Law Times

Law Times • January 23, 2012 FOCUS PAGE 13 Continued from page 9 but wouldn't be if they're unavail- able to it by cus- tom or practice. Smith then ordered the univer- sity to request that association members produce responsive records based on the three categories. Association coun- Dan Michaluk sel Natasha Udell says the association decided not to seek judicial review and complied with the order. But lawyer Dan Michaluk says Smith's framework could cause problems in future cases. Michaluk, a partner with Hicks Morley Hamilton Stewart Storie LLP and chairman of the firm's informa- tion management and privacy prac- tice group, says making employees responsible for the identification of responsive records, a process known as field filtering, is inappropriate for a case as complicated as this one. "Field filtering has its limits when the criteria are difficult to communicate, there's a large number of records or there's rea- son not to trust the people you're mak- ing the request to," he says. "I think this is going to be a prob- lem not necessarily because the faculty are untrustworthy but because the pro- cess is going to become very cum- bersome and prone to dispute." Smith attempted to address those concerns by suggesting that association members provide lists of records where there may be a dispute with a brief explanation of why they shouldn't fall under the university's control or custody. But Michaluk says there's still a risk of missing potentially responsive records. "The criteria are very vague and if I'm a faculty member looking at Employers warned to be cautious in searches Continued from page 9 kinds of background checks" but warns employers to remember that any materials they collect are per- sonal information subject to pri- vacy laws. Nobody should conduct a social media search without per- forming a privacy impact assess- ment, according to the report. Muter agrees that employers should resist the temptation to search the Internet for informa- tion on potential employees with- out considering the consequences. "What do you do when you find out that the candidate just post- ed on Facebook that they're four months' pregnant?" she asks. "All of a sudden, you have that informa- tion and it's going to be very hard to make the argument that it wasn't a factor in your decision on who to hire." At the same time, the B.C. guidelines warn against assuming that individuals will never be able to find out about a check given the sophistication of web analytics in the modern age. Another chief risk identified by the privacy commissioner is the accuracy of entries. It can be difficult, for example, to ensure the name on the job application matches the social media account. In addition, some information may be out of date. Employers might even encounter a fake account "set up by an imposter to discredit someone," the commis- sioner warns. Under no circumstances should employers perform checks from their personal social media accounts in an attempt to circum- vent privacy legislation, the report adds. Rudner advises his clients that they'd be "bordering on negligence not to access" information about candidates from social media CANADA LAW BOOK® www.lawtimesnews.com sources but tells them to do it cau- tiously. One way to approach the issue is to separate the social media searchers from the decision-mak- ers, he says. "They have to make sure they do it in a manner that is fair and consistent. There should be some- one filtering the information so that whoever is the ultimate deci- sion-maker gets a report that only contains relevant and appropriate information." LT ORDER # 804526-65199 $99 Hardcover approx. 400 pages January 2012 978-0-88804-526-3 them, I'm scratching my head and I default to not providing anything, which may frustrate the purposes of the act, may cause requesters to get upset, and where does that leave us?" he says. Michaluk notes he'd prefer more "employer-driven search and retrieval" under which it's pos- sible to search entire e-mail files centrally for certain keywords, a process he says would be cheaper and more effective. However, it would also run into the obstacle of academic freedom. "It raises the question: to what extent does the right of academic freedom require universities to provide a confidential means of communication to faculty mem- bers? That's obviously a question that's unique to universities. It's also a question that's probably for an arbitrator." 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Ruling gives commissioner exclusive jurisdiction

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