Public Employees’ Right of Privacy

Osgoode Hall in 1856

I hope everyone is enjoying the summer and the great weather we’ve been having across most of the province.

Just in time for some “light summer reading”, on June 21, 2022, the Ontario Court of Appeal issued an interesting decision that may have implications for how institutions conduct searches in response to Freedom of Information (FOI) requests.

In Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476 (CanLII), “the private communications of two teachers recorded on their personal, password-protected log were read and captured by screenshots taken by their school principal, and then used by [their] school board to discipline them.”

After workplace concerns regarding a colleague, and “following her union’s advice, Ms. Shen started a log using her personal Gmail account. She authorized [a second teacher], Ms. Rai, to have access to the log. The log was password protected and accessible only to the two [teachers]; both could contribute to the log and read it. Although the log could be accessed using an internet browser on a workplace laptop, it was not saved on any workplace drive or on the laptops. It was stored ‘in the Cloud’ on Ms. Shen’s private Google account.”

The existence of the log was known to some at the school, and there had been attempts to search the school computers for it, to no avail.

On December 16, 2014, the school principal, Mr. Pettigrew, entered Ms. Shen’s classroom after she had left for the day.

“He saw that the laptop computer provided by the school for classroom use was open and touched its mousepad. A document called ‘Log Google Docs’ opened on the screen. Mr. Pettigrew read the document and began to scroll through it. He realized that this was the grievors’ log he’d heard about and used his cellphone to take screenshots of the entire log – about 100 entries in total.”

Initially, an arbitrator found that the two teachers’ reasonable expectation of privacy had not been breached by the employer’s actions. This determination was upheld in a 2-1 decision by the Divisional Court of Ontario.

However, the finding was reversed by a unanimous decision of the Ontario Court of Appeal (ONCA), which instead found that the teachers had an objectively reasonable expectation of privacy in their password-protected log stored “in the Cloud”.

There are a few points from this case that I think may be relevant to FOI professionals making determinations about the proper extent of a search in response to an access request:

First of all, the ONCA confirmed s. 8 of the Charter of Rights prohibiting unreasonable search and seizure applies to public institutions such as school boards, and are not limited to a criminal or quasi-criminal context:

“It is enough to say that s. 8 applies to the actions of the principal and the school board.

“There is nothing surprising in this. It is clear the protection of s. 8 is not limited to the criminal and quasi-criminal law context.”

Additionally, the ONCA found that “the arbitrator’s conclusion that the log was left in ‘plain sight’ and that the grievors had only a diminished expectation of privacy as a result skewed her analysis of the reasonableness of the search.” In other words, the fact that the private document was left unlocked and openly accessible from work computer did not render the search reasonable.

Further, the fact that there was a “judgmental quality” to the log entries did not justify the search. As noted by the ONCA:

“The arbitrator appears to have fixed on this characterization to justify the principal’s actions. Because the log was concerned mainly with the [teachers’] views about other people, the arbitrator said it was ‘far from personal or intimate information about either of them’, and so not close enough to the grievors’ biographical core to breach their privacy. […]

“This reflects a clear misunderstanding of both the nature of the log and the [teachers’] s. 8 rights. A person’s thoughts about others are no less personal to them than their thoughts about themselves. The teachers were within their rights to be judgmental – to criticize the school, their fellow employees, and the principal in their private communications. Their private thoughts were not to be mined by the school principal to address his employment relations concerns, no matter how innocently the principal may have come upon the log or how pressing his concerns were.” [emphasis added]

This serves as a useful reminder that even the thoughts and opinions of one employee about another should be considered “personal information”, given appropriate circumstances.

For more information about this decision, you may be interested in this recent Law Times article summarizing the case.

Happy summer everyone.

Published by Justin Petrillo

I have created the FOI Assist™ software to help Ontario’s provincial and municipal government institutions of all sizes track and respond to Freedom of Information (FOI) requests. For most of my career I have been a lawyer, advising clients on commercial, intellectual property and FOI/privacy issues. From 2013 to 2015, I managed the FOI program for the Toronto 2015 Pan/Parapan Am Games Organizing Committee while serving as Legal Counsel to the Games. Prior to becoming a lawyer, I obtained a computer science degree and worked as a software developer at several well-known technology companies.

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