INVESTIGATION REPORT

INVESTIGATION P99-013


An investigation into the disclosure of personal information concerning discipline matters
by the British Columbia College of Teachers

January 5, 1999

David H. Flaherty
Information and Privacy Commissioner
of British Columbia
4th floor, 1675 Douglas Street
Victoria, British Columbia V8V 1X4
tel. (250) 387-5629
fax (250) 387-1696
Web Site: http://www.oipc.bc.ca
Table of Contents

A. Executive Summary

B. Introduction

1. Background

2. Issues Investigated
C. The College's Authority for Disclosing Personal Information

1. The Teaching Profession Act

2. The College's Bylaws on Discipline Hearings

3. The College's Policies on Disclosure of Disciplinary Information
D. The College's Disclosure Practices

1. Hearing Reports

2. Case Summaries

3. News Releases

4. Annual Reports
E. The Law Society's Discipline Reports - A Comparison

F. The College's Position

1. Disclosure of Disciplinary Information in Case Summaries

2. The Case Summary that Instigated this Investigation
G. The Public Interest Argument

H. Discussion and Findings

1. The Freedom of Information and Protection of Privacy Act and the Teaching Profession Act and bylaws

2. Policies and Disclosure Practices
I. Conclusion

J. Recommendations

A. EXECUTIVE SUMMARY

The Office of the Information and Privacy Commissioner (the Office) investigated the British Columbia College of Teachers' disclosure of personal disciplinary information to verify that its policies and practices comply with Section 33 of the Freedom of Information and Protection of Privacy Act (the Act). The Office began by reviewing the College's authority for disclosing personal information and then examined its hearing reports, discipline case summaries, news releases and annual report extracts.

The Information and Privacy Commissioner found that the College had legal authority for disclosing personal disciplinary information in its various levels of reports and that its disclosure policies and practices complied with Section 33 of the Act.

In particular, the Commissioner also found that the case summaries, which the College sends to its estimated 55,000 members as part of the College's quarterly newsletter, disclosed appropriate details on individual cases, although some case summaries lacked consistency.

The Commissioner recommended to the College that it supplement its policies on disclosure of personal disciplinary information by developing additional guidelines in some areas.

The Commissioner also recommended that the College consider making its case summaries available to the public.

B. INTRODUCTION
The Office of the Information and Privacy Commissioner (the Office) has the authority under Section 42 of the Freedom of Information and Protection of Privacy Act (the Act) to conduct investigations to ensure compliance with any provision of the Act. This investigation looked at the College of Teachers' use of Section 33 of the Act, which specifies the circumstances under which a public body may disclose personal information. The College of Teachers, a self-governing professional body, is a public body under the Act and must, therefore, comply with the disclosure of personal information provisions contained in the Act.

1. Background
In June 1997, an article appeared in the Vancouver Sun concerning the decision by the British Columbia College of Teachers (the College) to terminate a former assistant superintendent's membership in the College and to cancel his teaching certificate. The former administrator, who was named in the article, was found guilty of professional misconduct and conduct unbecoming a member of the profession, following an investigation of sexual harassment allegations. Details of the harassing behaviours were included in the article.

I was intrigued by the detailed publicity of this matter and instructed my office to make inquiries into how the Vancouver Sun had obtained the information. My staff learned that the journalist had based her article on the College's case summary of the discipline decision, which was published in its quarterly newsletter. At this point, I decided to extend my investigation to the policies and practices of the College regarding its disclosure of personal disciplinary information. The focus of the investigation was to ensure that its policies and practices, particularly with respect to its quarterly case summaries, comply with Section 33 of the Act - Disclosure of Personal Information.

2. Issues Investigated
My Office investigated the types of personal disciplinary information the College discloses; the authority it has to do so; the guidelines it has established on disclosure of this type of information; to whom it discloses the information; and whether its disclosure practices are in accordance with the Freedom of Information and Protection of Privacy Act. The Office reviewed the College's bylaws, policies, hearing reports, case summaries (published in the "Discipline Decisions" section of the members' quarterly newsletter, "Report to Members"), news releases, and extracts regarding disciplinary matters from the College's annual reports.


