Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 41-1995
May 29, 1995
INQUIRY RE: A request for review of a decision by the Ministry of Social
Services not to disclose to the Canada Ports Corporation the date that a third
party commenced employment with the Ministry
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
World Wide Web Site: http://www.cafe.net/gvc/foi
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner in Victoria on February 28,
1995 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a request for review made
by Canada Ports Corporation ("the applicant") of a decision of the Ministry of
Social Services ("the public body") not to release the date upon which a
certain employee ("the third party") became employed by the Ministry.
On November 17, 1994 Mr. Rick Shields, Counsel, Common Law, for the applicant,
requested from the public body a record of the "date upon which [the third
party's] employment commenced with your Ministry as [position title]." On
November 29, 1994 the Ministry refused to release this record on the grounds
that the information it contained related to the third party's employment
history. The public body argued that under section 22(3)(d) of the Act such a
disclosure was presumed to be "an unreasonable invasion of a third party's
personal privacy." It rejected the applicant's argument that the information
was about the third party's "position, functions or remuneration" as its
employee, release of which would not be an unreasonable invasion of the third
party's privacy under section 22(4)(e).
The applicant requested this Office to conduct a review of the public body's
decision on December 6, 1994. The notice of inquiry was distributed on
February 6, 1995.
2. Documentation of the inquiry process
This Office invited written submissions from Canada Ports Corporation, the
Ministry of Social Services, and the third party. It also invited the
Professional Employees' Association, the B.C. Government Managers' Association,
and the B.C. Government Employees' Union (BCGEU) to make submissions as
intervenors. All parties and intervenors, except the BCGEU, made
submissions.
All parties received a Notice of Inquiry outlining the issues in this case and
a one-page fact report, which was accepted by the parties as accurate for the
purposes of conducting the inquiry.
3. Issue under review at the inquiry
This review concerned the application of the following sections of the
Act, which read in appropriate part as follows:
Disclosure harmful to personal privacy [of third parties]
22(1) The head of a public body must refuse to disclose personal information to
an applicant if the disclosure would be an unreasonable invasion of a third
party's personal privacy.
....
(2) In determining under subsection (1) or (3) whether a disclosure of personal
information constitutes an unreasonable invasion of a third party's personal
privacy, the head of a public body must consider all the relevant
circumstances, including whether
Division 4 - Public Interest Paramount
Information must be disclosed if in the public interest
25(1) Whether or not a request for access is made, the head of a public body
must, without delay, disclose to the public, to an affected group of people or
to an applicant, information
(b) the disclosure of which is, for any other reason, clearly in the public
interest.
Under section 57(2) of the Act, if the record or part of a record that the
applicant is refused access to contains personal information about a third
party, it is up to the applicant to prove that disclosure of the information
would not be an unreasonable invasion of the third party's personal privacy.
4. The record in dispute
The record in dispute consists of a standard "personnel/pay data
authorization" record, on a single sheet, containing the third party's date of
hire (i.e., the date on which the third party commenced employment with the
Ministry of Social Services).
5. Canada Ports Corporation's (CPC) case
The applicant believes that it should be entitled to disclosure of the date of
the third party's employment start because it does not appear that section
22(3)(d) of the Act was intended to protect such information from disclosure.
It argues that "employment history" is intended to protect information of the
sort that "could reasonably be expected to have a prejudicial aspect, such as
performance evaluations or discipline records.... [T]he parameters of the term
should not be viewed so expansively as to legitimize the non-disclosure of
innocuous information such as employment commencement dates."
The applicant argues that the "need for a sensible limitation on the notion of
`employment history' becomes especially apparent when paragraph 22(3)(d) is
viewed in conjunction with paragraph 22(4)(e)." It argues that the start or
termination date of an individual's employment has to fall within the category
of information described by the phrase "the third party's position, functions
or remuneration as an ... employee .... For without a temporal frame of
reference, information about an individual's position, function or remuneration
is of little value."
