CATSA’s notification to police about travellers with cannabis determined to be a contravention of the Privacy Act

Complaint under the Privacy Act (the “Act”)

August 7, 2020

Description

An individual filed a complaint accusing the Canadian Air Transport Security Authority (CATSA) of overstepping its authority when, in 2017, it notified local police after finding legal medical cannabis in his possession. Although not listed on Transport Canada’s Prohibited Items List as an item that could pose a threat to aviation security, CATSA said that it notifies police if it discovers cannabis in an amount beyond legal possession limits, whether medical or recreational. We found CATSA does not have the authority to collect personal information for general law enforcement purposes and recommended CATSA stop such collection and disclosure and update its policies accordingly.

Report of Findings

Summary of Investigation

1. This Report of Findings details the investigation of a complaint received by the Office of the Privacy Commissioner of Canada (the “OPC”) against the Canadian Air Transport Security Authority (“CATSA” or the “Authority”) regarding its practice of notifying local police when cannabis is found in a traveller’s possession.
2. Specifically, the complainant alleged that the practice of collecting and disclosing personal information to police is a contravention of the Privacy Act, since CATSA’s mandate is to screen passengers for aviation security and, in his view, making such a disclosure is outside of that mandate (PA-048557). The complainant also raised concerns regarding how CATSA records and retains the information it collects when the search of a passenger results in the discovery of cannabis (PA-048561).
3. The complainant provided an example of his own experience with the issues raised in his complaint. He reported that in early 2017, he was stopped by a CATSA screening officer while traveling from Toronto Pearson International Airport to Ottawa Macdonald-Cartier International Airport with medical cannabis. He stated that the officer took out his prescription bottles, placed them in view of other passengers, and recorded information from the bottles, his boarding pass, and his photo identification on a scrap piece of paper. The CATSA screening officer then contacted Peel Regional Police, Airport Division, which sent a police officer to attend the scene to verify the complainant’s medical documentation.
4. It should be noted that the complaint relates to the former Access to Cannabis for Medical Purposes Regulations, which allowed individuals to possess up to 150 grams of dried cannabis for medical purposes with a prescription. Those regulations were registered in 2016 but were repealed with the enactment of the Cannabis Act in October 2018. The amount of medical cannabis that an individual can legally possess with a prescription remains 150 grams under the Cannabis Act, but any adult aged 18 or older may also now legally possess up to 30 grams of recreational cannabis without a prescription. Nevertheless, cannabis remains a controlled substance under the Controlled Drugs and Substances Act.
5. During the course of our investigation, CATSA advised that while it no longer notifies police anytime it discovers cannabis, it still assesses cannabis discoveries and notifies the police in certain circumstances. We therefore undertook to examine CATSA’s policies that were in effect at the time of the complaint through to its current policy.
6. Following our analysis, which is detailed herein, we have concluded that the CATSA’s collection and, disclosure of personal information of passengers found to be in possession of cannabis is in contravention of the Act. We therefore consider the related complaint to be well-founded.
7. Consequently, we made recommendations to CATSA to amend its current practices and policies , which CATSA has agreed to do. Given CATSA’s positive response, we now consider the collection and disclosure complaints to be conditionally resolved.
8. We found no contravention of the Act with respect to CATSA’s practice of destroying the records it made of such searches, and therefore find the record-keeping aspect of the complaint not-well founded.

Jurisdiction

9. CATSA was established as a Crown corporation when the Canadian Air Transport Security Authority Act (the “CATSA Act”) came into force on April 1, 2002. CATSA is fully funded by parliamentary appropriations and is accountable to Parliament through the Minister of Transport.
10. According to the definition found in section 3 of the Privacy Act, “government institution” means (a) any department or ministry of state of the Government of Canada, or any body or office, listed in the schedule, and (b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act.
11. Since CATSA is a Crown corporation, it is therefore a government institution for the purposes of the Privacy Act.
12. The complainant alleges that CATSA inappropriately collected, disclosed, and retained his personal information. We determined at the outset of our investigation that the information at issue is personal information as defined in section 3 of the Privacy Act, since it constitutes “information about an identifiable individual.” Among other things, this includes “the name of the 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.”