C. THE COLLEGE'S AUTHORITY FOR DISCLOSING PERSONAL INFORMATION
1. The Teaching Profession Act
The College is governed by the Teaching Profession Act. Section 4 of the Teaching Profession Act states that the object of the College is to establish, having regard to the public interest, educational, professional responsibility, and competency standards for its members and to encourage professional interest in those matters amongst its members.

Section 23 of the Teaching Profession Act gives the College the authority to make bylaws, which have the same force of law as regulations. Under that section, the College may make bylaws on:


Section 36 of the Teaching Profession Act states that the Registrar of the College must notify the Minister of Education and each school board in the province of every case of reprimand, termination or suspension of membership, or suspension or cancellation of the certificate of qualification of a member. The Registrar is also required to record these decisions in the register of members.

2. The College's Bylaws on Discipline Hearings
(i) Bylaw 6.J
The Discipline Hearing Sub-Committee conducts discipline hearings. The procedures for discipline hearings are covered by the College's Bylaw 6.J, which states:


(ii) Bylaw 6.P
Following the hearing, the Discipline Hearing Sub-Committee renders its decision. It then forwards its findings and recommendations on penalties to the College Council in the form of a discipline hearing report. The Council then disposes of the matter under Bylaw 6.P, which states that when a decision is made about a disciplinary matter, the Registrar is to:


(iii) Bylaw 6.R
Bylaw 6.R gives the College the authority to inform its members and the public about its discipline decisions as follows:


3. The College's Policies on Disclosure of Disciplinary Information
(i) Policy P6.S
While the Discipline Hearing Sub-Committee prepares the discipline hearing report in accordance with the bylaws, access to the hearing reports is determined by policy. Policy P6.S reads as follows:


The policies do not set out criteria to guide the Council in deciding whether the names of minor and adult victims, and the names of respondents, should be removed from hearing reports (although Bylaw 6.J states that no names of victims who are minors will be disclosed). In some cases, there is a court order prohibiting disclosure, and it is likely a straightforward decision not to disclose names. In others, it appears that the College considers on an individual basis whether the public interest is served by the disclosure of the names.

(ii) Policy P6.R
Under Policy P6.R, the hearing sub-committee also prepares a case summary of its decision for distribution to the members in the quarterly newsletter. The policy sets out the format of the summaries. They are to include:


The College Council reviews the case summary at the same time that it considers the discipline hearing report. The Council may remove some information from the summary if it considers it appropriate. Generally, however, the Council appears to accept the summaries as prepared by the Discipline Hearing Sub-Committee and approves them for publication

D. THE COLLEGE'S DISCLOSURE PRACTICES
Although the various policies and bylaws suggest that the College prepares only two types of reports on its disciplinary matters, in practice it prepares four levels of reports on each discipline case. In addition to the hearing report and case summary, the College prepares a short news release for distribution to the public and provides an even briefer description in its annual report. During the investigation, my Office reviewed and compared all four types of reports.

1. Hearing Reports
Each hearing report contains a full description of the case, with an account of the hearing procedures, the incident(s), any criminal charges and convictions against the respondent, the respondent's employment history, occasionally a psychological report about the respondent, descriptions of the impact of the incidents on the victims or witnesses and, in some cases, descriptions of the impact of the incidents and subsequent events on the respondent's life. There is also a section on the appropriate method of disciplining the respondent and, in some cases, a discussion of the merits of publicizing the respondent's name and of the potential effect that publication will have on him or her and his or her family.

The College limits distribution of the complete reports to the respondent and her or his counsel, the College's Counsel, the College Council members, and appropriate College staff. Under Policy P6.S (see Part C above), victims and witnesses are not entitled to a full copy of a report of the hearing in which they were involved. The hearing reports are not disclosed to the public or the media. While the College has discretion to release them to others, it told us that, in practice, it rarely does so. There is no written policy guiding the College on this issue.

2. Case Summaries
The College publishes a "Report to Members" bulletin four times per year. Frequently, the last page of this newsletter is entitled "Discipline Decisions" and contains the Discipline Hearing Sub-Committee's case summaries for discipline cases dealt with in previous months. The College distributes the "Report to Members" to the approximately 55,000 active members of the College. For some time, it also distributed the report to all MLAs, as a result of an incident which was raised in the provincial Legislature. The College suspended the latter practice during this investigation, pending my Office's findings.

