N.W.T.’s privacy commissioner rules school district can’t release video of high-profile incident between minor, employee

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The Information and Privacy Commissioner for the Northwest Territories overturned a decision by a school district to release surveillance video footage, citing a failure to properly assess the public interest and privacy concerns.

The case, which gained significant community attention, involved a video capturing an altercation between an employee and a minor.

The incident first came to light following the circulation of a photograph on social media on March 28, 2023, which led to widespread public discussion and concern.

The worker was suspended the same day the photograph came out, pending the results of a workplace investigation into the incident. The school district’s cameras caught the incident in question from two different angles, and the child’s parent viewed the videos in question.

On April 12, 2023, six minutes of video from each encounter were disclosed to the employee and their labour union within the context of the workplace investigation. On April 14, 2023, the school district told the employee it had received a request under AITPPA for access to all surveillance footage for a 25-minute period of time that included the interaction between the child and the employee.

In response to the request for the video, the school district, seeking transparency and to address public unrest, decided to release the footage without delay. This decision was made under the belief that it was in the public interest, given the incident’s notoriety and the community’s response.

On that same day, April 14, 2023, the worker’s employment was terminated. On April 17, 2023, the union wrote to the employer on behalf of the worker to object to the release of the videos. It argued the videos contained personal information that would be an unreasonable invasion of the worker’s personal privacy. It requested an opportunity to provide full submissions on the privacy impacts of the disclosure.

On April 19, the school district informed the union it had considered the objections to the disclosure and confirmed that the video would be released to the applicant, who the employer revealed to be the child’s parent.

However, this move was challenged by the employee involved, who argued that the disclosure constituted an unreasonable invasion of privacy. The employee requested a review under section 49.1 of the Access to Information and Protection of Privacy Act (ATIPPA).

The Commissioner’s detailed investigation into the matter revealed several key issues. Firstly, it was found that the public body had no rational connection between its decision to release the video and its stated goal of serving the public interest.

The Commissioner noted that simply releasing the video to one individual – the minor’s parent – was unlikely to fulfill the intended purpose of quelling community speculation or rebuilding trust.

Moreover, the Commissioner pointed out a significant breach of privacy. By disclosing the identity of the requestor (the child’s parent), the public body had violated the confidentiality provisions of ATIPPA. This breach further complicated the already sensitive nature of the case.

The Commissioner noted that the photograph circulated on social media was said to have lacked context and to have “caused disagreement and speculation within the community about mistreatment of a minor.”

“This is said to have contributed to some members of the community feeling ‘revictimized’ by resurrecting traumatic memories of residential schools. The public body felt pressure to take some sort of action to prevent a loss of the community’s trust in the public body,” the Commissioner said.

But the video records did not provide any information that was meaningfully different than the photograph, it said.

“There is more information only in the sense that there is a video of the interaction between the employee and the minor,” the Commissioner said.

“Also, there are significant portions of the records that are audio only. These portions could cause concern because one cannot tell what is going on, though one can hear expressions of unhappiness or distress.  In my view, a person with traumatic memories of residential schools who was troubled by the photograph circulated on social media is unlikely to be comforted by viewing these videos.”

The ruling emphasized the importance of balancing public interest with privacy considerations. It clarified that while transparency is crucial, it must not override privacy rights without a clear and justifiable reason.

The Commissioner’s decision also highlighted the need for public bodies to thoroughly evaluate the potential impacts of releasing sensitive information, especially in cases that attract significant public attention.

For more information, see Re Dehcho Divisional Education Council, 2023 NTIPC 36 (CanLII)