An explanation for that shiver (Editor’s notes)

Privacy commissioner wants to strip names from court decisions

Do you conduct background checks on new hires? Yes? Great. That’s a smart practice, due diligence and all that good stuff. Now, think back a couple of weeks. Do you remember where you were on Aug. 17? It was a Sunday.

Since it was the weekend, there’s a good chance you were relaxing. Maybe you were doing something fun with the family. Or perhaps spending some quality time poolside or in the garden. Do you remember that point where the hairs on the back of your neck stood up? Or when you had that unexpected shiver run down your spine?

I can explain why. (You also might have felt the earth move under your feet. But I’ll get to why that happened later.) The shiver coincided with the moment Jennifer Stoddart, the federal privacy commissioner, was addressing the Canadian Bar Association’s Canadian Legal Conference and Expo in Quebec City. I can be even more precise — the chill started around her 565th word.

That’s when Stoddart dropped the bombshell that she thinks courts should no longer be publishing the names of individuals in decisions.

This notion has huge ramifications that extend far beyond HR. But let’s start with why you should care as an HR professional. There are plenty of ways to conduct background checks on potential candidates. Reference checks, criminal checks and credit checks are the most common. But, in the age of the Internet, employers have another valuable tool at their disposal — search engines. It’s not unheard of for employers to Google a candidate or to start poking around social networking sites such as Facebook.

Court documents are also readily available online. If you were about to hire someone who frivolously sued his last three employers for constructive dismissal, wouldn’t you want to know that? If the candidate was fired from his last job for selling drugs to co-workers — something he admitted to in a wrongful dismissal action he launched against his employer, but he was never criminally charged or convicted — wouldn’t that perhaps tilt your opinion in favour of the other candidate on the short list?

Chris Foulon, a partner with Israel Foulon, a Toronto-based firm that specializes in employment law, said he doesn’t see any principled reason why an employer could not take these facts into account in making a hiring decision.

Using the example of the hypothetical employee charged with selling drugs at work, Foulon said: “I think that almost any employer would consider the information relevant and would consider it irrelevant that a criminal conviction did not occur, which can happen for any number of reasons unrelated to guilt.”

Employers need to be very careful when using the Internet for background screening. You may uncover information about the candidate — such as race, religion or age — that is a prohibited ground of discrimination. You can’t use that information to make a hiring decision. But stripping out the names of people involved in court cases closes a pretty big opportunity to screen out undesirable candidates.

So, that explains the shiver you felt on Aug. 17. Now let’s explore why the earth shook underneath your feet at the same time. The “open court” principle is one of the pillars of our society. The public has a right to know what goes on in courtrooms that goes far beyond morbid curiosity. An open-court system is transparent and subject to scrutiny. Justice isn’t something that should be meted out behind closed doors, which is akin to stripping out names.

Stoddart used the phrase “practical obscurity” to explain her position. Not that long ago, cases were only available in legal texts or by taking a trip to the basement of a court or tribunal. Therefore, it was very hard to get the information — and the concept of “practical obscurity always operated in favour of privacy protection and the need-to-know principle,” she said.

“The story is now different when decisions containing highly sensitive personal information are made available to anyone with an Internet connection,” she said. “I don’t believe we would take away from the educational value of these decisions by replacing names with initials, for example.”

Boil down what she’s saying and it sounds an awful lot like this: You have the right to see this material, but it’s just too easy for you to exercise that right.

Courts already have the power to remove names from cases. They do it quite frequently. It should be left to their discretion whether to do it on a case-by-case basis.

Stoddart said she has received complaints about personal details posted in federal tribunal decisions. Details are coming out in her annual report in the fall. It’s something we should all watch closely.

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