The case summaries include, in most cases, the name of the respondent, the charge, the place and date of the hearing, and a summary of the facts of the case, including details and dates of the incident(s) and, where relevant, information on the criminal charge(s), conviction(s) and sentence(s). In some cases, the summaries may also include the birth date of the respondent and the school district where he or she worked, in order to prevent confusion between members who have the same or similar names. In the case of those charged criminally, there may also be quotes from the judge's decision. The case summaries do not contain the names of adult or minor victims/witnesses or complainants. They also do not include identifying information about the victims, such as the names of the schools or school districts (except, as noted, where it is necessary to distinguish the disciplined teacher from another member with the same or similar name in another district).

The case summaries also provide the hearing panel's decision, its recommendation to the Council for discipline, and the penalty (e.g., cancellation or suspension of teacher's certificate). They may also mention that the media has extensively covered the matter.

The case summaries are not disclosed to the general public, although with such a large circulation among members and to MLAs, they are effectively made public. The College has no policies regarding further disclosure of the quarterly case summaries by its members to others, including the media, as occurred in the case that instigated this investigation. The College argues that there would be no effective way for it to enforce such restrictions.

3. News Releases
The College notifies the general public of its disciplinary decisions by issuing news releases to the media. They provide the name of the respondent unless withheld under Bylaw 6.R, the charge, brief facts of the case, and the Council's finding with respect to discipline. The news releases are approximately a paragraph in length and are issued to media outlets through the BCNet of Canada Newswire.

4. Annual Reports
The relevant sections in the College's annual reports contain only a few lines about the year's discipline cases: the names of those disciplined and the issue (e.g., professional misconduct, or conduct unbecoming a member).


E. THE LAW SOCIETY'S DISCIPLINE REPORTS - A COMPARISON
The Registrar of the College of Teachers informed this office that the College based the form and content of its discipline case summaries on those issued by the Law Society of British Columbia. The Law Society publishes two types of discipline decisions: the Discipline Case Digest, and the Discipline Digest.

My office compared samples of these reports to the College's summaries and found that the Law Society's cases tended to deal with financial irregularities on the part of its members, whereas the College's disciplinary matters stemmed primarily from sexual improprieties or criminal charges of a sexual nature. We also found that, in general, the College's summaries disclose less factual information about a case than do those of the Law Society. The Law Society discloses respondents' names and does not limit distribution of its disciplinary digests.

F. THE COLLEGE'S POSITION
1. Disclosure of Disciplinary Information in Case Summaries
In responding to our queries about the disclosure of personal disciplinary information in case summaries, the Registrar of the College told us:

The purpose of the case summaries is to provide all members with sufficient detail about the nature of cases before the College and the action taken by the College in these matters. The summaries also provide the members of the profession with assurance that the College is acting in these cases, many of which have been well known within the profession, or earlier reported in the public media. We are also required, through the media, to provide the public with the same assurance.
In more than fifty percent of the cases my Office reviewed during this investigation, the members were guilty of criminal offences ranging from murder and arson to sexual assault and indecent assault. In the College's view, these serious criminal actions by College members require the College, as a self-governing professional body, to demonstrate to its members and to the public what kinds of behaviour are unacceptable, that it does not tolerate these actions, and that it is taking measures to prevent future occurrences. This is particularly important to the College, given teachers' position of trust and authority over children.

The College also pointed out that these cases often receive extensive media coverage. The College believes that it must show the public at large and parents in particular that it has dealt effectively with the member. Where the public interest will not be served by disclosure, the College will remove identifying information about the respondent in an effort to protect the privacy of either the respondent or the victim(s).

In three cases, the College did not disclose the respondents' names in any of the four levels of reports. In one case, this was because the member was judged not to be a danger to students and had successfully returned to his previous employment position. In addition, the Sub-Committee found that the public interest was protected in that the member had expressed genuine contrition over his actions and had taken steps to prevent a recurrence of this type of situation, the only such incident in his career. As well, there had been no previous publicity of the incident. The Sub-Committee found that disclosing the member's name would create unnecessary concern and harm the school's reputation.

In another case, the College did not disclose the respondent's name because of concern for the victims' families and the family of the respondent. In a third decision, the respondent's name was withheld because it could possibly identify the victim.