The applicant further argues that the Ministry has a public interest
obligation to disclose the information requested under section 25(1)(b) of the
Act, because Canada Ports Corporation is trying to determine whether the third
party legitimately received monies paid to him under a severance agreement:
The agreement in question provides that certain payments to be made on behalf
of the third party would terminate on the date of his reemployment while other
payments made to the third party would be reduced. It appears to be possible
that the third party neglected to advise CPC upon becoming reemployed.
Canada Ports also has a responsibility to inform Public Service Superannuation,
Canada Pension Plan, and Unemployment Insurance when an individual ceases to be
its employee which, in the present case, would be the date of reemployment of
the third party.
In the applicant's view, the Ministry has an obligation to disclose the
requested information "in order to advance the public good," by ensuring that
public funds expended by Canada Ports Corporation have not been unfairly
diverted from the public purse. The proper functioning of complex federal
programs relies on timely flow of correct and complete information.
Finally, the applicant argues that section 22(4)(f) of the Act contemplates
the disclosure of "financial and other details of a contract to supply goods
and services to a public body." Its argument is that under the law of master
and servant, new employees "enter into a `contract of service,' express or
implied, whereby they undertake to supply their services as employee to the
specified employer." Canada Ports believes that the third party's employment
relationship with the Ministry can be so characterized, which would justify the
requested disclosure of a basic detail of the contract, the commencement date
of the term.
6. The Ministry of Social Service's case
The Ministry determined that the start date of employment could not be
released under section 22(3)(d) of the Act, which deals with employment
history. The third party refused to allow disclosure of the information
requested.
The Ministry interprets section 22(4)(e) on the basis of the Freedom of
Information and Protection of Privacy Act Policy and Procedures
Manual, which states that the intent of the section is to allow the release
of information that relates to a job description, classification, duties and
salaries, or other benefits, the Ministry argues, "rather than to focus on the
more personal details relating to the individual's personal employment
history." (Submission of the Ministry, p. 2) Further, "the Ministry submits
that s. 22(4)(e) does not include the more personal employment information such
as the date on which an employee began working for a public body or any other
details about an employee's term of employment." (Reply Submission of the
Ministry, p. 2)
Section C.4.13, p. 28 of the same Manual states, with respect to
section 22(3)(d), that the definition of employment history includes an
individual's "term of employment" and "any information regarding an
individual's work record." Further, the Ministry argues "[i]nformation
pertaining to an employee's start date is a key component in any employee's
`term of employment.''' Thus the Ministry is of the opinion that the
Manual "clearly supports the Ministry's interpretation of this section."
The Ministry also referred me to two decisions of the Ontario Information and
Privacy Commissioner, which I will discuss below.
The Ministry did take into consideration section 22(2)(c) of the Act, which
requires consideration of whether release of the requested information would be
relevant to a fair determination of the applicant's rights:
Canada Ports Corporation now wishes to have the start date of employment, in
case the third party has been in violation of the terms of contract. The
applicant is not indicating that the third party is in violation of the
contract. Therefore, it appears that Canada Ports Corporation is `fishing' for
information of a personal nature about the third party. Thus a fair
determination of the applicant's rights is not at issue.
The Ministry also considered section 22(2)(e) of the Act, which concerns
whether a third party will be exposed unfairly to financial or other harm and
concluded:
Ports Canada Corporation [sic] is attempting to gain access to the personal
information in order to determine whether a contractual relationship has been
violated. The result of releasing the information in question could have
harmful financial, or other consequences to the third party.
7. The third party's case
The third party agrees with the Ministry's efforts to protect his privacy
against unreasonable intrusion. He especially relies on section 22(3)(d) of
the Act to protect his personal information from disclosure. Further, he
explains that his current work requires him to investigate and prosecute
individuals responsible for criminal activity against the Ministry of Social
Services. In this connection, he seems to claim that an individual he has
investigated has made threats of violence against him and that he and his
family require protection.
