Freedom of Information & Privacy Law
Submitted by Section Co-Chair, Monica Muller
Summary of Meetings
Number of Meetings Held: 6
November 14, 2013
Guest Speakers: Volker Helmuth, Manager, Information Services Section, Delta Police Department, and Bradley Weldon, Policy Analyst, Office of the Information and Privacy Commissioner
Meeting Title/Topic: Get the Facts about Criminal Records Checks and Police Information Checks: What are the types of checks offered by police? What are the privacy considerations for employers, landlords and volunteer organizations? Changes to the Criminal Records Review Act
Synopsis: The discussion addressed the issue of Police Information and Criminal Records Checks as part of the pre-employment screening process. The discussion focused on the three types of information checks currently available, whether through the police or through private sector organizations (Commissionaires, BackCheck), and on the alternative proposed by one of our guest speakers, Volker Helmuth. Of note, none of these schemes is without its privacy related concerns.
The three screening types currently in use are:
1. A job candidate consents to the release of information and information is released directly to the employer without ever passing through the possession of the candidate. The employer receives results for indicating, by way of check box, whether the check revealed any information with respect to:
i. actual convictions;
ii. current charges;
iii. results of discharged convictions; and
iv. anything locally recorded
This model does not provide context, details or disclosure with respect to specific risks. It also tends to include a broad range of findings including investigations that did not result in a recommendation to the Crown that charges be laid, where the Crown opted not to lay a charge, and closed investigations.
On receipt of the checkbox, an employer would contact the relevant police department, via telephone, and verbally confirm the substance of the information. This discussion and disclosure is undocumented and of nebulous scope.
This type of screening is no longer de rigueur.
2. In response to the high risks to police departments in the first model and on the initiative of the VPD a second model of screening was developed. This second model sees two major changes:
i. results go to the candidate and not the potential employer; and
ii. results include summary specifics which are listed and detailed as: the offence, the role of the candidate, the date of the offence, and this disposition.
While an improvement this model may still be overly broad as there is no assessment or restriction on the basis of what is or might be reasonable, given the potential employer's need for the information (ss. 11 and 7.2 of PIPA).
3. The third model is that used by the private sector and provides information with respect to convictions and charges, only. This system, as it is driven by access to public records, is flawed for a number of reasons, including:
i. it does not include summary maters such as fraud;
ii. the database is 300,000 records behind and therefore may not disclose relevant recent and current convictions and charges
iii. indictable offences will not be included if the police failed to fingerprint the individual
4. Helmut Volker offered a fourth option. This fourth option revolves around altering the request method to require the employer to identify the "risk category" as one or all of: violence related offences; theft and/or fraud related offences, drug and/or alcohol related offences; and/or sexual offences. The goal of this method is to create a mechanism whereby employers apply some analysis of what they reasonable require to assess the candidate to a Police Information Check request.
The issue remains that the employers request may not be reasonable under the circumstances; even if it is informed by one of the four "risk categories". The OIPC continues to review and monitor the question of Police Information Checks in the employment context.
January 28, 2014
Guest Speakers: Neil L. Cobb and Elizabeth Pedersen Lewis, Cobb St. Pierre Lewis
Meeting Title/Topic: Supreme Court of Canada decision R. v. Vu, 2013 SCC 60
Synopsis: The speakers addressed the privacy implications of the recent Supreme Court of Canada decision R. v. Vu, 2013 SCC 60, regarding whether a search warrant authorized police search of a home computer and cellular phone.
March 12, 2014
Guest Speaker: Steven Tam, General Legal Counsel & Chief Privacy Officer, Vancouver Coastal Health
Meeting Title/Topic: General Health Information Sharing Agreement (GHISA)
Synopsis: Steven Tam explained how the GHISA, an agreement between all 6 BC Health Authorities and the Ministry of Health, works to support the healthcare and privacy needs of the health sector in BC. The GHISA creates a legal, policy and governance framework for the sharing of health information within the public healthcare system in BC. It is intended to streamline the legal and privacy documentation required to support authorized information sharing and create a trusted network amongst the Health Authorities and the Ministry of Health through the development of common policies, processes and standards for the management and protection of patient health information.
April 10, 2014
Guest Speaker: Lindsay Lyster, Moore Edgar Lyster, and Nitya Iyer, Lovett Westmacott
Meeting Title/Topic: Supreme Court of Canada’s decision in Information and Privacy Commissioner of Alberta v. UFCW
Synopsis: This was a joint Section meeting held with the Labour Law Section. Guest speakers Lindsay Lyster and Nitya Iyer discussed the recent Supreme Court of Canada decision in Information and Privacy Commissioner of Alberta v. UFCW and implications of the decision for labour disputes and privacy legislation in BC. Ms. Iyer and Ms. Lyster were both counsel for interveners in this case. Ms. Iyer was counsel for the Information and Privacy Commissioner of British Columbia. Ms. Lyster was counsel for the British Columbia Civil Liberties Association.
May 9, 2014
Guest Speaker: Caitlin Lemiski, Policy Analyst, Office of the Information and Privacy Commissioner, and Deanna Brummitt, Industry Lead, Health Employers Association of BC
Meeting Title/Topic: What is Personal Information?
Synopsis: When is employee information (work patterns, location, etc.) personal information? Speakers discussed recent cases about this issue, including the OIPC’s line of elevator cases.
June 10, 2014
Guest Speakers: Elizabeth Denham, Information and Privacy Commissioner for British Columbia, and Michael McEvoy, Information and Privacy Deputy Commissioner for British Columbia
Meeting Title/Topic: News and Views from BC’s Information and Privacy Commissioner
Synopsis: The Commissioner spoke about topics her office has recently been focused on, including Bill C-13, the federal government’s cyberbullying legislation, the OIPC's investigation of police information checks, the OIPC report on Health Information Legislative Reform, and the Commissioner's submissions to the PIPA Review Committee. The Deputy Commissioner discussed recent cases of significance in the area of access to information, including the Joe Doe SCC ruling.
Reports or Resolutions prepared by the Section
February 21, 2014 Section Letter to OIPC re Police Information Checks.
Comments and Observations of the Co-Chair
There were many interesting developments in privacy law over the last year, including a number of Supreme Court of Canada cases with privacy implications. The Section was quite active keeping up with these developments, with 6 meetings over the course of the year. The Section also provided a letter to the OIPC on privacy implications of police information checks for the OIPC's report on this issue. Next year promises to be an equally interesting and active year for the Section, with an opportunity to make submissions to the Special Committee to review the BC Personal Information Protection Act.