PIPEDA Case Summary #2004-265

Video cameras in the workplace

[subsections 13(2), 5(3); Principles 4.3; paragraph 7(1)(b)]

Complaint

Two employees of a railway complained that the company used video cameras ordinarily used for operational purposes to determine that they were leaving company property during regular working hours. The company then imposed a disciplinary penalty against them for leaving work without permission.

Summary of Investigation

The manager responsible for the cameras spotted the two employees entering their car, went into his office and used the zoom capacity of the cameras to determine that the employees were going off-site. One of the two employees has grieved the discipline that was applied, and the matter has been referred to arbitration.

The cameras are normally used to monitor train movements and to inform crew members of train locations. The company and union agree that the cameras are needed for operational purposes.

The railway presented a number of arguments to defend its use of the cameras. Initially, it argued that the Commissioner should exercise her discretion under the Personal Information Protection and Electronic Documents Act (the Act) and choose not to issue a report of findings, since the matter is also being dealt with through the process of arbitration. In its final submissions, the company referred to a recent decision of the Federal Court, where the Court held that labour tribunals have exclusive jurisdiction over disputes arising out of collective agreements. It held therefore that the Office of the Privacy Commissioner does not have jurisdiction with respect to these complaints.

Notwithstanding this, the company noted that the Act allows organizations to collect, use and disclose information for purposes that a reasonable person would consider appropriate in the circumstances. It also asserted, however, that it was not actually collecting the complainants' personal information when its manager trained the camera on them, because the camera does not record. The company described the camera as a "visual aid" that allowed the manager to follow up on a concern that he had already identified without the use of a camera. As well, the company argued that the complainants had no reasonable expectation of privacy, given that the rail yard is busy with constant pedestrian traffic. According to the company, given that the complainants were behaving suspiciously on the day in question, a reasonable person would consider it appropriate to use the cameras as a visual aid to establish the direction in which the vehicle driven by one of the complainants was headed.

Should the Commissioner disagree with the company on this point and determine that the camera was collecting the personal information of the employees, it then argued that the consent of the complainants was not required since the company was investigating a breach of one of the conditions of employment. Similarly, consent was not required to use the information that had been collected, since the Act permits such usage where the information has been collected during the investigation of a breach of an agreement.

Findings

Issued February 19, 2004

Jurisdiction: The Assistant Privacy Commissioner stated that the Federal Court decision to which the company made reference is currently under appeal. She therefore concluded that she had jurisdiction to investigate these complaints.

Application: Subsection 5(3) states that an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances. Subsection 13(2) of the Act states that the Commissioner is not required to prepare a report if the Commissioner is satisfied that the complainant ought first to exhaust grievance or review procedures otherwise reasonably available. Principle 4.3 stipulates that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate. Paragraph 7(1)(b) states that an organization may collect personal information without consent only if it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement.

The Assistant Commissioner deliberated as follows:

• This Office has a lead role to play in determining whether organizations subject to the Act are adhering to it, and in educating them about their obligations, and the public about its rights, under the Act. As well, the present complaints raised issues that may set a precedent. She therefore declined to exercise the discretion that subsection 13(2) of the Act grants her, to not deal with these complaints.
• The Act does not restrict the definition of personal information to information that is recorded only. It clearly defines personal information to include any information about an identifiable individual. She therefore found that the cameras in question do collect the personal information of employees, and were used in this instance to collect the personal information of the complainants, the fact that they were leaving the yard during work hours.
• There is no question that the customary use of the cameras to enhance the safety of the workplace is appropriate, as per subsection 5(3) of the Act. The cameras were installed subsequent to a risk analysis, and their use is supported by both union and management.
• Turning to the issue of the appropriateness of using the cameras in the circumstances surrounding the complaints, the Assistant Commissioner noted that the company did not present any evidence that unauthorized absences from the workplace were a persistent problem with the complainants, or, for that matter, with other employees. The company did not present any evidence of other, less intrusive efforts it had taken to manage the problem of unauthorized absences. She concluded that a reasonable person would not consider it appropriate to use the cameras to manage a workplace performance issue. This use was contrary to subsection 5(3) of the Act, in the circumstances.
• Where an employer suspects that the relationship of trust has been broken, it can initiate the collection of information for the purposes of investigating that breach without the consent of the individual. The only evidence that the company presented to suggest a possible breach in the relationship of trust was the fact that the employees in question were entering a private vehicle on this occasion. The company admitted that the employees might have been leaving the site with the permission of their immediate supervisor, and that the manager who used the camera only determined after the fact that the employees left the work site without such permission. The Assistant Commissioner remarked that cameras are highly privacy intrusive, and cautioned that a decision to use them, even in the circumstances set out in Paragraph 7(1)(b), must be taken with great care and deliberation. Where there is a less intrusive method of achieving the same result, it should be the first avenue of recourse.

Accordingly, she concluded that the complaints were well-founded.

Further Considerations

The railway also raised the issue of the intent of the Act. Its purpose section sets out the context within which the Act is intended to establish rules to govern the collection, use and disclosure of personal information. It notes that we live in "an era in which technology increasingly facilitates the circulation and exchange of information." The Assistant Commissioner commented that the use of video cameras to monitor employee productivity or to manage the employer/employee relationship will have a chilling effect on employee morale, if it goes unchecked. She thinks it imperative to achieve an appropriate balance between the privacy rights of the individual and the informational needs of organizations. In her view, the framework set out above achieves that balance.