2. The Case Summary that Instigated this Investigation
In the case which sparked this investigation, the member was an assistant superintendent of schools and in a position of power over many teaching professionals and staff. He had engaged in his discriminatory and sexually harassing activities for nearly ten years, with many incidents taking place in front of senior administrators within the school district. An independent investigator found that the man had engaged repeatedly in sexual harassment and abuse of power. He resigned from the school district and received an appointment as a school administrator elsewhere in BC. The College received a complaint from six members who had either observed or been the direct victims of the man's harassment and abuse of power. After a hearing, the College considered that the man's behaviours constituted a serious breach of the trust placed on members of the profession and found him guilty of professional misconduct and conduct unbecoming a member.

This case was the first of its type to proceed to disciplinary action. Thus, the College told us, it considered it essential to send a strong message, not only to members and the public, but also to school district officials that they are not to tolerate this kind of behaviour. For this reason, the case summary is unusually long, with details of the specific incidents and unacceptable behaviours.

G. THE PUBLIC INTEREST ARGUMENT
Prior to analyzing the College's legislative authority to disclose personal information and reviewing its bylaws, policies, and procedures for doing so, a discussion of the public interest in disclosure is useful. While not a determining factor in my findings, the public interest argument undoubtedly influenced my thinking on this issue.

It is generally recognized that teachers are in a position of trust and authority over their students and thus subject to a more rigorous standard of behaviour than the general public. Sadly, the majority of cases I reviewed had a distressing similarity in their accounts of teachers' criminal or otherwise unacceptable behaviour. These cases indicate that some teachers would benefit from further clarification and strong direction on what constitutes unacceptable behaviour in their interactions with both students and colleagues. For example, teachers and the public may interpret "sexual assault" as a violent attack, which it can be, but it also encompasses sexual touching and fondling. Thus, the use of general terms, such as "sexual assault" or "gross indecency" in the case summaries, might not suffice to educate and/or deter potential offenders, nor would it effectively inform the public. The College's case summaries contain descriptions of the incidents. Thus, they provide better guidance to members on what the College considers to be unacceptable behaviour, as well as reassurance to victims, parents, and the general public that the College has acted appropriately in administering discipline.

Moreover, cases often receive media coverage. I therefore agree with the College's argument that it must not only act, but be seen to deal effectively with these cases, both by its members and by the public. Conversely, where a teacher has been found not guilty of a charge, it is equally in the public interest to disclose this fact, to minimize damage to the teacher's reputation, particularly where the matter has received media attention.

The public interest does not, in my view, warrant disclosure of minor and adult victims' names. However, the disclosure of respondents' names is reasonable and justified in most cases. Publicity, notification, and the attendant embarrassment may serve to deter potential offenders. They may also prevent members who have been disciplined from obtaining other jobs working with children, where they may begin their improper activities once again.

However, where a teacher is judged not to be a danger to others, has learned his or her lesson, or where victims' identities may be revealed, there is less justification for disclosing the teacher's name. In cases such as this, I agree that the College should withhold the name of the respondent.

I therefore find valid the College's argument that it has a duty to inform its members and the public of the types of behaviour it finds unacceptable in a member. I also find that it is appropriate for the College to publish members' names in most cases, together with details of their transgressions, so members may have concrete examples of behaviour which is deemed unacceptable by College standards.

H. DISCUSSION AND FINDINGS
Having found the public interest argument valid, I must still find authority for the disclosure under the Freedom of Information and Protection of Privacy Act (the Act). I must therefore also review the College's policies and disclosure practices to ensure that they comply with the Act.

1. The Freedom of Information and Protection of Privacy Act and the Teaching Profession Act and bylaws
Section 33 of the Freedom of Information and Protection of Privacy Act sets out the criteria under which a public body may disclose personal information. Sections 33(c) and (d) are, in my view, the relevant sections for the purposes of this investigation. I conclude that the College of Teachers' disclosure of disciplinary information complies with Section 33 of the Freedom of Information and Protection of Privacy Act for the reasons discussed below.

(i) Section 33(c)
Section 33(c) allows a public body to disclose personal information for the purpose for which it was obtained or compiled or for a use consistent with that purpose. "Consistent purpose" is defined in Section 34 of the Freedom of Information and Protection of Privacy Act as a use that has a reasonable and direct connection to the purpose for which the information was obtained and is necessary for performing the statutory duties of, or for operating a legally authorized program of, the public body that uses or discloses the information.

