Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 186-1997
August 20, 1997

INQUIRY RE: The Public Service Employee Relations Commission's decision to withhold records relating to a classification review of employees of Crown Victim Witness Services

Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.oipcbc.org

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 June 19, 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 the decision by the Public Service Employee Relations Commission (PSERC) to withhold all records relating to a reclassification review of employees of the Crown Victim Witness Services, Criminal Justice Branch, Ministry of Attorney General.

2. Documentation of the inquiry process

The applicant made a written request to PSERC on February 10, 1997 for "all records and information related to the matter of the proposed reclassification of certain positions within Crown Victim Witness Services, Criminal Justice Branch, Ministry of Attorney General, which matter was considered at the December 11, 1996 meeting of the SEHT [Social Education Health Team] Committee." PSERC responded on March 5, 1997 by informing the applicant that "records referring to the classification review of Crown Victim Witness Services employees in the Criminal Justice Branch of the Ministry of Attorney General are being withheld pursuant to [sections 17(1)(c) and 17(1)(e)] of the Act as they relate to personnel administration matters as yet to be implemented and that are subject to negotiations with the British Columbia Government and Service Employees' Union." The applicant wrote to my Office on March 20, 1997 to request a review of PSERC's decision.

3. Issue under review at the inquiry

The principal issue before me is whether PSERC properly applied section 17 of the Act, the relevant portions of which read as follows:

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:

...
(c) plans that relate to the management of personnel of or the administration of a public body and that have not yet been implemented or made public;
...


(e) information about negotiations carried on by or for a public body or the government of British Columbia.

Section 57 of the Act establishes the burden of proof on parties in an inquiry. Under section 57(1), where access to records has been refused under section 17, it is up to the public body, in this case PSERC, to prove that the applicant has no right of access to the records or parts of the records.

4. The records in dispute

The records in dispute consist of a full binder of correspondence, worksheets, questionnaires, victim impact statements, rating sheets, comments, ratings, evaluations, draft job descriptions, and mail messages concerning employees in the Crown Victim Witness Services (CVWS).

5. The applicant's case

The applicant's basic position is that PSERC is demonstrating "flagrant disregard for the intent of the Act" by not providing him with the records in dispute:

There can be little question that the intent of the Act is to allow the public to have full knowledge of the conduct of their business by their elected and hired `servants' and I submit that the requested info should be available without question.

The severely limited exceptions to the general spirit of the Act require convincing proof that some harm to the public good could reasonably be expected to result from the release of the info and I would request that the commissioner pay particular attention to the words: `reasonable' and `harm' in his inquiry.

The applicant also says that PSERC has not discharged its duty to apply the principle of severance to the records in dispute.

6. The Public Service Employee Relations Commission's case

PSERC has withheld the records in dispute on the basis of sections 17(1)(c) and (e) of the Act. In its view, such records "relate to personnel administration matters as not yet implemented and that are subject to negotiations with the British Columbia Government and Service Employees' Union."

PSERC states that compensation and classification studies involve the Social Education Health Team (SEHT), an inter-ministry advisory committee. It includes representatives of PSERC as the employer and bargaining agent and various Ministry representatives:

The advice provided by this committee directly impacts the employer's bargaining proposals and the outcome of negotiations. Additionally, it is PSERC's prerogative not to proceed on any matter under review by the committee and therefore, such matters may not be taken forward to Treasury Board and the union.

PSERC submits that "it is detrimental to the bargaining position of the employer if records revealing recommendations or advice from ministries, the SEHT or from PSERC related to matters that involve negotiations with public service unions are released." In its view, that is the purpose of section 17(1)(e) of the Act.

7. Discussion

The context for this inquiry

The applicant says that he is acting on behalf of two employees of the Criminal Justice Branch of the Ministry who asked that their job classifications, as caseworkers with Crown Victim Witness Services, be reviewed. The job classification review was apparently conducted by the Human Resources Branch of the Ministry, which presented its findings at a PSERC committee meeting. The two employees have yet to learn the outcome of the meeting and suspect "that perhaps they are being dealt with in a manner which could be considered less than forthright." This request for access resulted from the desire for relevant information.

Section 17(1)(c): Plans that relate to the management of personnel of or the administration of a public body and that have not yet been implemented or made public

PSERC is relying in part on this section to prevent disclosure of the records in dispute: "The premature release of these records prior to review or decision of Treasury Board would be detrimental to the relationship between the employer and employee in that it may cause expectations that are not realized." The applicant submits that the latter consideration has no validity in the context of section 17. He suggests that the structure used for resolving classification issues is so well established that "the postulation that release of the info might compromise the position of PSERC with result that the two employees (or anyone else) might somehow be able to skew the outcome of the review in their favour is absurd in the extreme."

Section 17(1)(e): Information about negotiations carried on by or for a public body or the government of British Columbia

PSERC submits that "it is detrimental to the bargaining position of the employer if records revealing recommendations or advice from ministries, the SEHT or from PSERC related to matters that involve negotiations with public service unions are released." In its view, that is the purpose of section 17(1)(e) of the Act.

The reply submission from the applicant claims that the certified bargaining agent, the BCGEU, "has stated that they have no interest in the matter whatsoever, and have offered congratulations in advance to the employees for accomplishing a review without the usual union assistance."

Review of the records in dispute and the principle of severing

The applicant submits that PSERC failed to consider the principle of severing records. I agree. In this inquiry, I was simply given a large binder containing some
100-200 pages of information as representing the records in dispute. This was accompanied by a very brief and general submission addressing the nature of the records and the justification for non-disclosure. There is nothing before me to suggest that PSERC considered whether some of the withheld documents could reasonably be severed under section 4(2) of the Act. I note that, under that provision, where information excepted from disclosure can reasonably be severed from a record, the applicant has a right of access to the remainder of that record.

One of my general responsibilities under the Act is to monitor how the Act is administered to ensure its purposes are achieved and to ensure, among other things, that public bodies fulfill the duties which have been imposed on them. In this case, I have concluded that PSERC has failed to exercise its duty to consider whether information which it claims is excepted under section 17 of the Act can reasonably be severed from the records in dispute.

8. Order

I conclude that the Act applies to the records in dispute. I find that the Public Service Employee Relations Commission has not performed its duties under the Act to review the records in dispute specifically to apply section 17 to the information in the records and, under section 4(2), to determine whether information covered by an exception can reasonably be severed.

Under section 58(3)(a) of the Act, I require the Public Service Employee Relations Commission to perform its duties under the Act to review the records in dispute on the basis that the Act applies to them, to consider the application of section 17, and to determine whether there is information excepted from disclosure that can reasonably be severed from any of the records in dispute.

Under section 58(4), the following conditions apply to this Order:

a) The Public Service Employee Relations Commission complete its review of the records in dispute within 14 days of the date of this Order; and

b) On completion of the review, the Public Service Employee Relations Commission forthwith provide my Office with copies of the records indicating what exceptions it is applying and what information it has severed from any records to be disclosed.

I retain jurisdiction over this matter. Once PSERC complies with this Order, I will determine whether PSERC is authorized to refuse access under section 17 of the Act.

August 20, 1997

David H. Flaherty
Commissioner