “solution” to this? Should entities be required to conduct post-breach forensic investigations and required to provide some of the findings to regulators? What about to the public? I can already hear the battle cries….