Issues

13. Considering the allegations made by the complainant, our investigation proceeded on the basis that determinations would have to be made with respect to the following three questions:
    1. Is the collection of personal information from travellers found to be in possession of cannabis consistent with section 4 of the Privacy Act?
    2. Is the disclosure of the personal information of travellers found to be in possession of cannabis consistent with section 8 of the Privacy Act?
    3. Are CATSA’s record retention practices in terms of the personal information collected from travellers found to be in possession of cannabis consistent with section 6 of the Privacy Act?

Methodology

14. During the course of our investigation, we examined not only the specific circumstances surrounding the complainant’s allegations, but also CATSA’s practices more broadly as they relate to travellers in possession of cannabis, whether medical or recreational (i.e., including various iterations of its relevant policies). To that end, we reviewed written representations received from both the complainant and CATSA.
15. At the outset of our investigation, we looked specifically at the policies that were in place at the time the complaint was received in March 2017. CATSA then advised that it had updated its policy October 1, 2017, so we also undertook a review of that version of the policy.
16. Given that the Cannabis Act came into force on October 17, 2018, CATSA issued a new policy on October 11, 2018, which we also examined. This policy remains in effect at the time of writing this report.
17. We also considered the findings detailed in the OPC’s 2011 Audit Report, “Privacy and Aviation Security: An Examination of the Canadian Air Transport Security Authority” (the “Audit Report”), which are relevant to the complaint.

Summary of Facts

CATSA’s authority and mandate

18. According to CATSA’s website, the Authority’s creation in 2002 was the centerpiece of the Government of Canada’s response to the September 11, 2001, terrorist attacks. Its mission is to protect the public by securing critical elements of the air transportation system as assigned by the Government of Canada. CATSA is responsible for a number of services related to security, including screening passengers and baggage before they board a flight (known as pre-board screening), screening passengers’ checked baggage (hold-baggage screening), and the random screening of workers and other non-passengers entering restricted areas of the airport that are not accessible to the public.
19. “Screening” is defined in section 2 of the CATSA Act to include a search, performed in the manner and under the circumstances prescribed in aviation security regulations, security measures, emergency directions or interim orders made under the Aeronautics Act.
20. In its written representations, CATSA referred to its mandate as set out in subsection 6(1) of the CATSA Act:

    The Authority’s mandate is to take actions, either directly or through a screening contractor, for the effective and efficient screening of persons who access aircraft or restricted areas through screening points, the property in their possession or control and the belongings or baggage that they give to an air carrier for transport,” and to also ensure “consistency in the delivery of screening across Canada and for any other air transport security function provided for in this Act.”

21. The Canadian Aviation Security Regulations provide details regarding CATSA’s authority to screen for prohibited items, weapons, explosive substances, and incendiary devices. Specifically, subsection 10(1) of those regulations state:

    If an aviation security regulation, a security measure, an emergency direction or an interim order requires a person to be screened, a screening authority must not permit the person to pass beyond a screening checkpoint into a sterile area unless the screening authority ensures that the person is not in possession or control of any goods that:

    1. are listed or described in the general list of prohibited items; or
    2. pose an immediate threat to aviation security.

22. Prohibited items include specific weapons that are illegal under the Criminal Code of Canada as well as a number of other items that could be used to cause serious injury or threaten the safety of the aircraft. Transport Canada has published a detailed list of prohibited items (“Prohibited Items List”) for passengers on all flights.
23. We note, however, that cannabis is not – and was not – listed as a prohibited item on Transport Canada’s Prohibited Items List as something that could pose a threat to aviation security.

CATSA’s policies

24. CATSA initially provided us with written representations regarding the practices and policies that were in place in early 2017 at the time the complaint was received. It made the following submission with respect to the discovery of medical cannabis at that time:

    CATSA’s procedures are underpinned by the current legal framework applicable to medical cannabis and the corresponding challenge that our organization faces in determining whether the cannabis has been legally obtained. Cannabis is a controlled substance under the Controlled Drugs and Substances Act. While the law is evolving, cannabis remains illegal unless an individual is entitled to possess the drug for a medical purpose under the Access to Cannabis for Medical Purposes Regulations. These Regulations do not provide for a single government-issued document of entitlement to possess medical cannabis. While at one time Health Canada did issue a certificate authorizing medical use, that is no longer the case. Thus while a passenger may produce documentation indicating a right to possess cannabis, Screening Officers have no authority or expertise to determine the validity of such documentation, or any claims by the passenger to be legally carrying cannabis. In keeping with its mandate of ensuring consistency in the delivery of screening, and at the direction of Transport Canada, our regulator, CATSA’s approach is to notify the police to determine legality and enforce compliance with the law.

