Name tags for border officers not a violation

Complaint under the Privacy Act (the Act)

1. The complainant is one of many Canada Border Services Agency (CBSA) employees who allege that that their personal information is being used without their consent and contrary to the Act as the result of the implementation of a CBSA policy requiring border services officers (BSOs) to wear name tags that display the BSO's surname while on duty instead of badge number identifiers.
2. The complainants allege that this is an unreasonable invasion of their privacy and a violation of sections 7 and 8 of the Act, as it constitutes an improper use and disclosure of their personal information.

Background

3. In February 2011, CBSA advised all BSOs of the pending policy change requiring badge numbers to be replaced with name tags displaying employees' surnames. The CBSA explained that the reason for this policy change was part of the CBSA's commitment to service excellence and in an effort to improve the public's recognition of the CBSA. They also informed BSOs at that time that their uniforms would be updated in 2011 and that they would receive a new cap, a new uniform shoulder insignia.
4. On the implementation day of the CBSA's new name tag policy in December 2012, a group of BSOs notified their employer of their refusal to work under the relevant provisions of the Canada Labour Code by reason of their belief that a situation in the workplace constituted a danger to their health and safety.
5. A Health and Safety Officer (HSO) with Human Resources and Skills Development Canada (now renamed Employment and Social Development Canada) determined that no danger existed and so informed the employees' representative, the employer and all employees concerned.
6. However, the HSO sent CBSA a notice indicating that the Agency had contravened the Canada Labour Code as it had failed to take preventive measures to address the assessed hazard associated with the implementation of the new name tag policy.
7. The CBSA ultimately appealed that decision to the Occupational Health and Safety Tribunal of Canada (OHSTC). On July 3, 2014, the Tribunal rendered its decision and concluded that the direction that the HSO issued to the CBSA on April 22, 2013 is confirmed and it dismissed the appeal.
8. Concurrent to these workplace safety issues, a number of BSOs also filed a complaint with our Office under the Act to address whether the use of their surnames on a name tag constitutes a violation of the Act.

Summary of Investigation

Representations from complainants

9. The complainants allege that the CBSA's requirement that BSOs wear name tags in lieu of badge number identifiers makes them more vulnerable to violence and intimidation, and represents an invasion of privacy.
10. Specifically, a number of BSOs indicated that, in their regular day-to-day course of duty, they are exposed to threat from stalkers, mentally ill people, criminals, etc., and they fear that in today's electronic environment their surname displayed on the name tag can be used to determine their home address, telephone numbers and other personal information, thus allowing disgruntled travellers to retaliate against them and their families.
11. In their representations, the complainants provided details to our Office regarding some incidents that occurred between 2010 and 2013 and in which BSOs were apparently threatened or harassed by aggrieved travellers. This information was provided to demonstrate the kind of harm that could be caused to BSOs by individuals who can obtain personal information about BSOs and use it to harass or otherwise harm them and their families.
12. The complainants further explained that in 2009, because of similar safety issues, the Canada Employment and Immigration Union (CEIU), which represents Service Canada employees, successfully challenged Service Canada's name-tag policy. The Service Canada's policy that was requiring name tags to bear the employee's family name was withdrawn when the employer accepted the real threat to worker safety this requirement presented. They indicated that Service Canada staff working with the public is still required to wear a name tag that identifies them, but they can now choose to display only their first name if they wish. Other combinations are possible, including family name only, initial and family name or first and family names, but the choice rests with the individual staff member.
13. While all the complainants have alluded to possible security threats with the wearing of a name tag revealing their surname to the travelling public, many also consider this mandatory requirement under the revised CBSA Uniform Policy a Standards of Appearance to be an unreasonable invasion of their privacy.
14. Specifically, they do not believe that, in all circumstances, the names of government employees fall within the exception to the definition of personal information that is found in paragraph (j) of the definition of "personal information that is found under section 3 of the Act. For them, only in the specific situation described in subparagraph (j)(iv) of the definition, which covers the name of the individual on a document prepared by the individual in the course of employment, would the name of a federal government employee not be considered personal information for the purposes of sections 7, 8 and 26 of the Act.
15. The complainants are of the view that the names of BSOs as they appear on name tags constitute personal information as defined in paragraph (i) of the definition of "personal information" under the Act. This subsection states that the name of an individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual constitutes personal information for the purposes of section 3 of the Act.
16. For these reasons, the complainants believe that the change in the CBSA Uniform Policy and Standards of Appearance requiring display of the officer surname on a name tag worn in the course of employment constitutes an unreasonable invasion of personal privacy, which violates sections 7 and 8 of the Act by disclosing personal information without the employee's consent.
17. Some privacy concerns were also raised by the complainants because cell phones and most other personal communication/technological devices used by the travelling public are actually equipped with cameras, video and voice recording capability in addition to immediate Internet access. Thus, border services employees can unknowingly be recorded by these devices while interacting with people at points of entry into Canada. These recordings can then be immediately placed on the Internet, including social networking sites, for the world to view without CBSA employees' consent and these can be used in another context to negatively affect the employees in question.
18. They are also concerned that these changes to CBSA's policies were implemented by the Agency without the benefit of a Privacy Impact Assessment (PIA), which would have identified privacy risks and mitigation strategies.
19. Finally in their representations, the complainants are also asking the Privacy Commissioner to take into account the jurisprudence that was set on August 2, 2006, by the Information and Privacy Commissioner of the Province of Prince Edward Island (PEI) who found that the Head of the PEI Department of Health violated Part II of the Freedom of Information and Protection of Privacy Act (FOIPP Act) of PEI by requiring an employee to wear a name tag during working hours which stated her full name.

