One of the hot topics in privacy policy at the moment is the question of whether there should be a right to be forgotten. Should, for example, an indiscretion captured in a photo and shared via social media be purged?
The Canadian Civil Liberties Association (CCLA) has weighed into the debate by tackling a specific and pressing issue: The retention and disclosure of non-conviction records in police background checks. The CCLA's recent report is provocatively titled "Presumption of Guilt?"
The CCLA notes that most people who interact with police will never be convicted of a crime. These people may be victims of crime, be witnesses, or be targets of an investigation or a "person of interest". In some cases, a person is simply has an undiagnosed or untreated mental health need and law enforcement officers are first responders. Records of these interactions may be created in each of these cases. In addition, of course, records will be created in situations where the police lay charges that are subsequently withdrawn or individuals are acquitted of an offence.
In the case of adults, these varied "non-conviction" records are not subject to legal requirements for destruction. CCLA comments that Criminal Records Act provides for removal of records of absolute and conditional discharges from RCMP databases within relatively short time frames. However, there is no requirement with respect to other types of non-conviction records. Moreover, CCLA concludes in its Alberta investigation that records of absolute and conditional discharges of adults as well as other non-conviction records of adults may continue to be maintained in provincial databases for lengthy periods of time and possibly indefinitely. (There are greater restrictions on the retention of youth criminal records.)
The CCLA is calling for reform given the increasing use of criminal background checks in employment. The CCLA is concerned that these records may be misleading without sufficient context and be unfair to the subject of the records who may not be in a position to refuse to disclose those records. To address these concerns, the CCLA has outlined seven recommendations which are reproduced below:
1. Non-conviction records should be regularly reviewed and destroyed in the overwhelming majority of cases.
2. Non-conviction records should be retained for inclusion in a police background check only in exceptional cases where police believe that doing so is necessary to reduce immediate public safety threats. The decision to treat a case as an exceptional one should be done at the time that the non-conviction record is created; i.e., immediately after the charge is dismissed, withdrawn or otherwise resolved by way of a non-conviction.
3. Where the government requests that a decision be made whether to retain a non-conviction record, the affected individual should be notified and provided with a right to make submissions.
4. If it is decided that retention is appropriate in a given case, the affected individual should have a right of appeal in front of an independent adjudicator.
5. Where non-conviction records are retained, they should be disclosed only in relation to certain employment or volunteer positions.
6. Proper monitoring mechanisms regarding the use and impact of all forms of police background checks should be put in place, including adequate data collection and public reporting.
7. Provincial human rights legislation should protect individuals from unwarranted discrimination on the basis of non-conviction disposition records.
In the meantime, employers should be cautious in their use of background checks to ensure that they are adhering to their legal obligations. For more information regarding the law related to the use of background checks in employment, readers might consider checking out " The HR Manager's Guide to Background Checks and Pre-Employment Testing" authored by Adrian Miedema (FMC lawyer) and Christina Hall.
For more information, visit our Data Governance Law blog at www.datagovernancelaw.com
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