Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 173-1997
July 14, 1997
INQUIRY RE: A decision by the District of Campbell River to withhold
records relating to a former employee from a media applicant
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.oipc.bc.ca
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner (the Office) on April 10,
1997 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a request for review of a
decision of the District of Campbell River (the District) to withhold records
relating to a former employee.
2. Documentation of the inquiry process
Dan MacLennan, a reporter with the Courier-Islander in Campbell River
(the applicant), made a written request to the District on August 2, 1996 for
"details of the city's severance agreement with former Fire Chief [the third
party]." The District replied on August 9, 1996 to acknowledge receipt of the
request and to inform the applicant that it had given notice to a third party
under section 23 of the Act. The District also indicated that it would advise
the applicant in September if there would be any delay in responding within the
thirty days allowed by the Act.
The District responded to the applicant on December 18, 1996 by refusing
access to the requested records. The District indicated that the request "does
not refer to a specific record but rather to details of the city's severance
agreement with former Fire Chief [the third party]." The District told
the applicant that, while the requested record did not exist, it was meeting
its obligation to assist applicants by confirming that it did have a record in
the nature of a Final Release between the District and the third party.
The applicant requested a review of this decision on January 10, 1997.
Mediation was not successful and an inquiry was scheduled for April 2, 1997.
This date was changed to April 10, 1997 at the request of the public body.
3. Issue under review at the inquiry
The issue under review in this inquiry is the District's decision to apply
sections 14 and 22 of the Act to the records in dispute. These sections read
as follows:
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 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
(f) the personal information has been supplied in confidence,
....
(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
Section 57 of the Act establishes the burden of proof on the parties in this
inquiry. Under section 57(1), where access to the information in the record
has been refused under section 14, it is up to the public body, in this case
the District, to prove that the applicant has no right of access to the record
or part of the record. Under section 57(2), where access to information in a
record has been refused under section 22, 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 records in dispute
The District provided me with five pages of records relating to the
applicant's request for records pertaining to the third party: two one-page
letters from a law firm; a two-page "Final Release" setting out the terms of an
agreement between the District and the third party; and a one-page Schedule
summarizing the salary and benefits paid to the third party for a specified
period of time. A covering letter to this Office is numbered one and the
documents in dispute are numbered two to six. The District has asked me to
describe the record "simply as a Final Release with supporting
documentation."
5. The applicant's case
The applicant wants access to the District's severance agreement with its
former Fire Chief, whom it terminated early in 1995, shortly after a consultant
completed an apparently "oral" review of the management of the Fire Department.
According to the applicant, "no reason was given for [the Fire Chief's]
termination." The applicant's view is that the District "has to date been able
to prevent any public examination of what transpired" between it, the fire
department, and the then Fire Chief:
The District was therefore able to completely avoid any public accounting of
circumstances surrounding a publicly-funded emergency response agency upon
which all Campbell River citizens and taxpayers depend for the protection of
their lives and property.
I have presented below, as I deemed it appropriate to do so, the applicant's
submission on specific sections of the Act.
6. The District of Campbell River's case
The District indicated in its December 18, 1996 response that the record at
issue (the Final Release) was withheld under section 14 because it "was
prepared by and with the advice of legal counsel and disclosure of the record
is not consistent with the District's right to claim solicitor client privilege
in deciding to proceed with the release." The District also stated that the
record was withheld under section 22 of the Act, because "[d]isclosure of the
record would be an unreasonable invasion of the [the third party's] personal
privacy and the Final Release does not relate to [the third party's] position,
function or remuneration as former Fire Chief for the District."
I have presented below, as I deemed it necessary to do so, specific
submissions of the District on the application of sections of the Act to the
records in dispute.
7. The third party's case
I received an in camera submission from the third party, which I have
carefully reviewed.
8. Discussion
Sections 4 and 6: Information rights / duty to assist
applicants
I agree with the applicant that the District's attempt to argue that it has no
records pertaining to the severance arrangement with the departed Fire Chief is
"an attempt to obfuscate rather than to assist." I deem the District's
argument unworthy of further discussion in the circumstances of this inquiry.
I also agree with the applicant that the District has not assisted him in a
timely fashion that meets the accountability goals set out in section 2 of the
Act. He would have been well advised to complain to my Office about the delays
that he encountered. I strongly encourage the District to assist future
applicants, including the present one, with greater diligence. (See Submission
of the District, paragraphs 4.25-4.27)
Section 14: Legal advice
The District submits that the terms and conditions for the Fire Chief's
leaving its employ were the subject of legal advice sought by the District as
reflected in two one-page letters involving a law firm. (Submission of the
District, paragraphs 4.06-4.24) Based on the contents, I agree with the
District's submission regarding these letters.
