School boards everywhere are faced with the difficult task of balancing the safety of students, staff, volunteers and community members on school property with respect for privacy and personal information. Recent decisions from Ontario emphasize the need for school boards to develop policies and procedures with respect to video surveillance that comply with applicable legislation and then carefully follow them.
Recently, two decisions emanating from two different legal contexts were released with respect to video surveillance at schools. The first decision relates to a grievance brought by a school custodian who was terminated after being caught on camera smoking marijuana while on duty in the Ottawa-Carlton District School Board (the "Ottawa-Carlton Board"). The second decision arises from a privacy complaint brought before Ontario's Information and Privacy Commissioner (the "Commissioner") by a parent whose child attended high school St. Thomas Aquinas Catholic School (the "School"), operated by the Halton Catholic District School Board (the "Halton Catholic Board").
OTTAWA-CARLTON DISTRICT SCHOOL BOARD GRIEVANCE
An arbitration award dated May 19, 2015 addressed video surveillance in the labour context. In Ottawa-Carlton District School Board OSSTF, District 25 Plant Support Staff 1, the grievor was a custodian for a public school who was terminated after being caught on video surveillance smoking marijuana beside the school during a shift. He was wearing his uniform identifying him as an employee of the Ottawa- Carlton Board. The custodian had received training about drug use and smoking which put him on notice that the Ottawa-Carleton Board had a "zero tolerance" policy for the use of controlled or restricted drugs. The Ottawa-Carleton Board also had an extensive policy and procedure regarding video surveillance.
In reaching a decision, Arbitrator Paula Knopf examined two questions: (1) In what situations surveillance may be undertaken; and (2) Whether or not the Ottawa-Carleton Board's actions were in accordance with jurisprudence in the area. The arbitrator stated that there must be a balancing of an employee's right to privacy with the employer's legitimate operational interests. Ultimately, whether video surveillance will be admitted as evidence in a labour arbitration depends on the following: " Was it reasonable, in all the circumstances, to request surveillance?
- Was the surveillance conducted in a reasonable manner?
- Were other, less intrusive, alternatives open to the employer to obtain the evidence sought?
The arbitrator began by stating that the custodian had no reasonable expectation of privacy at the time he was recorded smoking marijuana given, for example, his location in a public space next to the school where passers-by could observe him. The arbitrator further concluded that the Ottawa- Carleton Board had reason to request surveillance because of credible reports that employees were smoking marijuana on duty and on school premises. Specifically, the Board received a report from an Acting Evening Supervisor in the facilities department, Michael Davidson, stating that he had answered his cell phone's ring and then overheard a conversation between one of the Board's evening custodians at Barrhaven Public School and another unidentified man. The phone call was believed to be a "pocket dial", but Mr. Davidson continued to listen to the conversation and overheard the custodian saying there would not be enough drugs that night and they would be "on their own." Mr. Davidson assumed that they may be talking about something that might be happening during work hours that evening and reported it to his supervisor.
In addition, the Board received a request from a "floater" custodian that he not be reassigned to Barrhaven Public School because he had previously been invited to participate in the use of marijuana at that site by other custodians. The "floater" custodian described the use of marijuana at the school as a "ritual" and expressed concern about his job. He also gave specifics of times and locations where marijuana was being used regularly by custodial staff, both on and adjacent to the school property.
The arbitrator stated that "even if there was an infringement on the employees' privacy, it did not do so to such an unreasonable degree that the surveillance would warrant a label of impropriety..." Therefore, the video surveillance was generally conducted in a reasonable manner, especially taking into account that it lasted for only three days and the video recording was only taken of the employees smoking marijuana, but no one else. Finally, the arbitrator concluded that less intrusive alternatives were sought, but were ultimately unsuccessful. For example, after reporting what he had overhead on the phone, Mr. Davidson was instructed to go onto the roof of the high school approximately half a kilometer away from Barrhaven Public School to see if he could get a clear view of the school or adjacent grounds. However, Mr. Davidson reported that he could not find a good vantage point and, as such, this matter of surveillance was insufficient.
