ESDC’s usage of images obtained through video surveillance for a fact finding exercise to monitor an employee’s departure is not compliant with the Privacy Act

Complaint under the Privacy Act (the Act)

Jan 31, 2020

Description

ESDC reviewed building security video footage in the course of a fact finding exercise to determine when an employee, was leaving work. ESDC ultimately acknowledged that this use was not consistent with the security purpose for which the video surveillance was collected. Also, employees were not informed of the location of the cameras and for what purposes the information was being collected, which is also contrary to the requirements of the Act. ESDC agreed to establish a clear policy to ensure video surveillance is not used inappropriately and to take steps to inform individuals about the purposes for which the video surveillance may be used, as required by the Privacy Act.

Report of Findings

Allegations under investigation

1. The complainant alleges that the respondent, Employment and Social Development Canada (“ESDC”), contravened the Privacy Act (the Act) provisions related to the collection of personal information when ESDC Quebec’s Integrity Services accessed the video recordings of surveillance and security cameras at the Guy Favreau Complex to verify his comings and goings.
2. Additionally, the complainant alleges that ESDC contravened the provisions of the Act related to the use of personal information, when it used his personal information, obtain from the establishment’s surveillance and security cameras, for disciplinary purposes.

Summary of investigation

3. In response to the allegations, ESDC stated that at the time of the events, the complainant worked in the Guy Favreau Complex (the “Complex”) in Montreal. ESDC explained that management of the program for which the complainant worked had received allegations that he frequently left his work place earlier than planned.
4. According to ESDC, leaving without taking leave or making up the hours that were not worked is akin to fraud. Management was not physically in the same offices as the complainant but in Quebec City, and the team leader, who was in Montreal in the same offices as the complainant, had to travel between her office and the satellite offices in Brossard and Laval. Management had to conduct verifications for the purpose of confirming or disconfirming the complainant’s alleged early departures.
5. The investigation revealed that the complainant was the subject of an administrative verification under the collective agreement and not an administrative investigation for security purposes. In the course of this verification, management asked ESDC’s Regional Security Office to use the access portal to validate the complainant’s entries. Since employees do not need to use their access cards when leaving, management asked to verify the surveillance cameras. ESDC clarified that this type of verification is only done when there are serious allegations of unacceptable behaviour or wrongdoing, or when there is suspected malfeasance.
6. ESDC stated that the cameras belong to Service Canada, and are therefore managed by ESDC. The cameras are installed at the elevator doors in the Complex and record images for the purpose of ensuring the security of the employees on site. ESDC confirmed that the purpose of collecting personal information using surveillance cameras is to ensure the security of the premises and the employees who work there.
7. ESDC stated that the images regarding the complainant are from a camera located on the floor of the Complex where he worked. Management obtained verbal authorization from the Departmental Security Officer (“DSO”) on duty at the time of the events, before conducting the verification. According to ESDC, the images were viewed by an employee of the security office, not by management, and the verifications were conducted between November 2, 2015, and January 16, 2016, from pre-existing videos.
8. During the investigation, we questioned the senior Integrity and Security manager, located at the Complex, who manages regional security in ESDC buildings in Quebec. During the interview, she confirmed the following:
   • The regional security office supports management in cases of wrongdoing;
   • There is no signage where the cameras are located to inform employees about collection and the use of surveillance cameras;
   • Although an allegation of time fraud represents wrongdoing and could be the subject of an administrative investigation, there was no administrative investigation in the present case but there was fact-finding under the collective agreement;
   • The manager of the regional security office obtained verbal authorization from the DSO before proceeding, and also had authorization from labour relations;
   • The surveillance cameras record in hours, when movement is detected, for the equivalent of 60 to 90 days; and
   • ESDC does not have a policy on the use of the Department’s surveillance cameras.
9. In their representations, ESDC relied on Passport Canada’s Surveillance Policy to respond to the allegations. ESDC explained that Passport Canada’s offices are under ESDC’s responsibility and are equipped with surveillance cameras. More specifically, ESDC referred to section 7.4 of this policy which states:

   “provides authority to the Departmental Security Officer (DSO) to decide if video surveillance or digital image, created in the process of monitoring access control to departmental facilities, will be used for further administrative, legal or other purposes.”

