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Administrators looking to use personal info must consult privacy laws

A Court of Queen’s Bench of Alberta decision highlights the fact that school administrators should consult privacy law experts before using documents containing personal information, says Windsor education lawyer Bryce Chandler.

Calgary Board of Education v Alberta (Office of the Information and Privacy Commissioner), 2014 ABQB 189 (CanLII) deals with the use of personal information held by a university, and the use of that personal information in an unrelated lawsuit.

An employee of the Calgary Board of Education was the subject of several harassment complaints in 2003, and during the course of an investigation, information about the matters was collected and retained, despite the fact that the issues were subsequently settled between the parties.

In 2007, the employee was called as a witness in an unrelated proceeding at a Board of Reference hearing that addressed teacher terminations and suspensions. He was not originally a party to proceeding, says the decision.

During the hearing, the school board attempted to use information collected during the 2003 harassment complaints to undermine the man’s credibility. The Board of Reference ordered disclosure of all such documents to the parties involved at the hearing, says the ruling.

The employee sought to prevent the use of the information by filing a complaint with the Office of the Information and Privacy Commissioner (IPC) on the basis that the school board had wrongfully used and disclosed his personal information and, further, that the board failed to protect his personal information contrary to Alberta's Freedom of Information and Protection of Privacy Act.

The adjudicator agreed with the employee on the information being wrongfully used, but disagreed on the point that the board failed to protect the information.

The school board then applied to the Alberta Court of Queen's Bench to judicially review the adjudicator’s decision, and after considering several issues, the court held the adjudicator was reasonable in concluding that the board had used the man’s personal information in contravention of the act.

“The school board used the information to challenge the man’s credibility; this was not a purpose, or a consistent use, for which his personal information was collected,” says Chandler, partner with Shibley Righton LLP. “Although the language in Alberta's Freedom of Information and Protection of Privacy Act is not the same as in other provinces, this decision discusses use of information where non-parties are involved.”

The man was not a party to the 2007 hearing, notes Chandler, and while parties to the hearing are normally required to disclose relevant information, there was no such requirement in this case regarding the employee.

“Indeed, the school board wished to use his previously collected, and otherwise unrelated, personal information to discredit him and bolster its case,” says Chandler. “This isn't to say that such information may never be used; in fact, the court commented that the proper procedure would have been for the school board to apply to the IPC to allow disclosure.”

The important message coming from the decision, adds Chandler, “is that school administrators should consult with individuals thoroughly versed in privacy law prior to using documents containing personal information.”

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