    Thus, if an item suspected of being an illegal drug, including cannabis, is inadvertently discovered during a normal search, or a passenger declares having cannabis for a medical purpose, police are notified. CATSA’s involvement concerning the suspected illegal drug ends with that notification. There are two different ways the police are notified … depending on whether there is police presence at the airport. The police, who have the authority to make determinations as to legality, do have different approaches when notified that cannabis is described by the passenger as being carried for medical purposes. For example, in some cases police may refuse to attend the screening checkpoint. This means that passenger experiences may vary despite the fact that CATSA’s procedures are applied as required across the country.

25. The policy underlying CATSA’s practices that was in effect at the time of the complaint was CATSA’s Standard Operating Procedures, Version 4.0 (the “SOP”). As indicated in CATSA’s submissions, the SOP required that police be notified if a Screening Officer inadvertently discovered illegal drugs or large sums of money during the course of a security screening. It was then up to the responding police officers to determine what law enforcement action, if any, was required.
26. Specifically, Chapter 22.5 of the SOP, “Emergency Procedures – Discovery Of Illegal Drugs Or Large Sums Of Money,” stated:

    The discovery of illegal drugs or large sums of money must be “inadvertent” (accidental) and occur only while conducting screening for threats to aviation security. Once a person has been cleared, you may not search further in an attempt to find illegal drugs or large sums of money.

    Although the name of the person carrying illegal drugs or large sums of money cannot be recorded on an Incident Report form, it is important to record the incident. The name of the person may be provided verbally to the police and the details of the discovery will be recorded by the police in a separate process [emphasis in original].

27. With respect to the disclosure of personal information to the police, CATSA explained that as per the SOP, police were contacted in one of two ways depending on their availability when a passenger declared that they were carrying cannabis for medical purposes or when cannabis was inadvertently discovered during a standard search:
    1. Class 1 airports with on-site police presence (in larger centres)
       • Passengers could request a private search area for the police verification.
       • No information about the passenger regarding the discovery or declaration of cannabis for medical purposes, the police notification, or the verification process would be recorded by CATSA, since police would speak directly with the passenger.
       • Once the police completed their verification, the passenger would be cleared to proceed into the airport’s sterile area,^{Footnote 1} provided that the screening process had been completed.
       • If police chose not to attend, there would still be no collection of personal information by CATSA or its screening contractors.
    2. Airports with no on-site police presence
       
       Only the following information from the passenger(s) would be noted:
       • Name
       • Air Carrier
       • Departure time of flight
       This information would be provided to police by telephone, once the passenger had cleared screening, and any written copies were to be destroyed after it was used and disclosed.
28. CATSA therefore submitted that the collection of personal information only occurred at airports where there was no on-site police presence. The personal information would only be collected so that it could be provided to police for law enforcement purposes, which was done after the individual had cleared the security screening. The policy was not to retain personal information following the notification of police.
29. According to the SOP, after police were contacted, the Screening Officer should complete an Incident Report, but the person’s name was not to be recorded.
30. With respect to the concerns raised by the complainant regarding other travellers being able to watch and listen during his examination, CATSA explained that “If passengers declare they have cannabis, or Screening Officers inadvertently discover cannabis for medical purposes, Screening Officers are trained to offer the use of a private search area for police to complete the verification of documentation.”