Second, the arbitrator examined whether video surveillance evidence should be admissible at a hearing. In doing so, the arbitrator questioned whether the Ottawa-Carleton Board's use of video surveillance was in accordance with its own video surveillance policy and procedures. Namely, the arbitrator raised concern that the rationale for conducting video surveillance was not properly documented and a third party provider was not made aware of or required to comply with the Ottawa-Carleton Board's own privacy rules. The arbitrator held that these were minor procedurals errors, which caused no serious prejudice to the employee and, therefore, the evidence was not ruled inadmissible.
HALTON CATHOLIC DISTRICT SCHOOL BOARD PRIVACY COMPLAINT
In a decision dated March 11, 2015, the Commissioner considered whether the Halton Catholic Board's video surveillance system accorded with the privacy protection rules set out in the Municipal Freedom of Information and Protection of Privacy Act (the "Act").2 Among other things, the Act sets out rules relating to the collection, notice, use, disclosure, security, and retention of personal information. The Commissioner's findings are outlined in a Privacy Compliance Report3, which also relied on the Commissioner's Guidelines for Using Surveillance Cameras in Schools (the "Guidelines").4
The Commissioner was asked to determine if the Halton Catholic Board's video surveillance constituted a breach of subsection 28(2) of the Act. Subsection 28(2) of the Act states:
No person shall collect personal information on behalf of an institution unless the collection is expressly authorized by statute, used for the purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity.
First, the Commissioner determined that the recorded images of identifiable individuals collected through the video surveillance cameras located at the School constituted "personal information" as defined by the Act.
Second, the Halton Catholic Board argued that the video surveillance was "necessary to the proper administration of a lawfully authorized activity." Specifically, the Halton Catholic Board argued, and the Commissioner agreed, that the Halton Catholic Board was lawfully authorized by the Education Act to operate the school, including responsibility for the safety and security of students and property. The Commissioner emphasized, however, that the video surveillance must be necessary and not merely helpful to the proper administration of the school. On this point, the Commissioner held that the Halton Catholic Board did not meet its obligation to ensure the video surveillance was necessary for several reasons, including:
- The Halton Catholic Board did not have measures in place to adequately evaluate the necessity and utility of the video surveillance system on an ongoing basis; and
- The implementation of the video surveillance system was pre-emptive as there was little indication before the Commissioner that there were demonstrative security issues at the school prior to the installation of the video cameras.
Finally, the Commissioner examined several additional issues related to the Halton Catholic Board's obligations under the Act. In doing so, it made the following recommendations:
- That the Halton Catholic Board conduct an assessment of the video surveillance system at the school in a manner consistent with the Act, the Halton Catholic Board's video surveillance policy and the Guidelines and then ensure ongoing compliance;
- That the Halton Catholic Board explore and, if feasible, implement measures that automatically record user activity with respect to the access and use of the video surveillance system instead of relying on user self-reporting;
- That the Halton Catholic Board undertake to have all relevant staff and service providers sign a confidentiality agreement with regards to access to the video surveillance system; and
- That the Halton Catholic Board revise its Policies, Procedures and Guidelines to reflect the specific timelines for retaining information from the video surveillance system that it has used.
Both decisions confirm the importance of effective policies and procedures on video surveillance. In addition, they emphasize the importance of ensuring that such policies and procedures are followed in practice. The Commissioner's Guidelines provide a useful tool for school boards seeking to install video surveillance or conduct a privacy impact assessment and may be consulted when developing policies and procedures.
School boards should be aware of the privacy implications of engaging in video surveillance on school property, and should always consider the reasonableness of the surveillance and whether there are alternative means of achieving a safe and secure environment for students, teachers, staff, parents and community members.
1 Ottawa-Carleton District School Board v Ontario Secondary Teachers' Federation, District 25 Plant Support Staff, 2015 CanLII 27389 (ONLA).
2 R.S.O. 1990, c. M.56.
3 Halton Catholic District School Board (Re), 2015 CanLII 13372, Privacy Complaint MC13-46 (IPC).
4 A copy of the Guidelines can be found at: https://www.ipc.on.ca/english/Resources/Discussion-Papers/Discussion-Papers- Summary/?id=412.
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