CANADA—BC Supreme Court Case Indicates Importance of Access Policies
By John Jager, CIPP/US, CIPP/C, CIPP/G
In March, the Supreme Court of British Columbia issued a decision in a case filed by a former employee of a credit union in which the plaintiff sought damages for wrong dismissal (Steel v. Coast Capital Savings Credit Union, 2013 BCSC 527).
The plaintiff had been employed as a helpdesk analyst in the credit union’s IT department and was able to access any document or file as part of her duties. The credit union assigned each of its employees a “personal folder” on its IT system for the purpose of retaining confidential company information. A specific protocol relating to access to these folders by helpdesk employees provided that access to these folders could only be made with the permission of the folder’s owner or with the authorization of the VP of corporate security.
The credit union did not have in place any monitoring to determine which documents plaintiff had accessed and for what purposes she had accessed those documents. Plaintiff’s job description, however, included a statement that she would “Respect the privacy and confidentiality of all customer and staff information at all times.”
After discovering that plaintiff had accessed a document in a personal folder of another employee without the proper authorization and in violation of the credit union’s policies, plaintiff’s employment was terminated.
The court concluded that, in the circumstances, the conduct was just cause for dismissal. In its decision the court noted that plaintiff occupied a position of great trust in an industry in which trust is of central importance. A relationship of trust has been found to be particularly critical in the banking industry, where employees are held to a higher standard of trust than employees in other commercial or industrial undertakings. In this case, the credit union had established clear policies and protocols that were known to the plaintiff and, in her position as a helpdesk analyst, she was given the ability to access confidential documents.
The court found that it was not practicable for the credit union to monitor which documents plaintiff accessed and for what purpose, and it had to trust plaintiff to obey its policies and to follow the protocols and only access such documents as part of the performance of her duties.
In upholding plaintiff’s termination, the court decided that plaintiff had violated that trust in two distinct and important ways: She opened a confidential document in another employee’s file for her own purposes—not as part of her duties and not at anyone’s request—and violated the protocols governing situations for remote access of others’ folders; specifically, she did not have permission to do so from the document’s owner or from anyone entitled to grant such permission.
Impact for Organizations
Organizations should ensure they have in place specific policies and protocols that govern access to confidential documents. This is especially important for those who, by the very nature of their job, have access to files such as personnel files and other such very confidential information. These policies must be effectively and regularly communicated to employees through regular training and use of technologically based methods—consider using pop-up screens to remind high-risk employees of access limitations when opening specifically flagged sensitive files.
While in this case the lack of a monitoring system did not play into the court’s decision, system-based logging of employee access, with effective flagging of unexpected access attempts, is an effective way to ensure employee compliance with the organization’s policies and protocols.
John Jager, CIPP/US, CIPP/C, CIPP/G, is vice president of research services at Nymity, Inc., which offers web-based privacy support to help organizations control their privacy risk. He may be reached at firstname.lastname@example.org.