Putting the checks back in police record checks

On April 15, 2014 the British Columbia Information and Privacy Commissioner Elizabeth Denham released a report calling for the immediate end to disclosure of non-conviction information in employment-related record checks. This includes ending the disclosure of mental health information in police information checks. It is welcome news to us here at Pivot, who along with mental health providers and other non-profit groups like the Community Legal Assistance Society (CLAS), have been calling for an end to this practice for quite some time.  

Under the existing system, created by the B.C. Association of Chiefs of Police (BCACP), police contact with individuals involving mental health situations can and will be disclosed on employment-related police record checks. This could include, for example, police contact after a suicide attempt, or any situation in which police transported an individual to hospital for psychiatric care. It could even include a single call to the suicide hotline for help. While the subject of a police record check must consent to the check before it takes place, they are often unaware that information on their mental health status could appear and are shocked when it does; if they request another check which does not include that information they are flatly denied.

Over the course of the last two years Pivot lawyer Doug King has been collecting stories from individuals who had mental health-related information disclosed on employment-related record checks. These stories highlighted the profound personal impact of the current police record check system on individuals, who have experienced barriers to employment and volunteer opportunities as a result of that disclosure, as well as feelings of stigma, exclusion, and loss of dignity.

In January 2014, the Office of the Information and Privacy Commissioner issued a call for submissions as part of its investigation into the use of police record checks, seeking comments from interested stakeholders. Pivot responded to this call with submissions that argued that the current police record check system is not only overbroad in the type of information it releases, but also that the information provided often has no relationship or correlation to the needs of the employer. We submitted that the police are not qualified to diagnose an individual’s health, to assign guilt, or to evaluate moral character for employment purposes, and thus the only information which can be deemed reliable and should be released under an employment-related police record check are criminal convictions.

The Commissioner agreed. In the press release accompanying the April 15 report, the Commissioner stated:

“Each year in B.C. thousands of police information checks are requested from police and used by employers or volunteer groups in the hiring process. The information in these checks can have a significant and lasting impact on an individual’s privacy, human rights, and feelings of dignity and self-worth. There is no evidence that the non-conviction information in these record checks predicts a risk of future criminal behaviour, improves the safety of citizens, or results in better hiring decisions.”

The Commissioner told police departments to immediately stop the practice of releasing mental health information in a record check, as employers have no right to ask about this information in the hiring process and releasing the information serves to further stigmatize those affected by mental illness. The Commissioner also recommended a new piece of legislation be drafted which would clearly prohibit this from happening in the future.

The report makes five recommendations in total and calls for “a new design for employment-related record checks that balances the legitimate business interests of employers with the privacy rights of citizens.”

But what happens in the meantime? Before new legislation can be drafted hundreds will continue to be harmed by this policy and the stigma it perpetuates. When Pivot asked the Vancouver Police what their plan was in light of the Commissioner’s decision, they said it would be sent back to the B.C. Association of Chiefs of Police for evaluation. This is problematic for a number of reasons, the largest of which being that the BCACP remains a shadowy “private” group without legal identity, highlighted in a recent article by journalist Rob Wipond in Victoria’s Focus Magazine. A loose affiliation of police chiefs, it is unclear if decisions of the BCACP are challengeable in court, despite the fact that they continue to set police policy in B.C.

The fight against mental health disclosure in police record checks has exposed just how far police agencies will go in using the information it collects against citizens, while simultaneously trying to shield itself from any form of scrutiny or accountability. It has been a difficult struggle, but thanks to the intervention of the Privacy Commissioner a light has been shed on what has been perhaps one of the most important and least reported government intrusions on our privacy rights in recent memory. 

Jeff Johnson is Pivot's articling student and a graduate of the University of Alberta Law School. You can find Jeff on twitter @jejohnso3, and Pivot's policing campaigner Doug King @_douglasking

Image: Information and Privacy Commissioner Elizabeth Denham (Mike Sturk/The Globe and Mail)