   And section 7.9 states that “the DSO may provide the manager with a written or verbal authorisation and rationale for the use of this type of video surveillance.”
10. We have reviewed this policy and there is no mention that it applies to all ESDC buildings and offices. The roles and responsibilities are specific to Passport Canada and at page 3, under the heading “Scope” it states:

    The purpose of this document is to define Passport’s CCTV Surveillance policy concerning: the use of CCTV surveillance equipment for access control and asset protection at its facilities.

11. Moreover, at section 7.4, the policy states the obligation for signage in both official languages. More specifically, it states: “All signs must clearly indicate that the premises are under video surveillance and that the images are being recorded.” This was not the case at the complainant’s work place.
12. Moreover, ESDC also cited Murdoch v. Deputy Head, a 2015 case before the Federal Public Sector Labour Relations and Employment Board, in which the Canada Border Services Agency (CBSA) used video surveillance to prove that a public servant left early and the Board upheld the dismissal.
13. We reviewed the Murdoch decision and it differs from the present case in that the public servant’s position included a designation as peace officer as a law enforcement officer at the inland offices of the border services officers group at the security monitoring unit. Additionally, the Board explained that the CBSA Code of Conduct is an extension of the Values and Ethics Code for the Public Service, and that pages 16 and 17 of this Code state that “[i]t is the policy of the CBSA that all allegations or evidence of employee misconduct or malfeasance must be investigated to ensure that the professional reputation of CBSA employees and the integrity of CBSA operations are protected according to the CBSA Policy”. In the Murdoch case, an investigation was conducted and a report was done. The public servant did not challenge the facts or the evidence and admitted during the investigation that he had completed his time sheets in a fraudulent manner. In the present case, the complainant was not the subject of an administrative investigation by security, and no investigation report was written.
14. ESDC explained that access to the images from the surveillance cameras was essential to validate the allegations and there were no other reliable means to achieve the intended purpose. According to ESDC, management had to remedy a genuine problem. Management did not ask for increased or specific surveillance of the complainant’s whereabouts.
15. In order to verify the use of the information obtained by the surveillance videos, we reviewed the personal information bank Security Video Surveillance and Temporary Visitor Access Control Logs and Access Badges, PSU 907:

    The personal information is used to enhance the security of government institutions facilities and of individuals and assets present in such facilities … recordings can be used to investigate past occurrences, security incidents or emergency situations.

16. Additionally, we considered the principles stated by our Office in an orientation document on the use of video surveillance, and some of these are relevant to the present case:
    • Video surveillance should only be deployed to address a real, pressing and substantial problem.
    • Video surveillance should be viewed as an exceptional step, only to be taken in the absence of a less privacy-invasive alternative.
    • The video surveillance system should be tailored to minimize the impact on privacy.
    • Excessive or unnecessary intrusion on privacy should be discouraged.

Application

17. To render a decision, we considered sections 3, 4, 5, and 7 of the Act.
18. Section 3 of the Act defines personal information as information about an identifiable individual that is recorded in any form. In this case, any person caught within the visual range of a video surveillance camera can be identified. The captured image reveals information about the individual (such as the individual’s whereabouts and behaviour). Therefore, the information captured by the surveillance cameras constitutes personal information within the meaning of the Act.
19. Section 4 of the Act allows federal institutions to collect only information that relates directly to an operating program or activity of the institution.
20. Under section 5, the institution is required to inform any individual from whom it collects personal information about that individual of the purpose for which the information is being collected.
21. Under paragraph 7(a) of the Act, 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 for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose.

Findings

22. Our Office is of the opinion that video surveillance should be viewed as an exceptional step, only to be taken in the absence of a less privacy-invasive alternative. As stated in a previous report published by our office:

    [B]y its very nature, video monitoring is particularly privacy invasive as it allows for the collection of a vast quantity of information, including an employee’s image, appearance, and mannerisms. Much of this information may not be relevant to the purpose of the collection. Thus, the unrestricted use of video recording equipment to monitor individuals poses a serious threat to the privacy interests that the Act was designed to protect. Consequently, our Office has had long-standing concerns with the use of video technology for monitoring employees.