The third party indicates that he worked for Canada Ports Corporation for over
twenty years. He was declared redundant in 1993. This event caused
considerable distress for himself and his family. The third party perceives
that Canada Ports Corporation is attempting to establish better terms,
retroactively, for their Notice of Separation to him. He states that the
applicant is well aware that the third party's benefits attached to his Notice
of Separation were due to expire in November 1994, since the person acting for
the applicant in this case signed the original letter to the third party.
8. The Intervenors' Comments
The B.C. Government Managers' Association supports the position of the
Ministry that the record in dispute should not be disclosed, since it forms
part of the confidential personnel file and employment record of the third
party and is thus protected under section 22(3)(d) of the Act. It should not
be released without a written consent from the third party.
The Professional Employees' Association further supports the Ministry's
position, again based on section 22(3)(d) of the Act.
9. Discussion
Section 22 of the Act requires the head of a public body to refuse to disclose
information if the disclosure would be an unreasonable invasion of a third
party's personal privacy. On the facts of this case, I am of the opinion that
disclosure of the start date of employment would not be an unreasonable
invasion of the third party's personal privacy. My reasons follow.
A person's start date of employment is information which, in my view, falls
under section 22(4)(e) of the Act as information about the third party's
position as an employee of a public body. The Manual clarifies that a
third party's position, functions, and remuneration (which may be released)
include a job description and classification, a description of duties to be
performed in the course of employment, and salary amount and benefits received
as a result of employment, including severance pay. (section C.4.13, p. 39)
The examples offered in the Manual of information that can be released
include the job classification and exact salary of a public body employee and
details of a severance package provided to a former employee. (section C.4.13,
p. 40)
I find that the information in dispute in this case relates to the third
party's position and functions as an employee of a public body under section
22(4)(e).
I am supported in this view by a 1986 decision of the Quebec Commission on
Access to Information in the case of Jean-Claude Boucher against La Ville de
Laval ([1986] C.A.I. 548 to 552). An applicant sought information about a
police officer who operated a radar system for the city, in particular his
qualifications, his experience, and his years of service. The Commission
interpreted article 57 of the Quebec law, which states that the name, title,
function, address, and office telephone number of a staff member of a public
body are public information. It had previously decided that the word
"function" included the dates of the beginning and ending of an employee's work
relationship with a public body. It now decided as follows:
Conformément à sa décision précédente, la
Commission considère aussi que les dates du début et de la
cessation d'un emploi dans un organisme public sont des renseignements
publics.
In conformity with its previous decision, the Commission also considers that
the dates of the beginning and end of employment in a public body are public
information. ([1986] C.A.I. 552; translated from the French)
The Commission ordered the City of Laval to release a description of the past
and current work activities of the official in question as well as the dates
when he assumed them.
In addition to my reasons under section 22(4)(e), I also find that the
presumption raised in section 22(3)(d) of the Act does not apply in this case.
The relevant issue here is whether a start date of employment is "employment
history" within the meaning of this section. The Manual advances the
following definition of this term:
`Employment history' refers to any information regarding an individual's work
record. This includes the name of her or his employer, the term of employment,
the duties associated with the position, the salary and the reasons for
leaving. (section C.4.13, p. 28)
The further examples offered by the Manual include employment
performance appraisal reports, but notes that "this presumption does not apply
to some employment information about officers, employees or members of public
bodies .... See comments at paragraph 22(4)(e) below." (C.4.13, p. 29)
I am specifically choosing not to follow two recent decisions of the
Information and Privacy Commissioner for Ontario, which concluded that the
dates of hiring of former employees fell under the concept of "employment
history" in section 14(3)(d) of the Ontario Municipal Freedom of Information
and Protection of Privacy Act. Both of these cases dealt with information
in severance arrangements with former employees, and I do not find them
persuasive with respect to the matter currently before me. See Order M-173,
August 11, 1993, Assistant Commissioner Irwin Glasberg, p. 7; Order M-278,
March 2, 1994, John Higgins, Inquiry Officer, p. 3.
