Records deemed “transitory” prematurely destroyed

Complaint under the Privacy Act (the Act)

  1. The complainant, a former Canadian Forces member in the training system, alleged that the Department of National Defence (DND ) contravened the retention and disposal provisions of the Act. Specifically, he claimed that DND prematurely destroyed the audio recording of his Progress Review Board (PRB) hearing and thus failed to retain it for a reasonable period in order to allow him access to the recording.

Background

  1. The complainant was enrolled in a Canadian Forces' training program. As a result of concerns about his performance in the program, the Commandant ordered that a Progress Review Board ("PRB") be convened.
  2. According to DND policy, a PRB hearing is held in order to make a recommendation regarding whether a student should be allowed to continue in a training program or be released from it. A decision to recommend termination of a student's training program may also effectively result in the termination of the student's employment with DND.
  3. The PRB is required to, among other things, review the student's progress, interview the student as well as additional personnel, and provide the student an opportunity to be heard and to "make findings and recommendations." The interviews with additional personnel are not to be conducted in the student's presence, but "their statements must be disclosed to the student." The student is required to be provided with an opportunity to "correct, interject, question, or provide counter arguments to the board's recommendations." Such comments are supposed to be incorporated into the PRB report, which is then forwarded to the Commandant for "final decision."
  4. The complainant's PRB heard from a number of witnesses familiar with the complainant's performance in the program, as well as the complainant. At the conclusion of the hearing the PRB recommended that the complainant cease training. After reviewing the evidence gathered by the PRB, the Commandant accepted the recommendation, and the complainant was removed from the training program, ending his employment with DND.
  5. The complainant notified DND in writing that he wanted to appeal the decision.

Summary of Investigation

  1. DND received the complainant's personal information request made under the Act for a copy of the audio recording of his PRB hearing. DND responded by informing the complainant that the recording no longer existed, as it was destroyed once minutes were drafted from it.
  2. During the course of the investigation, our Office reviewed the records that were prepared from the recording, as well as all representations provided by both the complainant and DND. We also conducted interviews with key witnesses, and reviewed pertinent DND, Library and Archives Canada (LAC) and Treasury Board Secretariat (TBS) policies / guidelines concerning record retention and transitory records. Additionally, our Office reviewed DND's available policy and procedures on conducting PRB hearings.
  3. According to DND, the audio recording was a "transitory" record, which was used by the secretary of the PRB to draft the minutes of the hearing. It was the minutes that constituted the official record of the proceeding. Once the minutes had been prepared the recording was erased — in this case, approximately ten days after the hearing had taken place, but also a day or so after the complainant advised DND that he intended to appeal.
  4. It is understood that the minutes are not a complete transcript of the PRB hearing, but rather only a summary. However, DND maintains that a copy of the minutes was provided to the complainant and that he signed them, indicating his agreement with their contents. The minutes also contained an "Interview Synopsis" for each witness, which were all signed by the witnesses concerned, except one where it would appear that the PRB Chairperson signed the statement. The complainant, for his part, maintains that the minutes are inaccurate or incomplete and do not reflect what was said during the hearing. His signature, he further maintains, only confirmed that he received the minutes — not that he agreed with them. In his view, DND should have been required to keep the audio recording, and that its failure to do so has negatively impacted his ability to challenge the PRB's recommendation.
  5. DND has procedures in place concerning various aspects of the collection, use, disclosure, retention and disposal of a student's personal information held on the individual's Officer Student File and other personal information banksFootnote 1. However, at the time of this investigation DND did not have any written policy or guidance regarding the retention and disposal of the PRB recording. Moreover, DND reported that it had retained some recordings of certain PRB hearings, while many others had been overwritten — the tapes having been used for the next proceeding. DND was unable to explain why some were kept and others were overwritten.

Applicable Sections of the Act

  1. In making our determination, we considered sections 3 and 6 of the Act, and section 4 of the Privacy Regulations.
  2. Section 3 of the Act defines personal information 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.
  3. Section 6(1) of the Act requires that a government institution retain personal information that has been used for an administrative purpose for such period of time after it has been used as may be prescribed by regulation in order to ensure that the individual to whom it relates has a reasonable opportunity to obtain access to the information.
  4. Section 6(2) states that a government institution shall take all reasonable steps to ensure that personal information that is used for an administrative purpose by the institution is as accurate, up-to-date and complete as possible.
  5. Section 4 of the Privacy Regulations requires that a government institution retain personal information that has been used for an administrative purpose for at least two years following the last time the information was used unless the individual to whom it relates consents to its disposal.

