The use of personal email for business is a significant problem for records retention and privacy programs.
On March 18, 2013, the British Columbia Information and Privacy Commissioner (OIPBC) announced an investigation into the use of personal email accounts by public servants in that province. Although the investigation is taking place in a public sector context, the investigation is also relevant for organizations in the private sector.
Records Management Obligations
Communications taking place outside of the organization’s email records management system may not be captured in compliance with the organization’s records management system. The OIPBC reminds public servants in Guidelines on the Use of Personal Email Accounts for Public Business (released on March 18, 2013) that personal email may still be subject to the British Columbia Freedom of Information and Protection of Privacy Act (FIPPA).
FIPPA applies to records in the custody or control of a public body. A record will be under the control of the organization if (a) the record relates to a departmental matter and (b) the government institution could reasonably expect to obtain a copy of the record upon request. The OIPBC’s general rule is that “any email that an employee sends or receives as part of her or his employment duties will be a record under the public body’s control, even if a personal account is use.” These records may, therefore, be subject to access to information requests even though the organization does not have possession of the email record.
This isn’t just a public sector problem. For example, subsection 23(1) of the British Columbia Personal Information Protection Act (“PIPA”), which applies to private sector organizations in British Columbia, provides that an organization must provide an individual with the individual’s personal information under the control of the organization. There is no obvious reason why the meaning of “control” in PIPA should be narrower than FIPAA.
Information Security Obligations
The OIPBC also expressed concern regarding the security of personal email in the Guidelines. This issue applies equally to the public and private sectors. Depending on the service used by the employees and whether copies of the email are downloaded to unencrypted devices, the email may be stored in an insecure environment.
Private organizations should be aware that section 34 of PIPA requires the organization to protect personal information in its custody or under its control by making reasonable security arrangements to prevent unauthorized access, collection, use, disclosure, copying, modification or disposal or similar risks. Organizations may be faulted for turning a blind-eye to the practice of employees using personal email systems that do not provide for adequate security. In assessing the risk, organizations should consider whether they would have breach notification responsibilities in the event an employee’s personal email was compromised and that email contained personal information collected by or on behalf of the organization.
Even leaving aside the possibility of a breach, organizations should consider whether employees transmitting personal information outside of the administrative, technical and physical security controls established by organization would violate representations made by the organization in its public privacy policies.