I agree with the Manual's basic interpretation that employment history
includes information about an individual's work record. I emphasize the word
"record" because in my view this incorporates significant information about an
employee's performance and duties. I do not think that the singular fact of an
employee's start date is a part of his or her record, as used in this context.
In any event, I also find that even if the information is part of "employment
history," I have concluded that the presumption that disclosure of this
information would be an unreasonable invasion of personal privacy has been
rebutted in this case. In reaching this conclusion, I have considered all of
the circumstances of this case, as well as the factors set out in sections
22(2)(c) and (e) as argued before me.
I do not think that disclosure of the information in issue here is relevant to
a fair determination of the applicant's rights. The Ministry and the third
party argued that the applicant is engaged in a fishing expedition. I
disagree, because a request for one specific record cannot reasonably be
characterized as a fishing expedition. While it is arguable that the applicant
may have a right of access to the employment start date in order to learn
whether it has spent public money on a severance agreement in accordance with
the relevant rules, I do not think that the applicant's rights are really at
issue here.
This section considers whether a third party will be exposed to financial or
other harm after the release of personal information. I cannot conclude, in
terms of public policy, that this factor would allow an individual to withhold
information which may be relevant to the receipt of public funds. If the
Ministry of Social Services was alleging some type of abuse of income
assistance against an employee of the federal government, I find it hard to
imagine that it would readily accept an argument that the federal Privacy
Act prohibited disclosure of the start-up date for employment, because
release of the information would harm the financial interests of the third
party it was pursuing.
With respect to the third party's views that he and his family require
protection from someone by non-disclosure of the record in dispute, which
presumably derives from section 22(2)(e), I find this line of argument
unpersuasive when it comes to an applicant that is a federal government body
and also subject to the federal Privacy Act. The third party has
recently had strained relations with Canada Ports Corporation, but there is no
evidence that it, or anyone working for it, poses a threat of some sort to
him.
The applicant wishes me to apply this section of the Act. The Ministry
submits that this section does not apply to the facts in this inquiry, since it
interprets the section to apply to independent contractors who are not employed
by the Ministry as regular employees. It cites Ontario Order M-173, April 11,
1993, Irwin Glasberg, Assistant Commissioner, in support of this distinction.
In the alternative, it argues, the information in dispute in this case does not
fall within the ambit of section 22(4)(f), because an employee's start date is
not information that reveals "financial and other details" of a contract. I
accept the Ministry's first position on this section. The third party's
contract of employment puts him under section 22(4)(e) of the Act, which
applies to employees of public bodies (not contractors).
Third party consent
The Ministry construes this case as follows: "It appears that one level of
government is attempting to force another level of government to release
personal information about a third party without the third party's consent."
Thus the Ministry views the issue of consent as crucial in this case. I
respectfully disagree. Under normal circumstances, consent may well be
critical, because an individual might agree to a reasonable request for
disclosure of information in these circumstances. But consent is only one way
to obtain disclosure under the Freedom of Information and Protection of
Privacy Act.
The Ministry argues that section 25(1)(b) does not apply in the circumstances
of this review. It is of the view "that the interests of the applicant on
behalf of Canada Ports Corporation are similarly [Order No. 22 - 1994, p. 15]
not broad enough to justify overriding the privacy protection in s. 22 of the
FOI Act in this case." Moreover, this applicant "has not shown how release of
one individual's personal information would be clearly in the public
interest." Despite the arguments of the parties, I do not believe it is
necessary to involve section 25 in this case, given my conclusions about
section 22.
10. Order
It is my determination that disclosure of the record in dispute would not be
an unreasonable invasion of the third party's personal privacy under section 22
of the Act. Therefore, I find that the head of the public body is not
authorized or required to refuse access to the record in dispute. Accordingly,
under section 58(2)(a) of the Act, I order the Ministry to disclose the record
in dispute to the applicant.
May 29, 1995
David H. Flaherty
Commissioner