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8 Tips on keeping an investigation confidential

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Recently, I was on an airplane returning to Toronto from Sudbury. Apart from what I’m about to tell you, the flight was unremarkable. Friendly flight attendants served a selection of drinks and snacks. The flight jostled us across the sky with its typical turbulence. I sipped some wine, lamented how few pretzels there are in one bag, and caught up on the news at the end of a long day.

My tired eyes rested on the screen of an open laptop just ahead of me. What I saw was the title page of a workplace investigation report, which listed the names of the parties and the employer. As the person with the laptop scrolled through the document, I could read the first few sentences of what the investigation was about. Then I looked at the person sitting behind the screen and recognized her as an investigator in Toronto.

Boy, do I ever know her instinct to squeeze in those extra hours of work. These can be difficult files, and real people are waiting for our reports on the other end. We don’t want our clients to wait a minute longer than necessary. Working when travelling can be a smart way to get the work done fast. But not at the cost of people’s privacy.

Investigations contain sensitive material that must always be kept confidential, a standard which has been adopted in the Ministry of Labour’s Code of Practice. Of course, the woman on the plane knew this, but she forgot to consider her surroundings and what was visible from the other seats. Here are some tips for keeping workplace investigations (or any legal work) confidential, whether you are working while travelling or managing the investigation all the way along.

1. Be careful with your open laptop.

If you’re in public, look around to see who’s nearby. Is the train full? Power down that laptop. Are there few people in your general area? If you choose to work, consider swivelling in your seat so that your laptop faces away from anyone’s line of vision. Ideally, you would have a privacy shield affixed to your laptop to obscure the screen. Better yet, move seats to a more private section on the train. Spending a minute to survey your environment is the first step to taking the proper precautions.

2. Use code words.

I travel frequently to meet clients where they are. You may be surprised how often I overhear telephone conversations where another lawyer appears to be communicating strategic advice or instructions to a client while on the train or waiting to board a plane. If you can’t avoid speaking with a client when you are in public, be mindful about what you say and use code words if possible. Strangers may be listening even if they appear to be minding their own business. Be careful not to mention any identifying information.

3. Don’t disclose the names of clients to anyone.

On the way to the Sudbury airport (again!) someone in my shared taxi told me that he was a lawyer and workplace investigator and mentioned the name of his client to me. No matter how harmless it may seem, don’t share the name of your client, or the parties, or any information about the file to friends – new or old. Lawyers working as investigators are held to an even higher standard, where failure to keep client information confidential may violate section 3.3 of the Rules of Professional Conduct.

4. Find a private meeting location.

Need to pick a meeting room to conduct your interviews? It’s best to avoid any room with glass walls, unless the glass is frosted. Ideally no one should be able to peer into the room and know who’s in there with you. If your office has an open design with little privacy, consider holding any meeting after hours when you know no one will be around. If meeting after hours isn’t an option, arrange a meeting room at a discreet external location.

5. Invest in an encrypted audio recorder.

If you’re audio recording interviews, opt for an encrypted recording device so that the data (i.e. the interview) will be secure in the unlikely event that you misplace the recorder. This regrettable situation will be far less potentially damaging if the contents on the device are encrypted.

6. Password-protect your smartphone.

This one is self-explanatory. I am still surprised by how many people do not take this common-sense security step.

7. Password-protect your documents.

Before sending reports and documents to anyone by email, consider first password-protecting those files so that, in the unlikely event that the email gets intercepted, the documents will be secure. The password should be communicated in a separate email.

8. Triple-check the addressee.

Unless you’ve hit “reply” to an existing email message, make a habit of slowing down your electronic communication and triple-checking the email address you’re writing to. We all know how easy it would be to write to the wrong “Alex” in your contacts list.

Technology makes working en route so easy. It’s tempting to maximize productivity by taking that quick call, squeezing in a few extra minutes of work, chatting with a friendly stranger about a file, or firing off a few emails. Take a second to consider where you are. If it would be imprudent to work, perhaps take a break instead – and enjoy it! The risk of exposing private information about an investigation is too high, and the consequences too great.