Analysis

  1. The main issue raised by this complaint is whether the audio recording of the PRB hearing was subject to this retention requirement, such that DND should not have destroyed the recording shortly after the hearing took place. A secondary issue is whether the records created from the audio of the PRB were accurate.
  2. The term "transitory" is not used in section 6(1) (or elsewhere in the Act). As such, the relevant question is not whether a record is "transitory" but rather whether it contains personal information that has been used for an administrative purpose. If it does, then the retention obligation in section 6(1) is triggered and a government institution may not destroy the information until the two-year retention period has expired. It should be noted, that while DND's own Recordkeeping policy indicates that transitory records should be disposed of when no longer required, it also indicates that employees and Canadian Forces members must take into account the protection of personal information in their record keeping practices, as required by the Privacy Act, among other statutes.
  3. Turning to the application of section 6(1) in this case, we considered three questions:
    • Did the audio recording contain the complainant's "personal information" as defined by the Act;
    • If so, was that information contained in the recording used by DND for an "administrative purpose"; and
    • Did the complainant consent to the disposal of the information?
  4. It seems clear that the audio recording contained the complainant's "personal information". The purpose of the PRB hearing was to assess the complainant's performance and suitability for the training program. The witnesses provided the PRB with their views as to the complainant's performance in the training program and his suitability for the program. This information would have been captured on the audio recording of the hearing and would constitute the complainant's personal information as defined in section 3.
  5. The next issue to determine is whether the personal information in the audio recording was used for an "administrative purpose". To meet the definition of "administrative purpose", the information must have been used "in a decision-making process that directly affects that individual".
  6. It is our view that this requirement is also satisfied. The personal information contained in the recording (i.e., the evidence provided to the PRB during the hearing) was clearly used by the PRB to make findings and to determine what recommendation it should make. The process also directly affected the complainant, as the Commandant attached some weight to PRB's findings and recommendation when coming to his final decision to remove the complainant from the training program.
  7. Further, the purpose of section 6 is to ensure that individuals have a "reasonable opportunity" to access personal information that has been used by a government institution to make decisions about them. It also allows them to ensure that the information is accurate and that it can be corrected if necessary.
  8. However, section 4 of the Privacy Regulations provides that personal information that has been used for an administrative purpose may be disposed of prior to the expiration of the two year retention period if consent of the individual is obtained.
  9. DND maintains that the complainant indicated that he agreed in substance with the minutes by attaching his signature to them and to the synopsis of his own witness statement. This, however, does not in our view constitute consent. The complainant's signature on the minutes is under the heading "Representations". The text immediately above his signature merely says "Students [sic] statement", next to which the complainant appears to have written "I wish to provide representation". There is nothing in the minutes to indicate that the complainant agreed with their contents and certainly nothing to suggest that he consented to the destruction of the audio recording.
  10. Of course, it should be noted that DND had no obligation — at least under the Privacy Act — to make an audio recording of the PRB proceedings. However, once it did so that information became subject to the Act, and specifically to the requirements found under section 6 of the Act.

Conclusion

  1. In view of the preceding, we find the complaint is well-founded.
  2. DND is encouraged to develop and implement a policy / procedures with respect to the collection, retention and disposal of information collected as part of a PRB hearing, in particular a policy / procedures that would address the application of section 6 of the Act with respect to audio recordings, should DND continue to record its hearings.
  3. In the interim, while the above recommended policy is under development, it is recommended that DND retain the PRB recording or a verbatim transcription, for at least a minimum of two years, unless consent to destroy the record sooner is obtained from the affected individual.

Other

  1. It was noted during the investigation that, in response to the complainant's request for the recording, DND did not proactively offer to provide to the complainant a copy of the official record that it had created from the PRB hearing.
  2. As well, upon our initial request for such, DND initially refused to provide both our Office and the complainant with a copy of this record. Subsequently, our Office was provided a copy of the record, and we were informed that DND had also released a copy to the complainant.
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