Special Education

Responding To Critical Incidents

Legal Considerations

Various statutes regulate the collection, use and disclosure of information by Boards of Education. The facts of every case of critical incident will determine when it is legally appropriate to collect, use and disclose personal information and to whom that information may be disclosed.

Freedom of Information and Protection of Privacy Act

This Act, often referred to by its acronym FOIPPA restricts the collection and disclosure of written personal information by Boards and regulates the storage of such information.

Authority to collect and disclose personal information

Information may be collected under FOIPPA for various purposes, one of which is that the information relates directly to and is necessary for the operating program or activity of the public body.

Sections 33 and 34 of the Act permit the disclosure of personal information on various bases, including the following:

  • with the consent of the individual to whom the information relates,
  • for the purpose that the personal information was obtained or a consistent use with the purpose,
  • to a public body or law enforcement agency in Canada to assist in an investigation undertaken for the purpose of law enforcement proceedings, or from which law enforcement proceedings are likely to result.

If information was obtained to provide counselling to students and staff as a result of a critical incident because it is felt that students cannot continue to be effectively taught, will not attend school, or the school cannot continue to function effectively without the provision of this counselling, then that information can be used for that purpose or a "consistent use."

It is hard to determine what will or will not be considered a consistent use without looking at a specific factual situation with each critical incident. The facts will determine whether personal information can be disclosed under consistent use. For personal information to be disclosed on this basis, the information must have a reasonable and direct connection with the purpose for which it was obtained, and the use of it must be consistent with the statutory duties of the school board (such as providing an educational program to students) or it is necessary for the school board to operate a legally authorized program.

It is important to understand that personal information related to a deceased person is still covered by FOIPPA. The Act also regulates how personal information is used within a public body as well as disclosure to the public. FOIPPA regulates the oral or written disclosure of any written record held by the Board.

The Young Offenders Act

Notices, announcements, written copies of announcements, letters or information for parents and press releases about critical incidents need to be written carefully to meet the requirements of legislation related to young offenders. This Young Offenders Act, often referred to as YOA, limits the publication of names of young offenders.

Under Section 4 of the Young Offenders Act (BC), section 38 of the Young Offenders Act (Canada) applies. This section states that no report can be published respecting the offence committed or alleged to have been committed by a young person, in which the name of the young person (who is the alleged perpetrator) or the name of a young person or child who is a victim or witness is mentioned.

There are two exceptions to this general rule. The first exception is if there is an order under section 16 of the YOA. This refers to cases in which a youth court orders a young person to be tried in adult court. The other exception is in a case in which a judge makes an order that permits a report that identifies the young person.

Disclosures to any professional or person engaged in supervisory care of a young person, a representative of any school board or school, or any other educational or training institution can only be made if it is necessary to ensure the safety of staff, students and other persons. Keeping a record of this type of information is also restricted to this same requirement.

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