The 2017 Cannabis Act

31. On October 1, 2017, CATSA changed the procedure regarding the discovery of medical cannabis. As of that date, when cannabis carried in accordance with federal regulations was discovered by Screening Officers and the person had medical documentation, police would no longer be notified. However, police would still be notified where the amount of cannabis appeared to exceed the permitted amount of 150 grams as set out in the Regulations, even if medical documentation was produced; where the traveller did not have medical documentation for the cannabis in his/her possession; or the cannabis was voluntarily abandoned at the screening line.^{Footnote 2}
32. The Cannabis Act and its regulations subsequently came into force on October 17, 2018, legalizing the purchase, possession, and use of recreational cannabis by individuals over the age of 18 years. The amount of cannabis that an individual with medical documentation is legally permitted to possess (150 grams) remains unchanged but individuals without medical documentation are now legally permitted to possess up to 30 grams of dried cannabis and up to 100 ml of cannabis oil.
33. In anticipation of the Cannabis Act coming into force, CATSA issued a Screening Operations Bulletin (SOB 357 – Marijuana) on October 11, 2018, advising CATSA employees of changes to the SOP for all Canadian airports beginning October 17, 2018. Since that date, CATSA’s policy is to notify the police when cannabis appearing to be over the allowable limits is inadvertently discovered at a screening checkpoint. Consequently, police will be contacted in the following circumstances:
    • The passenger provides medical documentation but the cannabis in his or her possession exceeds allowable limits (>150g or amount that would fit inside a 1L plastic bag);
    • The passenger fails to provide medical documentation when the cannabis in his or her possession exceeds allowable limits (>30g or an amount that would fit inside a sandwich bag); or
    • The passenger voluntarily abandons an amount of cannabis that exceeds allowable limits at a screening line.
34. CATSA advised that it does not validate passenger identity or age when they are found to be in possession of cannabis.

Summary of the complainant’s and respondent’s positions

35. CATSA submitted that it is the screening authority under the Aeronautics Act and is required to screen all passengers and their baggage and possessions. CATSA is of the view that the inadvertent discovery of illegal items, including contraband, resulting directly from such screening, is incidental to CATSA’s mandate and relates directly to the screening program, and is therefore in line with the requirements of section 4 of the Privacy Act. CATSA also submitted that, at the direction of its regulator, Transport Canada, its approach to notify police when cannabis is inadvertently discovered is in line with its mandate of ensuring consistency and efficiency in the delivery of screening, as required under subsection 6(1) of the CATSA Act. The CATSA Act also requires that its mandate be carried out in the public interest, having due regard to the interest of the travelling public.
36. The complainant does not agree with CATSA’s position that the collection and/or disclosure of personal information of passengers found to be carrying cannabis during the security screening process is consistent with its mandate. His position as articulated in his letter of complaint is as follows:

    I believe CATSA’s policy for the screening of medical cannabis breaks privacy legislation. Upon finding legally obtained medical cannabis (even if in original bottles, which is a valid form of medical cannabis ID) in a passenger’s possession, CATSA policy requires screening officers to break patients privacy and automatically send this information and documentation to law enforcement. If no law enforcement are present (in smaller airports from my understanding), they will record this information and send it to local law enforcement to follow up with. They also sometimes take copies of medical documentation/license/receipts. This forced breach of privacy adds time and stress to domestic air travel, which is already challenging when travelling with an illness. Patients have no choice but to wait around for law enforcement to be notified of their possession of a legally obtained medication while all other passengers in the screening area listen and watch.

    CATSA’s mandate is to screen passengers for aviation security. There is no valid reason for CATSA to refer all medical cannabis patients to law enforcement by default – this is not within their mandate. This is a breach of patients’ privacy and a potential concern as others in the screening area will undoubtedly hear about their cannabis possession. No other medication or health information is screened this way that I am away of and moreover medical cannabis does not pose any risk to aviation security.

