Office of Alberta privacy commissioner finds surveillance was for law enforcement purpose; allowed under privacy legislation
The Alberta Workers’ Compensation Board (WCB) legally used video surveillance to determine if a disabled worker made a fraudulent claim, according to an adjudicator from the office of the Alberta information and privacy commissioner.
The worker was injured while working for the Calgary Police Service and went on disability benefits in 2002. However, the WCB suspected she had misrepresented the extent of her disability. It launched an investigation and contacted the highway patrol of the district of Rocky View, Alta., to get her legal land description. The WCB gave the municipality the worker’s name and mailing address to get the land description and hired a private investigator to conduct video surveillance of her on May 14 to 17, 2002.
In June 2005, the worker obtained the information collected through an access request and filed a complaint, saying the WCB had violated Alberta’s Freedom of Information and Protection of Privacy Act (FIPPA). She claimed obtaining her legal land description and the video surveillance were collections of her personal information without her consent.
The worker was also concerned the videotape and accompanying report remained in her file and were sent to a physician in January 2005, along with other personal information, as part of an examination of her medical status. Under the Workers’ Compensation Act, such an examination requires background information about the worker, including “investigative/specialist and recent medical reports.”
In addition, the worker complained the WCB had sent her personal information to the Calgary Police Service. Though she was working there at the time of her injury, she claimed her actual employer was the City of Calgary. Though the police service needed some information to accommodate her in the workplace, she argued it shouldn’t have been sent medical or personal information unrelated to her workplace needs.
The adjudicator found FIPPA allows the collection of personal information for the purposes of law enforcement. Because the WCB is charged with administering the Workers’ Compensation Act and was investigating a potential fraud under the act, its investigation was for law enforcement purposes. Despite the fact it didn’t result in any sanctions, the adjudicator found there was that potential and “the question of the entitlement to benefits was still open when the video surveillance was conducted.”
The adjudicator also found the WCB couldn’t have been reasonably expected to inform the worker about its collection of her information in this case since it likely would have changed the way she behaved, rendering the information inaccurate.
Keeping the video and report on file was also reasonable, the adjudicator said. It was part of the record relevant to the workers’ compensation claim and should be stored for a period of time.
However, the adjudicator did have an issue with the January 2005 disclosure of the video and report to the physician. The adjudicator found the WCB was determining the worker’s existing medical condition, which was not the law enforcement purposes for which the surveillance was conducted. Though the WCB claimed including the video surveillance report was to help provide an indication of the worker’s overall capabilities, the adjudicator found it wasn’t a reasonable disclosure as it was three years later and wasn’t related to the examination.
“If an individual is no longer under suspicion of misrepresenting her disability, she should be able to expect that personal information pointing to that suspicion will no longer be disclosed,” the adjudicator said.
The adjudicator also found other information that didn’t relate directly to her medical status that was sent to the physician, such as the worker’s family status and financial situation, was unnecessary and a violation of her privacy under FIPPA.
Sending some of the worker’s information to the Calgary Police Service was a reasonable disclosure, the adjudicator found, but not all of it. The city and the worker had both listed her employer as the police at the time of her injury so it was reasonable to send medical information to those responsible for arranging her return-to-work program. However, the report also contained information about other medical conditions, family and non-work-related activities, which was not an appropriate disclosure.
The adjudicator ruled the WCB could continue to keep the video surveillance report as a record of past adjudication of the worker’s claim but to stop using it for other purposes, such as the 2005 examination. The police were also ordered to stop using the worker’s personal information that was irrelevant to her accommodation.
For more information see:
•Office of the Information and Privacy Commissioner Order F2006-018 and F2006-019 (Dec. 17, 2007), W. Raaflaub Adjudicator.
The worker was injured while working for the Calgary Police Service and went on disability benefits in 2002. However, the WCB suspected she had misrepresented the extent of her disability. It launched an investigation and contacted the highway patrol of the district of Rocky View, Alta., to get her legal land description. The WCB gave the municipality the worker’s name and mailing address to get the land description and hired a private investigator to conduct video surveillance of her on May 14 to 17, 2002.
In June 2005, the worker obtained the information collected through an access request and filed a complaint, saying the WCB had violated Alberta’s Freedom of Information and Protection of Privacy Act (FIPPA). She claimed obtaining her legal land description and the video surveillance were collections of her personal information without her consent.
The worker was also concerned the videotape and accompanying report remained in her file and were sent to a physician in January 2005, along with other personal information, as part of an examination of her medical status. Under the Workers’ Compensation Act, such an examination requires background information about the worker, including “investigative/specialist and recent medical reports.”
In addition, the worker complained the WCB had sent her personal information to the Calgary Police Service. Though she was working there at the time of her injury, she claimed her actual employer was the City of Calgary. Though the police service needed some information to accommodate her in the workplace, she argued it shouldn’t have been sent medical or personal information unrelated to her workplace needs.
The adjudicator found FIPPA allows the collection of personal information for the purposes of law enforcement. Because the WCB is charged with administering the Workers’ Compensation Act and was investigating a potential fraud under the act, its investigation was for law enforcement purposes. Despite the fact it didn’t result in any sanctions, the adjudicator found there was that potential and “the question of the entitlement to benefits was still open when the video surveillance was conducted.”
The adjudicator also found the WCB couldn’t have been reasonably expected to inform the worker about its collection of her information in this case since it likely would have changed the way she behaved, rendering the information inaccurate.
Keeping the video and report on file was also reasonable, the adjudicator said. It was part of the record relevant to the workers’ compensation claim and should be stored for a period of time.
However, the adjudicator did have an issue with the January 2005 disclosure of the video and report to the physician. The adjudicator found the WCB was determining the worker’s existing medical condition, which was not the law enforcement purposes for which the surveillance was conducted. Though the WCB claimed including the video surveillance report was to help provide an indication of the worker’s overall capabilities, the adjudicator found it wasn’t a reasonable disclosure as it was three years later and wasn’t related to the examination.
“If an individual is no longer under suspicion of misrepresenting her disability, she should be able to expect that personal information pointing to that suspicion will no longer be disclosed,” the adjudicator said.
The adjudicator also found other information that didn’t relate directly to her medical status that was sent to the physician, such as the worker’s family status and financial situation, was unnecessary and a violation of her privacy under FIPPA.
Sending some of the worker’s information to the Calgary Police Service was a reasonable disclosure, the adjudicator found, but not all of it. The city and the worker had both listed her employer as the police at the time of her injury so it was reasonable to send medical information to those responsible for arranging her return-to-work program. However, the report also contained information about other medical conditions, family and non-work-related activities, which was not an appropriate disclosure.
The adjudicator ruled the WCB could continue to keep the video surveillance report as a record of past adjudication of the worker’s claim but to stop using it for other purposes, such as the 2005 examination. The police were also ordered to stop using the worker’s personal information that was irrelevant to her accommodation.
For more information see:
•Office of the Information and Privacy Commissioner Order F2006-018 and F2006-019 (Dec. 17, 2007), W. Raaflaub Adjudicator.