The College has a public interest mandate in its legislation. It must have regard for the public interest in all of its activities, which include setting standards, disciplining members, and so on. I therefore accept the College's argument that disclosure of personal disciplinary information to members and the public is an extension of the disciplinary process and is, therefore, a consistent purpose.

I also accept the College's argument that its duty to protect children and ensure their safety justifies disclosure of disciplinary information about teachers found guilty of professional misconduct or conduct unbecoming a member of the profession.

I find that Section 33(c) of Freedom of Information and Protection of Privacy Act permits the College to disclose necessary personal information as part of the disciplinary process.
(ii) Section 33(d)
This section allows the disclosure of personal information to comply with an enactment of the province of BC or Canada, or a treaty, agreement or arrangement under such an enactment. The bylaws established under Section 23 of the Teaching Profession Act (see Part C above) allow the College to inform its members and the public about its discipline decisions. For the purposes of Section 33(d) of the Freedom of Information and Protection of Privacy Act, bylaws are enactments.


Section 33(d) of the Freedom of Information and Protection of Privacy Act is permissive in that it states "a public body may disclose personal information ...." The College's Bylaw 6.R is also permissive in that the Registrar "may send to the members ... a summary of the circumstances, of any decision, action taken and reasons therefor, and may release to the public a similar summary or such parts of it as are deemed appropriate." Thus, the College is not required by law or its bylaw to disclose this personal information, but it is permitted to disclose the information.

I find that the College has the legal authority under Section 33(d) of the Act to disclose personal information related to disciplinary matters.
2. Policies and Disclosure Practices
The College's policies and practices flow from its legal authority and establish when and to whom personal disciplinary information may be disclosed. As I have determined that the College has legal authority to disclose personal disciplinary information, it is on these policies and practices that the focus of this investigation naturally turns.

(i) Hearing Reports
The College does not allow the public, or even victims, access to complete versions of the reports, which contain much personal information about the respondent, the victims, and others involved in the matter. Access is restricted to very few people and, before the College discloses these reports to those who do have access, it removes the names and references to minor victims, as well as other victims, if it is in their best interest to do so.

I find the College's disclosure practices with respect to its hearing reports to be appropriate.
The College does not, however, appear to have a policy to guide it in deciding when it might be appropriate to disclose hearing reports, beyond a list set by Policy 6.S (see Part D above).

Recommendation 1

I recommend that the College develop guidelines on when it would be appropriate to disclose hearing reports, beyond the pre-determined list in Policy 6.S.

The College also does not appear to have a policy to guide it in determining when it is appropriate to disclose or withhold the names of respondents and adult victims or complainants in the distributed copies of hearing reports.

Recommendation 2

I recommend that the College develop guidelines to assist it in determining when it is appropriate to disclose the names of respondents and adult victims and complainants in its hearing reports.

(ii) Case Summaries
In this investigation, my Office concentrated on these items since they receive wide distribution and contain more personal information than the College's news releases and annual reports. My Office read a series of case summaries from a three-year period.

a. Content and Consistency
As noted above in Part G, the discussion of the public interest, I find it appropriate for the case summaries to contain the respondents' names and details of the crimes or unacceptable behaviours, in order to achieve the desired deterrent effect. Generally speaking, therefore, I find the content and level of detail in the case summaries to be entirely appropriate.

With respect to the case summary that sparked this investigation, I found it to be longer than the others but consistent in terms of content with the other case summaries involving criminal or other charges of unprofessional misconduct or sexual assault. I do not find that this particular case summary contains more detail on the member's transgressions than necessary or appropriate in this particular case.

I note, however, that some of the case summaries are inconsistent with the majority, in that they contain relatively little detail on the incidents. For example, in two cases involving similar charges or similar inappropriate behaviour, the case summary on one might contain several lines of detail on the teacher's actions while the other might give a only general term, such as sexual exploitation or assault.

The College informed my office that this inconsistency arises from the fact that, with every hearing, a different person on the sub-committee writes the case summary and thus decides what information to include, although the College Council makes the ultimate decision on the content of the case summaries. I also noticed that, in at least one case, the College Council had deleted some details originally included in the case summary, although it was not apparent why it did this, when the information was similar to information in other case summaries which the Council approved for release unchanged. Beyond the policy on format of the case summaries, there is apparently no written guidance on the level of detail that is appropriate to include in a summary, nor on maintaining consistency.

