Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 81-1996
January 25, 1996
INQUIRY RE: A decision by the Cowichan Valley Regional District to refuse
the media access to records relating to a former employee
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
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 on November 17, 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 by P. Brian
LePine, Editor of the Cowichan Valley News Leader-Pictorial (the
applicant) of the decision of the Cowichan Valley Regional District (CVRD) to
refuse access, under sections 12.1, 17, 21, and 22 of the Act, to information
respecting a former employee (the third party).
2. Documentation of the inquiry process
The applicant submitted a request by letter dated June 30, 1995. It was
framed as a series of questions about the circumstances of the termination of
the third party's employment, especially as to the terms of any monetary
settlement reached between the CVRD and the third party on June 14, 1995. The
applicant also wanted to know whether the third party was fired or resigned and
the details of any conflict of interest allegations.
The CVRD refused access to all relevant records by letter dated August 4,
1995. The applicant's request for review was received at my office on August
31, 1995. The CVRD did not want to attempt a mediated settlement of the matter
(as is our usual practice) and asked, through its Counsel, that the matter
proceed directly to an inquiry. On October 2, 1995, Mr. Michael Woodward, as
Counsel, provided my office with a copy of the records, together with in
camera arguments against disclosure.
Subsequently, following the issue to all parties of a Notice of Inquiry, Mr.
Woodward asked that his earlier submissions be the CVRD's arguments for the
purposes of the inquiry. Thereafter, he provided two sets of submissions, one
in camera and the other for the applicant and the third party. At that
time, Mr. Woodward added section 14 as an additional exception for one 3-page
document.
3. Issue under review at the inquiry and the burden of proof
The issues under review in this inquiry are the application of sections 12.1,
14, 17, 21, and 22 of the Act to information contained in 33 pages of
records.
Under section 57(1), it is up to the CVRD to prove that the applicant has no
right of access to the records under sections 12.1, 14, 17, and 21. However,
since the CVRD has claimed the exception provided by section 22 for some
information contained in the records, it is up to the applicant, under
section 57(2), to prove that disclosure of that information would not be an
unreasonable invasion of the third party's personal privacy.
Local public body confidences
12.1(1) The head of a local public body may refuse to disclose to an applicant
information that would reveal
Legal advice
14 The head of a public body may refuse to disclose to an applicant information
that is subject to solicitor client privilege.
Disclosure harmful to the financial or economic interests of a public
body
17(1) The head of a public body may refuse to disclose to an applicant
information the disclosure of which could reasonably be expected to harm the
financial or economic interests of a public body or the government of British
Columbia or the ability of that government to manage the economy, including the
following information:
Disclosure harmful to business interests of a third party
21(1) The head of a public body must refuse to disclose to an applicant
information
Disclosure harmful to personal privacy
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
(3) A disclosure of personal information is presumed to be an unreasonable
invasion of a third party's personal privacy if
(4) A disclosure of personal information is not an unreasonable invasion of a
third party's personal privacy if
4. The records in dispute
There are 33 consecutively-numbered pages of records made up of 12 separate
documents, further numbered 1 through 12. They are described below. I note,
however, that records 5 and 6 (pages 8 to 10) are in fact either public
records, or records which the public body is willing to disclose, and are not
at issue in this inquiry.
5. The News Leader-Pictorial's case as the applicant
The applicant's argument is that the public has a right to know the conditions
of any settlement between the CVRD and its former employee and that disclosure
of the information would not amount to an unreasonable invasion of the third
party's personal privacy, because the third party was employed by the CVRD and
compensated with public funds.
6. The Cowichan Valley Regional District's case as the public body
Since the submissions of the CVRD were organized around each separate record
and applied specific sections of the Act to each, I have chosen to discuss each
argument below in the context of a review of each record. The CVRD primarily
relied upon six different parts of section 22. In each instance, it made
approximately the same argument as to why each section should apply to the
document in dispute.
From a more general perspective, the CVRD did argue as follows, on the basis
of my Order No. 62-1995, November 3, 1995:
[W]e submit that it is not, in the context of bargaining unit employees,
possible to distinguish the case where any disciplinary step short of dismissal
has occurred (such as the reprimand or suspension that one infers happened in
the Delta School Board case) and the case of a dismissal. Similarly, we submit
that the public is not to be given access to events occurring during the course
of a grievance procedure which, in any given case, may result in a resolution
of the disciplinary grievance. We submit that such items are intended under
the FOIPPA to remain personal information, and to remain exempt from disclosure
under the Act. (Submission of November 15, 1995, p. 2)
The CVRD added, more generally, that it is "an ordinary and fundamental
component of successful labour relations that memoranda pertaining to an
investigation, which has the potential to result in disciplinary action (up to
and including dismissal) is generated and received on the basis that it will
remain in confidence." Although the CVRD made this submission to me on an
in-camera basis with respect to several of the records in dispute, it is my
view that its general argument must be on the record, because of its direct
relevance to the issues under inquiry. Further, this aspect of the submission
does not reveal the contents of the records in dispute or contain information
that may be subject to an exception under the Act.
