PIPEDA – A Real Life Scenario – Responding to Police Requests
Police arrive at your building and approach security. They have a warrant for the arrest of a resident. The guard gives them access. The police go to the resident’s suite and knock on the door. There is no answer and no evidence that the resident is home. The police do not ask to enter the suite and do not do so. In the days that follow, the situation repeats itself numerous times. Frustrated, an officer leaves his card and asks security to inform them when the resident is home. The security guard, believing he is doing his civic duty, calls the officer when he notices the resident arriving home. The police return to the building and arrest the resident.
Did the security guard do anything wrong? Were the resident’s privacy rights under PIPEDA violated? The answer to both questions is probably “YES.”
Providing the police with access to the building was not the problem. Building staff should provide access to police when they present a correctly drafted warrant, or if a crime is being committed or is about to be committed (a 9-1-1 call). In this case, the police presented an arrest warrant which the guard read. After verifying that the information regarding the owner was accurate, and after recording the officer’s badge number, the guard allowed the police to enter and approach the suite. The police did not ask to enter the suite.
The guard’s error was that he monitored the access card reader and shared the information with a 3rd party without proper authority. Information about an individual’s whereabouts, as obtained through the swiping of a building access card, is likely to be considered to be personal information about the individual for the purposes of PIPEDA. Generally, the disclosure of personal information requires the individual’s knowledge and consent under PIPEDA.
There are exceptions to this requirement.
Personal information may be disclosed by an organization without the knowledge and consent of the individual if the disclosure is:
1. Made to a government institution which has requested the information and has identified its lawful authority to obtain the information and indicated that,
a. The disclosure is for the purpose of enforcing a law of Canada or a province or carrying out an investigation; or,
b. The disclosure is for the purpose of administrating any law of Canada or a province.
2. Made on the initiative of the organization to a government institution if there are reasonable grounds to believe that the information relates to the contravention of the laws of Canada or a province that has been, is being or is about to be committed.
It could be argued that one of these exceptions applies. After all, a police officer did request the information for the purposes of executing an arrest warrant.
The police presented an arrest warrant. The police did not present a search warrant forming part of an investigation. In the absence of a valid search warrant authorizing the collection of information, the guard should have asked for a written request for information. The request should be on police letterhead, it should identify the police officer and the person under investigation. It should identify the specific information being requested and it should state that the information pertains to the enforcement of the law and that the officer has the lawful authority to collect it.
Yet, even with such a written request, the corporation could choose to wait for a proper warrant before providing information to the police. There is no obligation to speak to the police without a warrant. PIPEDA places us all in the awkward position of having to balance privacy concerns with the authority of the police to ensure safety and security. Common sense can provide some guidance. Is this case, there was no search warrant, no urgency to the arrest and no safety issue. The guard should have waited for a proper search warrant or an official letter requesting information on the resident’s whereabouts before providing it.