Concerns that Hamilton police accessing COVID-19 test data is 'invasion of privacy'

When Regina Henry provided personal details to health officials for her COVID-19 test and possible contact tracing in late March, she never thought Hamilton police might be able to access that data should she have tested positive.

"That's a huge invasion of privacy and why on Earth would they need that," the 63-year-old wonders.

This comes after the Ontario government passed an emergency order under the Emergency Management and Civil Protection Act in early April that allowed police to obtain the names, addresses and dates of birth of Ontarians who had tested positive for COVID-19.

The province recently stopped that after a legal challenge was filed by Aboriginal Legal Services, the Black Legal Action Centre (BLAC), the  Canadian Civil Liberties Association (CCLA) and HIV & AIDS Legal Clinic Ontario.

The groups argued that allowing police to access personal health records violates individuals' constitutional rights to privacy and equality.

Hamilton police used data 10,293 times

Data released in the context of the legal action showed that Hamilton police accessed that information 10,293 times between April 17 and July 20. Jackie Penman, a Hamilton police spokesperson, clarified that number represents the number of queries, not calls.

"One call may have led to five queries since addresses were spelt wrong or incorrectly entered," she said.

Hamilton Police Services ranked fifth among police services for the amount they used the database, behind police in London, York, Thunder Bay and Durham.

"The database was only accessed in cases where a call for service was generated and where the COVID-19 status of a person was unknown," Penman explained.

"Only communications operators and communications supervisors had access. Individual names of those accessing the database had to be provided to the Ministry of the Solicitor General ... no personal information was stored."

She also stressed that several audits have already been conducted through the Ministry of the Solicitor General and that Hamilton police did their own audit.

The office of the Information and Privacy Commissioner (IPC) of Ontario told CBC it was "not persuaded that these disclosures, which are highly privacy invasive, were necessary to reduce the risk of harm to those responding to emergency calls."

Henry said she called police within the timeframe services were allowed to access data. She wishes someone told her the police could access COVID-19 data, even if they never touched hers, since she tested negative.

"I never agreed to that, I never signed anything."

Helen Keene, 71, survived COVID-19 after spending 41 days in St. Joseph's Healthcare Hamilton. She understands there could be privacy concerns but remains optimistic and hopes that if they used her information, they used it for good.

"If you can make any kind of difference, it bypasses feeling of invasion of privacy or them using information about me for their own benefit," she said.

"I'm just one other person that had COVID-19 among many. I'm just not sure I should be concerned about it."

Civic and human rights groups concerned

Hamilton Centre for Civic Inclusion (HCCI) sent a letter to Mayor Fred Eisenberger, Ontario's Solicitor General and Hamilton's Police Services Board with a number of questions about the data.

"This behaviour and lack of accountability to the residents of Hamilton is concerning," read the letter.

Kojo Damptey, interim executive director of HCCI, said he has warned the city about over surveillance by police in the past.

He doesn't understand the rationale police offer for accessing the data.

"If they are concerned about their wellbeing, the prudent thing is to get personal protective equipment and not access the private information of residents," he said.

"It doesn't help from keeping you safe from COVID-19, wearing PPE keeps you safe ... this is why marginalized communities don't trust police."

Ruth Goba, executive director of BLAC told The Canadian Press the issue specifically impacts the Black community.

"Hyper-surveillance of Black communities is a current manifestation of our history of enslavement, and it is this history and its legacy that is directly responsible for our current state of inequity in Ontario and Canada."

Hamilton's Black community has seen more tension with the city and local police in recent months, especially after officers said they would conduct a potential criminal investigation after Black Lives Matter supporters painted "defund the police" on the road in front of city hall.

Local police have also been criticized for a lack of awareness regarding people of colour and its previous use of carding. 

Police 'poor stewards of data': expert

Natasha Tusikov, an assistant professor in York University's criminology department said based on what we know about policing, officers accessing that data is "troubling."

"Police tend to want to accumulate data to make sure officers are safe but also for investigations and possibly for future investigations and they tend to be poor stewards of that data," she explained.

"What are the parameters by which someone can make a request?"

She notes the number of COVID-19 cases in Hamilton, 959 total cases as of Friday, is small compared to the number of requests by police to access the database.

"It's excessive but not surprising."

The IPC's office said the numbers of times personal health information was accessed "suggests that there may have been some indiscriminate use of the database, which is concerning."

"Our office is reaching out to the police services that appear to have a disproportionate number of database inquiries, including the Hamilton Police Service, to inquire into the circumstances behind the high number of searches through the portal and ensure there is no unlawful use or retention of the information that may have been previously accessed from the portal."

Mayor Fred Eisenberger told CBC police used the data for their safety and that the concerns are "fear-mongering."

"It was done for all the right reasons ... it's a one off use," he said.

"You have to go back to when COVID started and there were a lot of unknowns and there was a shortage of protective equipment for everyone. I'm not about to second-guess the protections afforded to police ... today, I think it's a bit of a different matter."