Legal Aid Saskatchewan is looking at having lawyers use anti-theft cabling for their briefcases in different court locations after a privacy breach.
A ruling by the Office of the Saskatchewan Information and Privacy Commission says that in November 2017, a lawyer working for Legal Aid Saskatchewan at the Battlefords Courthouse stepped out into a hallway to speak to clients.
The ruling said the lawyer had left files on a defence counsel table, and when he returned from the hallway, he discovered one file had disappeared.
Efforts by the lawyer to find the file by following up with four other defence lawyers and the Crown were not successful, said the ruling.
Legal Aid Saskatchewan reported the privacy breach to the Office of the Saskatchewan Information and Privacy Commission the following day.
As a result of the incident, officials at Legal Aid Saskatchewan say the organization is now considering having staff use anti-theft cabling for their briefcases when at different court locations.
The ruling noted that Legal Aid Saskatchewan told the commission it was looking at purchasing bike locks so lawyers could secure their briefcases, and in the ruling, the commissioner recommended it “follow through with purchasing bike locks, or anti-theft cables, so that its lawyers can use them to secure locked briefcases to fixed objects.”
“. . . We’ll have a conversation with our local managers about that to make sure that’s feasible,” says Kyla Shea, director of planning and administration at Legal Aid Saskatchewan. “We go to court in a lot of places that aren’t courthouses. It’s curling rinks and band halls and things like that, so securing a briefcase to a folding table isn’t actually doing anything.”
The ruling said that, prior to the incident, if a Legal Aid Saskatchewan employee needed to leave a room at a court location and leave court files unattended, a policy was in place that all documents had to be in a locked briefcase or in view of the court party.
The prior policy was also that files could be left unattended in a locked courtroom, said the ruling, or in other locations — such as a band office — in a locked room for a short period of time.
However, the Office of the Saskatchewan Information and Privacy Commission found the policy to be “inadequate to protect against the loss of personal information.”
“The policy permits employees to leave personal information unattended for short periods of time in a locked briefcase. The briefcase, even if it is locked, can still be taken with personal information inside of it,” said the ruling.
“My office’s position is that these records must be stored securely and kept under the constant control of the employee. If this is not possible, then the records should be temporarily stored in a secure location such as a locked room or desk drawer.”
Legal Aid Saskatchewan has 73 staff lawyers who work in more than 80 different locations, says Shea. The organization also works with approximately 100 lawyers in the private bar who also handle cases on a contract basis.
“Our lawyers all travel with locking briefcases, of course, and do their best to keep those in site and on their person,” she says.
Shea says that, in the past, there have been discussions about members of the court party not being responsible to keep an eye on documents.
“We’ll reiterate that again,” she says, noting there will be a new training module launched in 2018 on privacy, confidentiality and managing electronic and paper documents. The loss was reported to the client, said the ruling.
Craig Goebel, chief executive officer of Legal Aid Saskatchewan, says that “resolving the risk down to zero is probably impossible.
“[T]hat’s part of the difficulty we have to accept, that where we go and how we get there and what we carry . . . does not allow our lawyers to be capable of 100-per-cent risk resolution,” he says.
Gordon Hamilton, partner at McDougall Gauley LLP in Saskatoon, said the takeaway for lawyers is “to remain vigilant with protecting client information and client files.”
“[T]he concept of keeping your files in a locked briefcase that is secured to the defence counsel table with a bike lock, which you lock and secure whenever you leave the courtroom, seems impractical,” he said via email.
He noted, however, that the case is “a unique decision with unique facts.”
“We all know that client files are to be strictly guarded, as the law society and our professional code place strict obligations on lawyers to protect confidential client information,” he wrote. “Here, the apparent ‘theft’ occurred from the defence counsel table, presumably during a break in the court’s proceedings. We all know the multiple files that legal aid lawyers will bring with them to court, and we have all seen legal aid lawyers leave the courtroom and spend 10 minutes or so meeting with clients. I have personally seen legal aid lawyers leave their files on the defence counsel table numerous times while they leave to chat with a client.”
That being said, Hamilton said the ruling struck him as “odd” for several reasons.
“[Fi]rst, the stolen file was sitting on the defence counsel table, which is on the other side of the bar or rail, where only lawyers are permitted to go with a few exceptions,” he said. “Second, even during breaks, there are usually other lawyers present in the courtroom, who would question someone walking past the rail and right up to the defence counsel table. I am told that this old courthouse does not have video surveillance in the courtroom, which will make it difficult to determine for certain who stole it. These facts seem to fall into the category of a ‘one-off’ situation.”