The OPC’s 2011 CATSA audit

37. In 2011, our Office published a report on our review of CATSA’s policies, practices and standard operating procedures, privacy impact assessments, security assessments and agreements with screening contractors.
38. In that report, we explained that as part of its pre-board screening activities and pursuant to regulated requirements, CATSA must verify the authenticity of boarding passes. The Boarding Pass Security System was introduced in 2009 to facilitate this process. The system captures the information that is recorded on the face of the boarding pass, as well as other data that is collected from the boarding pass bar code. We found that this collection is justified given CATSA’s mandate.
39. However, we found that CATSA does not have the authority to collect personal information for general law enforcement purposes. It is not a police organization and it is not empowered to act as an agent of the police in this regard. However, we found personal information in CATSA’s files that was collected for such purposes.
40. As noted above, Chapter 22.5 of the SOP refers to both the discovery of illegal drugs or large sums of money. As such, CATSA handles both situations the same way. During the course of our audit, CATSA was unable to demonstrate that passengers carrying large sums of money or narcotics (such as cannabis) on an aircraft were a threat to aviation security. Ultimately, we found that since an aviation security incident had not occurred in these circumstances, CATSA should not have collected any personal information about the passengers. Since CATSA permits these individuals to proceed through screening with the funds or narcotics in question, we concluded that it is evident that the discovery of these items does not constitute a threat to aviation security.
41. We recommended that CATSA implement measures to ensure that the collection of personal information is limited to aviation security incidents. CATSA agreed to implement measures to comply with this recommendation.
42. Nevertheless, with respect to the use and disclosure of passengers’ personal information to the police by CATSA, we explained in our audit report that determining whether this is a consistent use requires an assessment of whether individuals can reasonably expect that CATSA will notify the police where a person or baggage is searched for purposes within CATSA’s mandate but items that are inadvertently discovered fall outside of that mandate.
43. In that report, we concluded that passengers have a reduced expectation of privacy in an aviation security environment, since they are required to present themselves and their baggage for screening and potentially for a search. Therefore, it is reasonable for an individual to expect that CATSA would notify the appropriate authorities when illegal items are inadvertently discovered.
44. We ultimately found that where the discovery of items that are clearly illegal (e.g., items that cannot be legally possessed in any context in Canada or can reasonably be expected to present a risk to aviation security) is inadvertent and unintended, notifying the police has a reasonable and direct connection to the original purpose for which the information was obtained – that is, for public safety and ensuring compliance with the law in the aviation security context.
45. We are of the view that CATSA must appreciate that reasonable expectations have changed with respect to the possession and use of cannabis and cannabis products, which have resulted in the recent changes to the law described in this report. Cannabis does not appear on Transport Canada’s Prohibited Items List and at all relevant times with respect to our investigation could be legally possessed by individuals with a valid medical certificate (prior to October 2018). Furthermore, simple possession by anyone over the age of 18 became legal with the passing of the Cannabis Act. Thus, the collection and disclosure of personal information relating its possession cannot automatically be considered reasonable (i.e., it was not apparent, on its face, that the possession was illegal). We therefore provide the following analysis with respect to compliance with the Act.

Analysis

Issue (i): Is the collection of personal information from travellers found to be in possession of cannabis consistent with section 4 of the Privacy Act?

46. Section 4 of the Act states that “No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution.”
47. In the case of the complainant, CATSA collected his personal information when it recorded information from his medical cannabis prescription bottles, his boarding pass, and his photo identification on a scrap piece of paper for the purpose of notifying the police. This collection appears to go beyond what was required by CATSA’s policy, which is to record the traveller’s name, air carrier, and departure time of flight, as described at paragraph 26 of this report. Presumably, when police are available on-site at an airport, no personal information is recorded about the traveller by CATSA officers, since police may attend and collect that information directly from the traveller if required, as they did in the case of the complainant.
48. CATSA is of the view that, in general, the collection of personal information from travellers found to be in possession of cannabis is consistent with its mandate. Implicit in that position is that the collection relates directly to an operating program of the institution.
49. CATSA’s authority to screen for prohibited items is found in the Canadian Aviation Security Regulations. Subsection 10(1) of the regulations stated that the screening authority must not permit the person to pass beyond a screening checkpoint into a sterile area unless it ensures that the person is not in possession or control of any goods that are listed or described in the general list of prohibited items; or pose an immediate threat to aviation security.
50. As detailed at paragraph 21 of this report, cannabis is not on Transport Canada’s Prohibited Items List. Moreover, CATSA has not established that a passenger carrying cannabis – medical or recreational – poses any sort of threat to aviation security. This conclusion is further supported by the fact that in smaller airports with no on-site police presence, or where passengers are at risk of missing their flight, CATSA is instructed to allow passengers to go through security with their cannabis.
51. Therefore, CATSA does not have the legal authority to collect passengers’ personal information relating to the discovery of cannabis during the security screening process, since this is not within its mandate. Thus, we cannot conclude that the collection relates directly to an operating program or activity of the institution.
52. We therefore remain of the view that CATSA does not have legal authority to collect personal information for general law enforcement investigative purposes as detailed in our 2011 Audit Report. It is not a police organization and it is not empowered to act as an agent of the police in this regard. In the case of the complainant, CATSA did not have legal authority to collect his personal information for the purpose of disclosing it to the police in order to assess the validity of his medical documentation.
53. Both at the time of the incident complained about, and now, cannabis can be legally possessed and transported within Canada by travellers. In this context, CATSA should not be collecting any further information when cannabis is inadvertently discovered – such as reviewing medical certification – in order to determine whether or not the amount of cannabis exceeds that which can be legally possessed.