7. The third party's case
The third party is opposed to disclosure but did not make any submissions,
since he or she was content to let the CVRD argue the matter.
8. Discussion
The importance of mediation
This is the first case before me where a public body has essentially refused
to mediate a matter. Section 55 of the Act authorizes me to appoint "a
mediator to investigate and to try to settle a matter under review." That is
the ongoing, primary obligation of the Intake Officers and Portfolio Officers
who handle all requests for review that come to my office. There have been
more than 1,800 such requests for review in the past two years. One of the
considerable achievements of my colleagues has been a settlement rate for such
cases of more than ninety percent. That high rate is in fact almost the only
way that my office can implement the Act in a cost effective manner that
produces results for applicants and taxpayers.
Applicants and public bodies should make full use of the mediation services
offered by my office.
What is publicly known about this matter
Document No. 5, which is not in dispute, is a copy of a draft press release
concerning the third party and the CVRD (which was not in fact released). It
indicates that "[b]oth parties have agreed to resolve this matter to their
mutual satisfaction. Due to the length of time it has taken to get to the
arbitration stage, [the third party] has chosen to move on to other areas of
interest." The clear implication is that there has been a dispute and that it
has been settled short of arbitration with an employee leaving the employ of
the CVRD on terms that are not announced.
The issue now in dispute becomes the right of the public, including the media,
to learn what happened and the extent to which any expenditure of public funds
was involved.
Section 12.1(1)(b): the substance of deliberations of a meeting of its
elected officials or of its governing body or a committee of its governing
body, if an Act or a regulation under this Act authorizes holding that meeting
in the absence of the public
In interpreting this section, I rely on my Order No. 48-1995, July 7, 1995 in
which I stated with respect to section 12(1), that:
In my view, the `substance of deliberations' includes records of what was said
at Cabinet, what was discussed, and recorded opinions and votes of individual
ministers, if taken .... its scope includes a range of records which would
reveal what happened in Cabinet. The operative word is `deliberations.' ....
What is meant to be protected is the `substance' of Cabinet deliberations,
meaning recorded information that reveals the oral arguments pro and con for a
particular action or inaction or the policy considerations, whether written or
oral, that motivated a particular decision ....
I agree that disclosure of a record would `reveal' the substance of
deliberations if it would permit the drawing of accurate inferences with
respect to the substance of those deliberations ....
I have applied this distinction below to documents 2 to 4 in the context of a
municipal in camera meeting.
Section 21(1)(a)(ii): disclosure harmful to business interests of a
third party
The CVRD has sought to apply this specific part of section 21 to documents 1,
2, 3, 4, 7, 8, 9, 10, 11, and 12 on the grounds that the information in dispute
is "labour relations information of a third party." All of these arguments are
of no relevance in the context of this section, since it includes a three-part
test, each component of which has to be met if a record is going to be excepted
from disclosure under the Act. The CVRD cannot meet the three-part test by
arguing only one.
Given this situation, I have not addressed the claimed application of this
section to various documents in dispute.
Section 22(3)(b): the personal information was compiled and is
identifiable as part of an investigation into a possible violation of law,
except to the extent that disclosure is necessary to prosecute the violation or
to continue the investigation
The CVRD has applied this section to records 8 to 12. Based upon my review of
these records and the submissions made on this point, I conclude that the
personal information in dispute is "part of an investigation into a possible
violation of law." Accordingly, this section creates a presumption against
disclosure, which can be applied to four of these documents (as noted below) in
the way that the CVRD has done.
Section 22(3)(d): the personal information relates to employment,
occupational or educational history
Disclosure of information that fits into this category is also
presumed to be an unreasonable invasion of a third party's personal privacy.
The CVRD has applied this section to each of the ten records actually in
dispute. In Order No. 52-1995, September 15, 1995, p.6, I stated: "Once a
person has been hired, I am inclined to view what is put in his or her
personnel file about his or her hiring as then being covered by
section 22(3)(d)." I now find that what happens up until a person's employment ends is
also part of the personnel file and is thus also covered by this
section.
The Policy and Procedures Manual of the Information and Privacy Branch
of the Ministry of Government Services defines employment and occupational
history as follows at C.4.13, p. 28:
`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.