I find that the case summaries which contain more detail, including the case summary which sparked this investigation, provide an appropriate amount and type of detail concerning each matter, including where they disclose the names of the respondents. I also find that the case summaries lack consistency in content.
Recommendation 3

I recommend that the College draw up guidelines which will assist it in achieving consistency in the content of its case summaries.

b. Disclosure of Names in Case Summaries
As noted in Part G above, I agree with the College's decision not to publish victims' names and identifying information about the victims, particularly the victims who are minors. I believe it is also appropriate to protect the identity of the respondent in certain cases, for example, if disclosure could potentially identify the victim or if it would unfairly harm the respondent's reputation.

Nevertheless, the College does not appear to have a policy to guide it in determining when it would be appropriate to disclose the names of adult victims or complainants and of respondents in case summaries, leaving open the possibility of inconsistent and unfair treatment in the disclosure of personal information.

Recommendation 4

I recommend that the College draft guidelines on when it would be appropriate to disclose the names of adult victims or complainants and of respondents in case summaries.

c. Distribution of Case Summaries
Since the purpose of the case summaries is to inform members of recent disciplinary matters, I believe it is appropriate that all 55,000 members of the College receive them via the quarterly newsletter.

My Office noted that the College has no bylaws or polices regarding dissemination of its case summaries beyond College members. In the case that instigated this investigation, the media had obtained a copy of the case summary of the discipline decision which, given its wide distribution, is not surprising. The College cannot enforce restrictions on further dissemination and, in any case, I consider it appropriate that there be no attempt to restrict circulation of the case summaries.

Indeed, given the arguments for disclosure of disciplinary information in the public interest, the case summaries should, in my view, be available to the general public, as well as to members. I see no justification for members to receive more information than parents or the general public. In any case, by making these case summaries routinely available, or at least available on request, to the media and general public, the College would simply be formalizing what appears to be happening in practice already.

Recommendation 5

I recommend that the College consider making its case summaries routinely available, or available on request, to the public.

(iii) News Releases and Annual Reports
I find the College's disclosure practices in these two areas to be appropriate.

I. CONCLUSION
In reviewing the College's policies and practices, I was pleased to find that the College's policies restrict distribution of the complete hearing reports by the Discipline Hearing Sub-Committee to the parties immediately involved in the matter, with victims and witnesses receiving severed reports. The information which is more widely distributed, to College members and the public, is limited to the case summaries, news releases, and annual reports. This tiered approach to disclosure of personal disciplinary information assures me that the College appropriately limits its disclosure of personal information to those who need to know.

Although I did note some variation in the detail of the information contained in the summaries, I found that the College did not disclose personal information unnecessarily. It has bylaws and policies which prohibit the disclosure of identifiable personal information about minor and adult victims or witnesses and, in appropriate cases, about the respondents.

I conclude from this investigation that the College's policies and practices on disclosure of personal disciplinary information comply with Section 33 of the Freedom of Information and Protection of Privacy Act. However, the College should develop additional guidelines to ensure fairness and consistency in its disclosure practices. The College should also consider taking steps to ensure that the disciplinary information it discloses is more available to the general public, perhaps by means of a website.


J. RECOMMENDATIONS

Recommendation 1

I recommend that the College develop guidelines on when it would be appropriate to disclose hearing reports, beyond the pre-determined list in Policy 6.S.

Recommendation 2

I recommend that the College develop guidelines to assist it in determining when it is appropriate to disclose the names of respondents and adult victims and complainants in its hearing reports.

Recommendation 3

I recommend that the College draw up guidelines which will assist it in achieving consistency in the content of its case summaries.

Recommendation 4

I recommend that the College draft guidelines on when it would be appropriate to disclose the names of adult victims or complainants and of respondents in case summaries.

Recommendation 5

I recommend that the College consider making its case summaries routinely available, or available on request, to the public.

David H. Flaherty
Commissioner

January 5, 1999

Acknowledgment:
The Office of the Information and Privacy Commissioner wishes to thank W. Douglas Smart, Registrar of the British Columbia College of Teachers, for his kind co-operation and patience during this investigation.

Report researched and written by Celia Francis,
Deanna Hamberg and Charmaine Lowe

Editorial Assistance by Pamela E. Smith