NWT Privacy Commissioner Upholds Privacy Rights After Hospital Worker’s Alleged Photo of Visitor in Mask Dispute

Stanton Territorial Hospital in Yellowknife, N.W.T., is shown on Aug. 23, 2022. (THE CANADIAN PRESS/Emily Blake)

In April 2021, a hospital employee at a COVID screening station allegedly took photographs of a visitor to the Stanton Territorial Hospital in Yellowknife, after a dispute over the facility’s mask policy.

The “screener” also tried to get the licence plate number of the hospital visitor, who never entered the hospital past the reception desk, according to the employee’s email sent to a supervisor following the incident.

A complaint was lodged by the visitor, who has not been named, and on Dec. 5, 2022, the Privacy Commissioner for the Northwest Territories, Andrew Fox, found that the hospital employee took “action [that] was inappropriate for an employee of a public body,” in breach of the Privacy Act.

The ruling [pdf] noted that even though a “public health emergency existed at the time,” the “measures provided no express or implied authority“ for the hospital employee to ”attempt to photograph or otherwise identify” the visitor to the hospital.

The commissioner noted that the health authority for the territory even had a policy in place that personal electronic devices were not to be used during work hours, and “specifically prohibited the use of camera functions on such devices during work hours.”

A dispute at a Yellowknife hospital, over changing a new face mask to a hospital-dispensed mask, led to a privacy complaint.  (The Canadian Press/Graham Hughes)

The decision stated that no employee of a public body should be attempting to photograph a member of the public without consent, which was the hospital’s own policy. The commissioner suggested that the employees of the hospital required proper training regarding cell phone usage and privacy protection and their obligations under the Privacy Act.

“The Screener did not hesitate to use a non-government personal device to attempt to identify [the visitor],” said the ruling.

Blacklocks Reporter first obtained a copy of the ruling which laid out the facts of the case.

COVID Screener

The hospital visitor arrived at the hospital sometime in the afternoon on April 21, 2021, to meet someone.

The individual, who was not a patient, was stopped at a COVID-19 screening desk. The hospital had a policy that all visitors must put on a new face mask when entering the hospital, and answer a series of questions about possible symptoms.

The hospital visitor had put on a face mask just before entering the hospital, and according to the ruling, “objected to changing to a new one.”

The visitor allegedly tried to discuss with the screener whether changing masks was necessary, and ultimately filed a privacy complaint, left the hospital, then came back in, “advancing into the entryway but not into the main foyer,” according to the decision.

The ruling said the complainant may have taken photographs of the hospital employee giving out face masks, or may have just gestured with a cell phone in hand. The hospital screener was apparently upset by the situation and responded by retrieving a cell phone from the screening desk, and then following the visitor to the hospital parking lot.

The complainant reported “feeling intimidated” and continued walking through the parking lot while being followed by the employee.

The screener admitted to pointing the cell phone at the hospital visitor, and security camera video footage confirms the screener was walking towards the visitor, appearing to take a photograph. A photograph was entered into evidence by the complainant, showing the hospital employee appearing to hold a cell phone as if a photo was being taken.

The complainant said that the hospital employee said, “There, that’s enough footage to have RCMP arrest you” and eventually returned to the hospital.

The hospital employee stated that pointing the cell phone camera was an attempt to make the visitor “feel what it might be like to have one’s picture taken without consent,” but denied actually taking a photo or video.

In reviewing the case, Fox noted that the hospital is a health information “custodian” under the regulations, and as a public body, falls under the rules of the privacy act.

Fox also noted that a more “reasonable response” would have been for the screener to request help from hospital security. “This would have been preferable to abandoning the screening desk and taking up some investigatory role outside the Screener’s scope of employment,” he said.

Fox added that the events occurred largely because of “ill-advised actions” on the part of the hospital employee which could have resulted in the unauthorized collection, use, or disclosure of private information.

“If the screener had taken photographs or video recordings of the applicant or took other steps to identify the applicant without consent, this would have amounted to an unauthorized collection of personal information by an employee of the public body,” ruled Fox.

“The situation deserves some further comment. Collecting personal information from a member of the public without consent or other legal authority is a contravention of the Act. No employee of a public body should attempt to do something which, if completed, would contravene the statute,” he said.