`Occupational history' refers to any information on a person's profession,
business or calling, temporary or regular employment, and includes details of
how a person spends their time.
Documents 1 and 7 to 12 in this case do concern information relating to the
employment history of the third party, which means that there is a presumption
under the Act that their disclosure would be an unreasonable invasion of the
third party's personal privacy. I apply this presumption to the specific
records below.
Section 22(3)(g): the personal information consists of personal
recommendations or evaluations, character references or personnel evaluations
about the third party
Disclosure of information that fits into this category is again presumed to be
an unreasonable invasion of a third party's personal privacy. As noted further
below, the CVRD has applied this section to six of the ten records actually in
dispute (7 to 12).
The Policy and Procedures Manual of the Information and Privacy Branch
of the Ministry of Government Services defines "personnel evaluations" in this
context to include "job performance appraisals." (C.4.13 at p. 31) I apply
this definition below to certain of the records in dispute.
Detailed review of the records in dispute
Counsel for the CVRD argues that full description of certain records could
disclose sensitive information. Thus I have relied on the identifiers for each
document presented to me in an open submission rather than the actual titles
for certain of them. And I have identified the contents of the records only to
the extent that it is plausible for the applicant and interested members of the
public to already know or infer the broad outlines of what happened in this
matter.
Document No. 1 (Page 1): A Form
This form indicates the nature of the dispute that underlies this inquiry. It
is my understanding that such information is normally withheld from disclosure
and treated confidentially in standard labour law practice. As per my
discussion above, I also find that the document in dispute concerns employment
and occupational history of the third party under the Act and thus falls under
section 22(3)(d).
Document No. 2 (Pages 2-5): In Camera Meeting Minutes
Slightly more than one page of this record of a meeting concerns the third
party and the CVRD in connection with a specific matter. The descriptive
information in these paragraphs generally discloses the "substance of
deliberations" as discussed above and as revealed in the records in dispute and
thus may be withheld under section 12.1(1)(b). Section 783(7) of the
Municipal Act authorizes the holding of such a meeting on an in
camera basis.
Document No. 3 (Page 6): Document
I find that disclosure of this record would reveal the substance of
deliberations under section 12.1(1)(b) and may thus be withheld. I cannot
further describe it without revealing sensitive personal information of the
third party and the substance of deliberations of the CVRD.
Document No. 4 (Page 7): Letter
I find that disclosure of this record would reveal the substance of
deliberations under section 12.1(1)(b) and may thus be withheld. I cannot
further describe it without revealing sensitive personal information of the
third party and the substance of deliberations of the CVRD.
Document No. 7 (Pages 11-12): November 24, 1994 Letter
This is a two-page letter from senior management of the CVRD to the third
party.
Section 22(3)(d) concerns personal information that relates to employment,
occupational, or educational history. I find that this record falls into this
category, since it concerns the activities of the third party as an employee of
the CVRD. Thus disclosure of this information would be an unreasonable
invasion of the privacy of the third party under section 22(1).
Section 22(3)(g) contains the presumption against disclosure of personal
information that consists of personal recommendations or evaluations, character
references or personnel evaluations about the third party. On the basis of the
discussion above, I find that document no. 7 falls into the category of
personnel evaluations and that its disclosure, under the Act, would be an
unreasonable invasion of the privacy of the third party.
Document No. 8 (Pages 13-16): November 14, 1994 Memorandum
This is a four-page memorandum from the third party to senior management of
the CVRD in response to document no. 9; it has the same characteristics as
documents 10 and 12.
Section 22(3)(b) is relevant, because the memorandum concerns information
compiled for an investigation into a possible violation of law. In this
limited sense, such information supplied by a third party to a public body can
be construed as falling into this category of exempt record. In this case, the
third party was supplying information to his superiors that they had requested
from him.
Section 22(3)(g) contains the presumption against disclosure of personal
information that consists of personal recommendations or evaluations, character
references or personnel evaluations about the third party. Since the third
party provided this information to management of the CVRD, I do not see any way
in which it could be found to fall into this category of excepted record. For
this exception to be activated, the personal information about a third party
must be provided by someone other than the third party himself or herself.
Section 22(3)(d) concerns personal information that relates to employment,
occupational, or educational history. I find that the substance of this record
falls into this category, since it describes the work-related activities of the
third party as an employee of the CVRD. Thus disclosure of this information
would be an unreasonable invasion of the privacy of the third party under
section 22(1).