In terms of the accountability goals set out in section 2 of the Act, I reject
the District's submission that disclosure of the record known as the Final
Release would have the effect of increasing costs to the taxpayers, since
"third parties would be less inclined to settle these matters if there was no
assurance of confidentiality resulting in greater litigation costs, and the
possibility of a larger amount being awarded at trial." The public has a
fundamental right to know how its money is being spent, especially with respect
to severance agreements. If a third party wishes to proceed to a trial, then
full disclosure will result in any event. (Submission of the District,
paragraph 4.10)
There is, further, a significant difference between the correspondence that
passed between the District and its legal counsel (records 2 and 3 as withheld
above) and the Final Release with schedule (records 4, 5, and 6) that was
executed by the former Fire Chief.
Section 22: Disclosure harmful to personal privacy
The applicant argues that disclosure of the information in dispute will not be
an unreasonable invasion of the privacy of the Fire Chief, not least because of
the language of section 22(2)(a). Furthermore:
I believe that the long overdue need for public scrutiny, and District
accountability, easily constitutes a reasonable invasion of a third party's
privacy. [The Fire Chief] was an employee of the District and the taxpayers of
Campbell River. The taxpayers have every right to know details of [his]
termination, because they paid for it and because they were denied any public
accounting of the events leading up to his termination.
The District seeks to argue that the payments to the departed Fire Chief did
not constitute "remuneration" within the meaning of section 22(4)(e) of the Act
and thus cannot be disclosed under section 22(1). (Submission of the District,
paragraphs 4.11-4.24) This is contrary to my finding in Order No. 46-1995,
July 5, 1995, p. 4, as follows, from which I find no persuasive reason to
deviate:
Severance payments or agreements, whenever made, can and should be construed as
`remuneration.' These are payments customarily made `in lieu of notice' for
services that would have been performed during the notice period had the
employer required the employee to continue work during that period. In my
view, such payments constitute `remuneration' under the Act whether an
agreement is reached while the employee is still employed or after he or she
has left, and whether an agreement is reached before or after litigation has
been commenced.
I agree with the submission of the applicant that the key fact is that "the
Third Party left the employ of the District with some form of compensation,
severance, buy-out, pension, or other such agreement which came as a direct
result of his employment with the District." In my view, the Final Release
accomplishes the purpose of a severance agreement; there is no substantial
difference.
Severance agreements
I have made several previous Orders to the effect that severance agreements
should be disclosed in the public interest. In my view, these have
precedential value in the present matter, in particular Order No. 24-1994,
September 27, 1994, p. 12:
My Order will result in some invasion of the privacy of those who received
severance payments. But, I have concluded, under section 22(2)(a), that the
public interest in knowing how public money has been spent should prevail for
those non-unionized staff affected by the closing of Shaughnessy Hospital....
The key variables in this inquiry, in my view, remain the fact that public
money was being spent in supplying certain employees with a benefit, the
government of British Columbia and the Ministry were instrumental in the
appointment of the Public Administrator to close the hospital, and influential,
at least, in the Public Administrator's exercise of the powers of the hospital
board to effect the closure by negotiating the severance packages with its
employees.
In the context of the present inquiry, I fully endorse the summary statement
of the applicant to the effect that "I feel the taxpayers have a right to know
how much they paid and what they paid for." (Reply Submission of the
Applicant)
Review of the records in dispute
There are five pages in dispute in this inquiry. For reasons discussed above,
I find that the two-page "Final Release" must be disclosed to the applicant,
because it is essentially a severance agreement and must be disclosed under the
Act. The page headed "salary and benefits" of the former Fire Chief for a
specific time period must be disclosed except to the limited extent that it
reveals information unique to him as opposed to other employees of the
District.
Procedural objections
The District objects to the timelines set for submissions in this inquiry and
requested various adjournments. My basic response is that my Office has an
established set of rules and procedures that apply to all parties; in
particular, they require speedy action in order to prevent the kinds of delays
in processing an access request that have characterized the present inquiry.
The District has devoted considerable efforts to debating various words set
out by a Portfolio Officer in his fact report as somehow prejudicing the
presentation of the issues in this inquiry. With respect, these disputes are
irrelevant to my determination of the matters at issue in this inquiry. A fact
report is background information and a chronology of events to assist the
parties in the preparation of these submissions by attempting to isolate the
matter in dispute. Given that I am guided in my deliberations by the
submissions of the parties, fact report contents may be amended by the parties,
but are not binding on me.
9.
Order
I find that the District of Campbell River is authorized to refuse access to
certain records in dispute under section 14 of the Act. Under section 58(2)(b)
I confirm the decision of the head of the District of Campbell River to refuse
access to the records numbered 2 and 3.
I also find that the District of Campbell River is required to refuse access
to certain portions of the records in dispute under section 22. Under
section 58(2)(c) I require the head of the District of Campbell River to refuse access
to portions of the record
numbered 6.
I also find that the District of Campbell River was not required to refuse
access to all of the information in the records in dispute under sections 14
and 22(1) of the Act. Under section 58(2)(a) I order the District of Campbell
River to disclose the Final
Release and attached schedule, with severances to the schedule in accordance
with the notations that I have made on that record.
July 14, 1997
David H. Flaherty
Commissioner