Issue (ii): Is the disclosure of the personal information of travellers found to be in possession of cannabis consistent with section 8 of the Privacy Act?

54. Subsection 8(1) of the Act states that personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with subsection (2). Subsection 8(2) sets out several exceptions in which a government institution may disclose personal information without consent.
55. CATSA submitted that its practice of notifying police when cannabis is inadvertently discovered, both for quantities above and below 150 grams depending on the circumstances, is consistent with its mandate of ensuring consistency and efficiency in the delivery of screening as required under section 6 of the CATSA Act and is also in the public interest.
56. Although CATSA made no specific reference to the Act in its representations, we believe that its submissions refer implicitly to paragraph 8(2)(a) of the Act, which states that subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed “for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose.”
57. We are of the view that CATSA has not established a reasonable connection between the disclosure of personal information regarding the inadvertent discovery of cannabis and the consistency and efficiency in the delivery of the security screening process. We fail to see how such a disclosure could result in a more consistent or efficient process.
58. In the alternative, since CATSA makes reference to section 6 of the CATSA Act, we must also look at whether paragraph 8(2)(b) of the Privacy Act permits the disclosures in question. Paragraph 8(2)(b) states that personal information may be disclosed “for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure.”
59. As already noted, Section 6 of the CATSA Act essentially describes the agency’s mandate; it does not speak to making any sort of disclosures.
60. Moreover, CATSA did not make any representations suggesting that the authority to disclose the information in question is found in either the Aeronautics Act or the Canadian Aviation Security Regulations. As already noted, cannabis is not on the Prohibited Items List nor did CATSA suggest that travellers carrying cannabis can reasonably been seen to pose an immediate threat to aviation security.
61. In addition to the above, CATSA submitted that it believes that its practice is consistent with the findings of our 2011 Audit Report, in which we concluded:

    In our view, it is reasonable for an individual to expect that CATSA would notify the appropriate authorities when illegal items — or items appearing to be illegal — are inadvertently discovered. While individuals are only consenting to a search of their person and baggage for aviation security purposes, it would be unreasonable to expect that clear evidence of contraband and other illegal items would be ignored. This would also apply to the exportation of an amount of currency in respect of which it is reasonable to conclude is greater than $10,000, without undertaking an investigation to support the conclusion.

    Where the discovery is inadvertent and unintended, notifying the police … has a reasonable and direct connection to the original purpose for which the information was obtained — that is, for public safety and ensuring compliance with the law in the aviation security context.

62. While the notification of the appropriate authorities may be reasonable when an item that is clearly illegal is inadvertently discovered during the course of CATSA’s traveller screening process, we do not believe that CATSA’s practices with respect to disclosures related to cannabis discoveries, either in 2017 when the incident complained about occurred, or now, are limited in this way.
63. Specifically, as noted above in paragraph 51-52, we found that CATSA does not have legal authority to collect personal information for general law enforcement investigative purposes, such as collecting information to determine if an individual has cannabis for medical or recreational purposes. The disclosures in question involve the same information that we have found that CATSA is not entitled to collect.
64. We are therefore of the view that unless cannabis inadvertently discovered is clearly illegal (i.e. without the need for CATSA to undertake further information gathering steps such as determining if it is for medical or recreational use) the disclosure of personal information of passengers carrying cannabis to police is a contravention of Section 8 of the Act.

Issue (iii): Are CATSA’s record retention practices in terms of the personal information collected from travellers found to be in possession of cannabis consistent with section 6 of the Privacy Act?

