BC OIPC issues significant public sector criminal background check report

28 Jul

On July 25th the Information and Privacy Commissioner for British Columbia  issued a significant report on public sector criminal background checks, pushing the government of British Columbia to further tailor the scope of its program.

The report was about the province’s screening program and not vulnerable sector checks governed expressly by British Columbia criminal record check legislation. The program seems to be a top notch program. For example, it applies based on a job classification scheme developed based on a risk assessment, it limits police checks in favor of CPIC checks and it features adjudication of positive results by a body at arms length from the hiring department.

Nonetheless, the Commissioner conducted a very close review and took issue with a number of aspects of the program, especially its breadth. For example:

  • She held that four out of the ten job classifications to which a background check requirement applies are redundant or drafted too broadly. According to the Commissioner, for example, a mere responsibility for handling personal information should not attract a background check requirement given there are other means of controlling for misuse of personal information (like access control and access logging, she mentioned).
  • She held that requiring a check when dictated by third-parties was “fundamentally flawed”: “Government should determine when it will conduct criminal record checks on its employees and it should ensure that it only conducts record checks when it is authorized by FIPPA to do so.”
  • She held that post-employment checks should not be a routine requirement except for “particularly sensitive functions” and when someone is hired into a new position with a significantly different risk profile.

The third-party finding is aggressive, but might have been conceived by the Commissioner as a means of giving the British Columbia government bargaining power over the third-parties with whom it deals. The post-employment check limitation is also a significant constraint. In making this finding the Commissioner drew from Arbitrator Michel Picher’s finding in a case involving  firefighters at the City of Ottawa. The Commissioner’s finding in this report and her adoption of Mr. Picher’s principled statements are likely to be taken together as quite authoritative.

The Commissioner also addresses issues related to the identification of candidates, notification and record retention.

Investigation Report F12-03 (25 July 2012, Information and Privacy Commissioner for British Columbia).

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