23. ESDC stated that the purpose of collecting information using video surveillance is to ensure the safety and security of the premises and the employees working there. Section 4 of the Act requires that the collection of personal information be done while respecting the limits established for the operating program or activity of the federal institution in question.
24. We are of the view that the initial collection of video recordings was done for the purpose of ensuring the security of the premises and the employees. Initially, the images of the complainant were recorded for security purposes, which is in compliant with section 4 of the Act.
25. Moreover, contrary to section 5 of the Act, ESDC was unable to show that the department informs, individuals and employees at the Complex, why personal information is being collected using surveillance cameras. First, there is no signage, or any other communication provided to employees informing them of the placement of surveillance cameras, or of the purpose for which the information obtained by these cameras is being collected. Second, ESDC does not have a policy that applies to the entire department. ESDC relies on the Passport Canada policy, but we believe this is insufficient, as this policy is specific to that program and does not include the other programs governed by ESDC.
26. Additionally, the investigation showed that the images of the complainant were used for purposes other than ensuring the security of the employees or the Complex. The fact that the collected recordings were used to verify the complainant’s whereabouts as part of an administrative verification (under the collective agreement and not security) exceeds the scope of the activity and is no longer the purpose for which it was collected.
27. We understand that in certain cases, it could be necessary to verify the presence or actions of employees for security purposes. That said, in the present case, ESDC did not show that it was an urgent and exceptional security situation. The manager could have used other, less privacy-invasive methods, such as questioning the complainant, asking the advice of other managers or asking the complainant to attest to his comings and goings. It is not reasonable for employees to expect their employer to monitor their movements using video surveillance.
28. We believe that ESDC did not show that the use of the video recordings was consistent with the purpose for which the images were collected, namely the security of the premises, and ESDC did not receive the consent of the individual involved, as required under section 7. As a result, this constitutes a use that is contrary to section 7 of the Act.
29. Considering the preceding, we must conclude that ESDC acted in contravention of sections 5 and 7 of the Act.
30. As a result, the complaints are well-founded.

Recommendations

31. Our office recommended that ESDC adopt a policy that applies to the cameras managed by ESDC that clearly identifies the purpose for which the personal information is being collected and ensures that any use of the images collected respects the provisions in the policy. Our office recommended that this be done in the six months following receipt of the report and that ESDC inform us once it has been completed.
32. Similarly, we recommended that ESDC advise individuals who might be captured on the video surveillance camera about the collection of personal information. The notice must include the elements listed at 6.2.9 of the Treasury Board Secretariat’s Directive on Privacy Practices. We also recommended that this be done in the six months following receipt of the report and that ESDC inform us once it has been completed.
33. Finally, our office encourages ESDC to limit the use of personal information collected by video surveillance. We encourage ESDC to use less intrusive measures to verify allegations of misconduct under the collective agreement.
34. Despite what happened in this case, in response to our letter to the Deputy Minister of Employment and Social Development, the Corporate Secretary noted that according to the roles and responsibilities established by the Departmental Security Officer, management should turn to the Internal Investigations Unit to conduct investigations and fact finding, and not conduct searches themselves. According to these procedures, the Departmental Security Officer would not authorize such fact finding by management and would ensure that the proper fact-finding procedures are followed. In this context, ESDC confirmed in a December 30, 2019, letter, that ESDC accepted the recommendations made by our office and would adopt a policy that would apply to the surveillance cameras and that would clearly state the purpose for which the information was being collected, and would ensure that the use of the images collected would respect this policy. ESDC would advise us when this had been completed and would respect the prescribed deadline.
35. ESDC also confirmed that it would implement the second recommendation, which is to inform individuals who might be captured on the surveillance cameras that information is being collected. However, considering the complexity of coordinating around 400 sites, it is possible that more time may be required to carry out this work. Our office will closely monitor the progress in implementing this recommendation.

Conclusion

36. Considering the above, we conclude that the complaints are conditionally resolved.