65. Section 6 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 and that it shall dispose of it in accordance with the retention and disposal schedule approved by the designated minister. Moreover, section 4 of the Privacy Regulations requires that a government institution retain such information for at least two years following the last time it is used.
66. As already described, CATSA’s practice when cannabis is found depends on whether or not police are located on-site at the airport. Where police are stationed at the airport, no records are kept because police are called and asked to attend. In the case where police are not located on-site, CATSA’s policy states that the traveller’s personal information should be provided to police by telephone, once the passenger has cleared screening, and any written copies should be destroyed after it was used and disclosed.
67. CATSA does not appear to have an administrative purpose for the collection of travellers’ personal information where they have been found to be in possession of cannabis. Accordingly, its policy to destroy any notations containing personal information does not appear to be inappropriate. However, given that we have found that CATSA does not have the authority to either collect or disclose personal information relating to cannabis possession, we are of the view that CATSA ought to ensure that any personal information it may have retained about travellers found to be in possession of cannabis be destroyed.

Findings

68. Based on the foregoing, we are of the view that CATSA’s collection and subsequent disclosure to police of personal information from travellers found to be in possession of cannabis that is not clearly illegal is not consistent with section 4 and section 8 of the Act.
69. We therefore found the complaint with respect to section 4 and section 8 of the Act to be well-founded.
70. Finally, we are of the view that CATSA’s practice of destroying records containing the personal information of travellers collected for the purposes of making a disclosure to police is consistent with section 6 of the Act. We therefore found this aspect of the complaint not-well founded.

Recommendations

71. Given our findings with respect to the use and disclosure complaints, we provided CATSA with a Preliminary Report of Findings containing the following two recommendations:
    1. That CATSA cease collecting and disclosing the personal information of travellers found to be in possession of cannabis and update its policies accordingly.
    2. That CATSA complete a review to ensure that any records in its possession containing personal information relating to the possession of cannabis be destroyed.
72. Pursuant to paragraph 35(1)(b) of the Act, we requested that CATSA respond to our recommendations with the details of any actions that it had taken, or proposed to take, to implement our recommendations, including the date by which each would be completed.
73. CATSA provided the following response to our first recommendation:

    CATSA will revise its Standard Operating Procedures to respond to the findings and recommendations in the Preliminary Report. Going forward, CATSA will instruct screening officers not to disclose to law enforcement the inadvertent discovery of cannabis where the quantity of cannabis discovered is not clearly illegal. Consistent with its responsibility to fulfill its mandate in the public interest, and your previous guidance that disclosure of information to law enforcement relating to the inadvertent discovery of clearly illegal items is permitted under s. 8(2)(a) of the Privacy Act, screening officers may still disclose information to law enforcement regarding cannabis where the quantities of cannabis in question are clearly illegal, or where screening officers suspect that the circumstances may pose a threat to aviation security.

    CATSA will consult with Transport Canada with respect to this change in practice, and will complete this update of its Standard Operating Procedures by no later than November 30, 2020.

74. In response to our second recommendation, CATSA advised that is has already undertaken a review of all of its database incident case summaries since August 1, 2013, and deleted personal information in the two cases that included reference to “marijuana”, “marihuana” or “cannabis” that also identified a passenger name. Additionally, CATSA will also require all screening contractors to confirm all records inadvertently retained that contain personal information relating to the possession of cannabis be destroyed by November 30, 2020.
75. Given that CATSA did find two instances where information about cannabis possession was retained, we caution CATSA, that as described in our findings above, CATSA should not be retaining information about cannabis possession, even incidentally.
76. We are pleased that CATSA has implemented our first recommendation and has committed to take what we believe are appropriate actions within an acceptable timeframe to implement changes to its practices and policies in response to our second recommendation. Therefore, we now consider this matter to be well-founded and conditionally resolved.
77. We would note, with respect to guidance to be provided to screening officers as to what constitutes “clearly illegal,” that this should be restricted to discoveries of volumes of cannabis that are clearly illegal without the need for any further fact finding (such as the review of medical documentation). Under current regulations, this would include only volumes of cannabis that are clearly over 150 g. We expect that CATSA will provide us with confirmation that it has fully implemented the changes to its SOP and has completed its review of records in response to our recommendations by November 30, 2020.