Child and Youth Privacy in the Education System

  • February 14, 2022
  • Melanie McNaught

School boards, educators and others working with students collect a lot of personal information, sometimes without considering the privacy rights of children and youth.

The OBA’s Child and Youth Law and Education Law sections jointly presented a webinar on January 19, 2022 entitled “Child and Youth Privacy, Disclosure and Consent Concerns.” The presenters spoke passionately about protecting the privacy interests of children and youth.

Mary Birdsell, Executive Director of Justice for Children and Youth, stated that adults have a duty of care to safeguard children’s best interests, including their right to privacy. This child-focused framework involves seeing children as “rights holders” and respecting their dignity and autonomy. Privacy engages dignity and has human rights and constitutional dimensions.

One source of children’s right to privacy is the United Nations Convention on the Rights of the Child (“UNCRC”). The UNCRC provides at article 16 that “No child shall be subjected to arbitrary or unlawful interference with his or her privacy”. Canadian courts have relied upon the UNCRC in finding that children have privacy rights that are entitled to special protection. See, for example, Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner), 2018 ONCA 559.

The Education Act protects the privacy of children and youth, especially through s. 266 regarding pupil records. See also the Ontario Student Record Guideline, 2000 (revised 2020). Section 266(2) provides that pupil records are “privileged for the information and use of supervisory officers and the principal, teachers and designated early childhood educators of the school for the improvement of instruction and other education of the pupil”. Documents from the Ontario Student Record (“OSR”) are not available to any other person, except in accordance with s. 266, and they are not admissible in legal proceedings, except in limited circumstances, without the written permission of the parent or guardian of the pupil or, if the pupil is an adult, the adult pupil’s written permission.  This appears to give the parent or guardian control over access to the OSR while the student is a minor.