Video cameras and swipe cards in the workplace

PIPEDA Case Summary #2004-264

[subsection 5(3); Principles 4.2, 4.4, 4.5; paragraph 7(2)(a)]

Complaint

An individual filed two sets of complaints over a three-month period. All of the complaints arose out of his concerns about a new security system installed at his workplace.

He initially complained that the company was requiring that his employee picture be placed on a swipe card, a move he felt was unnecessary for an effective security system. He claimed that the company had not provided employees with information about the swipe card system. He also alleged that the manager of security for the facility had been showing the employee pictures, which were stored in a computer, to other staff and making fun of them.

Three months later, the complainant filed another set of complaints concerning the digital video cameras that are part of the security system. He alleged that the company used the cameras without his consent, to collect information about him and to use that information to impose discipline.

Summary of Investigation

The company repairs and overhauls locomotives on a site that is well over one hundred acres in size. Locomotives are accepted into the yard 24 hours a day, seven days a week. There are hazardous wastes on site.

The company provided evidence of a number of health and safety incidents justifying enhanced security measures. In fact, a Labour Canada investigator had recommended the installation of digital video cameras for safety reasons. The union agreed, noting that damage to employee vehicles and company property was a serious problem. The company had also had to deal with a liability claim from one of the many contractors who come onto the site.

The company introduced a security system with three main elements: perimeter fencing and gates; digital video cameras; and swipe card access. When employees swipe their cards, their pictures appear on the computer terminal screen in the control booth at the main entrance. The security guard can compare the picture on the card with the features of the person that he or she sees on the digital cameras posted at entry points. The guard can refuse entry to an individual if there is a concern.

The seven video cameras are trained on areas of access to the facility, including the main turnstile and ramp. The camera recordings are stored for approximately one month on the computer hard drive, and then overwritten.

The company's health and safety committee also designated the main ramp at the entrance to the facility for the use of vehicular traffic only. It issued a general communiqué to all its employees, advising them that a prohibition against foot traffic on the ramp was in effect. It also posted signs at both ends of the ramp advising pedestrians that foot traffic on the ramp is forbidden for safety reasons. It built pedestrian walkways, with handrails, on both sides of the ramp.

The company informed its employees of the new security system at the time of its introduction, and meets with them every quarter to review concerns. Information bulletins were shared with staff, and the company issued a policy statement on the use of the swipe cards outlining their purpose and rationale.

The complainant understood, through conversations with union representatives, that the manager of security services had been viewing the employee pictures and making jokes about them in front of other managers and staff. A union representative advised that this had been a concern, but that it had been resolved when he raised it with management. The manager of security services is no longer employed by the company.

The complainant filed a grievance alleging that the manager of security services deliberately hit him with a turnstile gate when he was entering the facility. In response, the company initiated an investigation into the behavior of the security services manager. This included a review of video footage. The videotape did not support the allegation of assault; however, it did reveal that the complainant had violated the prohibition against walking on the vehicle ramp. The company decided to review the tapes for the 30-day period that the camera records, to determine if the complainant had violated the prohibition against walking on the ramp on other occasions. The tapes revealed that he had walked on the ramp on five separate occasions. The company disciplined the complainant for a breach of Part II, Section 126 of the Canada Labour Code.

Part II of the Code sets out the obligations of employers and employees with respect to health and safety in the workplace. Section 126 states (in part)

While at work, every employee shall

(b) follow prescribed procedures with respect to the health and safety of employees;

(d) comply with all instructions from the employer concerning the health and safety of employees;

(f) co-operate with the policy and work place committees or the health and safety representative;

Findings

Issued February 19, 2004

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. Paragraph 7(2)(a) indicates that an organization may use personal information without consent where, in the course of its activities, it becomes aware of information that it has reasonable grounds to believe could be useful in the investigation of a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, and the information is used for the purpose of investigating that contravention. Principle 4.2 states that the purposes for which personal information is collected shall be identified by an organization at or before the time the information is collected. Principle 4.4 states that the collection of personal information shall be limited to that which is necessary for the purposes identified by the organization. Principle 4.5 states that personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law.

The Assistant Privacy Commissioner deliberated as follows:

• The company has clearly demonstrated a need to enhance the safety and security of staff and visitors to the worksite, to reduce vandalism and damage to property, and to manage the risk of liability claims. A reasonable person would likely consider these purposes appropriate in the circumstances, as per subsection 5(3) of the Act.
• The company issued policy statements and provided periodic communiqués to advise employees of the rationale for the security system and of the purposes for which their personal information was being collected. These actions are consistent with the requirement of Principle 4.2 that organizations identify the purposes for the collection of personal information.
• Given that the information that the company collects helps it to achieve its purposes because security staff can control access to the facility by verifying the identity of cardholders, the company is collecting an appropriate amount of information, consistent with the requirement of Principle 4.4.

Accordingly, the Assistant Commissioner concluded that the first complaint was not well-founded.

• Since there was some evidence that the manager of security services was inappropriately showing employee pictures to staff, she found the company contravened Principle 4.5.

Accordingly, she concluded that the second complaint was well-founded.

• With respect to the digital video cameras, the Assistant Commissioner noted that the purpose of the system is not to collect personal information. They are not trained on work areas, and there is no intent to use the cameras to manage the productivity of employees. Furthermore, there is no reasonable expectation of privacy at entrance/exit areas. Given these factors, the Assistant Commissioner did not believe it was necessary that the company obtain employee consent to the collection of any personal information recorded by the cameras. Thus, the complainant's consent to the recording of him walking down the ramp was not required, and no exception to the requirement for consent need be applied.
• As for the use of that information, in the course of investigating concerns that were raised by the complainant himself, the company inadvertently became aware that he had breached a safety obligation by walking down a ramp restricted to vehicular use. It reviewed the videotapes for a 30-day period to establish that the complainant regularly disregarded that obligation. Paragraph 7(2)(a) of the Act states that an organization may use personal information without consent if it becomes aware of information in the course of its activities that could be useful in the investigation of a contravention of a law of Canada. The Assistant Commissioner concluded that the company could rely on this exception to the requirement for consent.

Accordingly, she concluded that the third and fourth complaints were not well-founded.