Representations from the CBSA

20. In its representations to our Office, the CBSA stated that, from its perspective, personalized name tags for uniformed officers reflect its commitment to service excellence and reinforce the professionalism and integrity for which CBSA officers are known. The CBSA is confident that its position supports the public's perception that an officer with a name tag instead of a badge number is more approachable and accountable for his or her actions.
21. The CBSA confirmed that, as a result of its Change Agenda and Branding Initiative, BSO uniforms have been updated through the issuance of a new uniform baseball cap and shoulder insignia. These updates to the uniform include a change in policy where the name tag replaced the badge number identifier with respect to officer identification. Personalized name tags have been issued to all uniformed personnel, and include the initial and last name for the rank of superintendent and above; and the last name only for all other positions.
22. With reference to the use and disclosure of the surname of a BSO on a name tag worn by the employee in the course of employment, the CBSA claimed that the name of a government employee falls within the exception to personal information found in paragraph (j) of the definition of "personal information" under Privacy Act. As such, the CBSA is of the view that this information is not subject to the use and disclosure provisions of the Act, namely sections 7 and 8. In support of its position, the Agency stated that, in accordance with the requirements of the Act, its Access to Information and Privacy (ATIP) Division has always released the name of BSO officers when requested.
23. According to the CBSA, the first experience that many people have with Canada happens at a point of entry, interacting with a BSO. The CBSA is of the view that, in many ways, this makes BSOs the first face of Canada. A clear brand and a name tag now formally identify CBSA officers as helpful and courteous professionals, committed to serving and protecting the Canadian public. According to the CBSA, this will leave a lasting and positive impression of both the CBSA and Canada.
24. Additionally, the CBSA explained that it has aligned its policy with those of its partners, such as the Royal Canadian Mounted Police, the Canadian Armed Forces, Correctional Services Canada and the United States Customs and Border Protection, whose frontline officers all wear name tags. The CBSA further stated that, as demonstrated by these law enforcement organizations, the wearing of name tags does not pose a risk to personal safety. Moreover, the Agency claims that since its implementation of name tags in December 2012, all security incidents reported by BSOs that relate to the wearing of name tags were all unfounded.
25. TheCBSA added that officer safety is its priority and well established policies and procedures are in place in the event of an incident. Among other things, these policies and procedures state that:
    1. The CBSA is committed to protecting, supporting and assisting its employees and their families where there has been any act of abuse, threat, stalking and assault directed against them or their property in the performance of their duties or as a direct result of their duties.
    2. The Corporate Security and Internal Affairs Division (CSIAD) will cover incidents of verbal and written abuse and physical threats or stalking and assaults while the employees are performing their duties and when they are not performing their duties, or when the incidents arise as a direct result of their employment with the CBSA, by being the liaison with the police force and by providing advice and guidance.
    3. The CBSA has measures in place to ensure the physical and mental well-being of employees and their families who have been the subject of abuse, threats, stalking and assaults. One of these measures is the Employee Assistance Program (EAP).
    4. In any difficult or dangerous situation, the safety of employees must be the first priority. Employees must remove themselves from any threatening situation. Employees must protect themselves at all times, ensuring their own safety and that of their families, as well as the safety of their fellow employees and clients.
    5. Any incidents of verbal and written abuse; verbal, written and physical threats; obstruction or stalking and assaults that occur while the employees are performing their duties or when they are not performing their duties, but as a direct result of their employment with the CBSA, must be reported to the manager or the Regional Security Officer, or to CSIAD at Headquarters.
26. Based on the foregoing, the CBSA remains confident that officer name tags are not known to pose a risk to the health and safety of its officers. Specifically, the CBSA explained that each work refusal filed by BSOs on the name-tag requirement, since its implementation in December 2012, was investigated by a HSO, who concluded that there was no existing danger. According to the CBSA, the ruling made pursuant to the Canada Labour Code Part II recognized that wearing a name tag does not place an employee in danger.
27. In its representations, the CBSA concluded that not only is the name-tag policy consistent with best practices in place in a number of reputable law enforcement agencies, it in no way constitutes a breach of employee privacy nor does it impact the health and safety of officers.