Document No. 9 (Pages 17-19): November 9, 1994 Memorandum
This is a memorandum, with supporting documentation, from senior management of
the CVRD to the third party. As per my discussion above and below of these
separate sections, I find that sections 22(3)(b) and (d) create a presumption
that disclosure of this personal information would be an unreasonable invasion
of the third party's personal privacy under section 22(1).
Document No. 10 (Pages 20-24): October 4, 1994 Memorandum
This memorandum, with supporting documentation, is a response by the third
party to a request for information from management of the CVRD. It is very
similar to Document No. 12 in this respect and, in my judgment, the same
conclusions can be drawn about the CVRD's attempted use of exceptions.
Section 22(2)(f) weighs against disclosure, because there is implicit evidence
that the information in this record was supplied in confidence.
Section 22(3)(b) is relevant, because the memorandum concerns information
compiled for an investigation into a possible violation of law. In this
limited sense, such information supplied by a third party to a public body can
be construed as falling into this category of exempt record. In this case, the
third party was supplying information to his superiors that they had requested
from him.
Section 22(3)(g) contains the presumption against disclosure of personal
information that consists of personal recommendations or evaluations, character
references or personnel evaluations about the third party. Since the third
party provided this information to management of the CVRD, I do not see any way
in which it could fall into this category of excepted record. For this
exception to be activated, the personal information about a third party must be
provided by someone other than the third party himself or herself.
Section 22(3)(d) concerns personal information that relates to employment,
occupational, or educational history. I find that the substance of these
records falls into this category, since it describes the work-related
activities of the third party as an employee of the CVRD. Thus disclosure of
this information would be an unreasonable invasion of the privacy of the third
party.
Document No. 11 (Page 25): October 3, 1994 Memorandum
This one-page letter largely concerns the handling of a process then underway.
The CVRD has claimed that five separate sections of the Act prevent disclosure.
Because of the nature of the document, it is difficult to see how any of these
exceptions have generic application to this record. However, there is a mosaic
effect at work in this inquiry where the disclosure of one piece of the puzzle
may disclose everything. Thus, I find that this record must be withheld under
section 22(3)(d).
Document No. 12 (Pages 26-33): September 30, 1994 Memorandum
This two-page memorandum is about the work activities of the third party with
accompanying documentation. The CVRD has sought to apply five separate
exemptions to this record. Section 22(2)(f) weighs against disclosure, because
there is implicit evidence that the information in this record was being
supplied in confidence.
Section 22(3)(b) is relevant, because the memorandum concerns information
compiled for an investigation into a possible violation of law. In this
limited sense, information supplied by a third party to a public body can be
construed as falling into this category of exempt record. In this case, the
third party was supplying information to his superiors that they had requested
from him.
Section 22(3)(g) contains the presumption against disclosure of personal
information that consists of personal recommendations or evaluations, character
references or personnel evaluations about the third party. Since the third
party provided this information to management of the CVRD, I do not see any way
in which it could fall into this category of excepted record. For this
exception to be activated, the personal information about a third party must be
provided by someone other than the third party himself or herself.
Section 22(3)(d) concerns personal information that relates to employment,
occupational, or educational history. I find that the substance of these
records falls into this category, since it describes the work-related
activities of the third party as an employee of the CVRD. Thus disclosure of
this information would be an unreasonable invasion of the privacy of the third
party.
The burden of proof
The applicant had the burden of proof in this inquiry to establish that
disclosure of the personal information involved would not be an unreasonable
invasion of the personal privacy of the third party. Since the applicant
simply asserted that this would not be the case, I find that he did not meet
his burden of proof. In particular, the applicant has not rebutted the
presumption against disclosure established under various parts of section 22(3)
of the Act. Having read the records myself, I do not see how he could have
done so under section 22. Thus I find that disclosure of the information
contained in documents 1, 7, 8, 9, 10, 11, and 12 would be an unreasonable
invasion of the third party's personal privacy under section 22(1) of the
Act.
I am satisfied that the Cowichan Valley Regional District has met its burden
of proof to establish that disclosure of the information in documents 2 to 4
would reveal the substance of deliberations of a in camera meeting, as
contemplated in section 12.1(1)(b).
9.
Order
I find that the Cowichan Valley Regional District is required under section 22
of the Act to refuse access to documents 1 and 7 to 12. I also find that the
CVRD is authorized, under section 12.1, to refuse access to documents 2 to 4.
Under section 58(2)(c), I require the head of the CVRD to refuse to give the
applicant access to documents 1 and 7 to 12. Under section 58(2)(b), I confirm
the decision of the head of the CVRD to refuse to give the applicant access to
documents 2 to 4.
January 25, 1996
David H. Flaherty
Commissioner