Application

28. At issue in this complaint is whether the CBSA's requirement that BSOs display their surname (including the initial of their first name for the rank of superintendent and above) on a name tag during the course of their duties violates the provisions of the Act.
29. While the complainants have also raised a number of workplace safety issues we are of the view that these questions are better addressed through the internal complaint resolution process that exists under the Canada Labour Code. Our analysis and findings therefore only relate to whether the CBSA's policy violates the provisions of the Act.
30. In making our determination, we considered the definition of "personal information" under section 3, 7 and 8 of the Act.
31. The term "personal information" is defined under Section 3 of the Act as information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing: information relating to race, national or ethnic origin, colour, religion, age, marital status, education, medical, criminal or employment history, financial transactions, identifying numbers, fingerprints, blood type, personal opinions, etc.
32. In particular, we considered paragraph (i) of the definition of personal information, which deals expressly with an individual's name and makes the name of the individual the personal information of the latter in one of two situations: first, where the name appears with other personal information relating to the individual; and second, where disclosure of the name would reveal information about the individual.
33. We also considered paragraph (j) of the definition of personal information, which provides that, for the purposes of sections 7, 8 and 26 of the Act and section 19 of the Access to Information Act, certain information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual is specifically excluded from the definition of "personal information". Examples of information covered by this exception include:
    1. the fact of being or having been an officer or employee of a government institution;
    2. the title, business address and business telephone number of the individual;
    3. the classification, salary range and responsibilities of the position held by the individual;
    4. the names of the individual on a document prepared by the individual in the course of employment with a government institution; and
    5. the personal opinions or views of the individual given in the course of employment with a government institution.
34. Section 7 of the Act prohibits the use of personal information under the control of a government institution unless the individual about whom the information pertains consents to its use within the institution. There are exceptions to the prohibition against use without consent outlined under section 7 of the Act, which reads:

    7. Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except

    (a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent that purpose; or

    (b) for a purpose for which the information may be disclosed to the institution under subsection 8(2).

35. Section 8 of the Act prohibits the disclosure of personal information unless the individual about whom the information pertains consents to its disclosure. Exceptions to the prohibition against disclosure without consent are outlined in subsection 8(2) of the Act, namely paragraph 8(2)(a). Paragraph 8(2)(a) gives government institutions the discretion to disclose personal information where it is necessary to accomplish the purpose for which the information was obtained or compiled or for a use consistent with that purpose.

Analysis

Is the last name of a BSO (including the initial of a first name for the rank of superintendent and above) as displayed on a name tag personal information as defined under section 3 of the Act?

36. After having carefully taken into consideration the representations of the parties, and the requirements of the Act, we have found that an employee's surname as displayed on a name tag worn in the course of employment is information about an identifiable individual, particularly where it appears, or can be combined with, other personal information about the individual, such as physical appearance and speech.
37. That being said, the Act also provides that information that would otherwise be information about an identifiable individual will not be considered as "personal information" for the purpose of sections 7, 8, or 26 of the Act where it falls under the circumstances set out under paragraphs (j) to (m) of the definition.
38. In the context of this complaint, we are of the view that the surname of an employee displayed on a name tag worn in the course of employment falls within the exception provided in paragraph (j) of the definition of personal information under section 3 of the Act.
39. In our opinion, the surname on a name tag is information that relates to the position of the individual in question. That is, it relates to the fact that they are BSOs - employees representing the CBSA at the front lines.
40. It is true that subparagraph (j)(iv) identifies as a specific example the name of the individual on a document prepared by the individual in the course of employment. However, as the Supreme Court of Canada has clarified, subparagraphs (i) to (v) consist of an non-exaustive list of examples as to what falls under paragraph (j) - the true test is whether the information in question relates to the position or the function of the individual.
41. Furthermore, the Supreme Court of Canada has made it clear that the purpose of the paragraph (j) of the definition of "personal information" is to ensure that the state and its agents are held accountable to the general public. The court has held that that paragraph (j) applies in respect of information that is related to the general characteristics associated with the position or functions held by an officer of employee of a federal institution.
42. In line with the jurisprudence on paragraph (j) of the definition of "personal information", we are of the view that displaying the surnames of CBSA employees on name tags is related to the purpose of holding the CBSA accountable for the actions of its employees in the course of their front-line duties.
43. This is not to say that an employee's name will in all circumstances fall under paragraph (j) of the definition - it is when the name viewed in context relates first and foremost to the duties and functions of the employee in question. For example, an employee's name associated with that employee's personal performance and competency in a recorded format would fall outside the scope of paragraph (j), and be considered "personal information" for the purposes of section 3 of the Act.

Findings

44. Based on the foregoing, we find that the surname of a CBSA BSO (or initial and surname for the rank of superintendent and above) as displayed on a name tag worn by that BSO in the course of their employment relates to their duties and functions as BSOs, and therefore, falls under paragraph (j) of the definition of the personal information under section 3 of the Act. Accordingly, such information is therefore not personal information for the purposes of sections 7 and 8 of the Act.
45. Accordingly, we conclude that these complaints are not well founded.

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