Order 01-19
Quicklaw Cite: [2001] B.C.I.P.C.D. No. 20WORKERS' COMPENSATION BOARD
David Loukidelis, Information and Privacy Commissioner
Order URL: http://www.oipc.bc.ca/orders/Order01-19.html Office URL: http://www.oipc.bc.ca ISSN 1198-6182 Summary: Applicant sought copies of interview notes taken by WCB's accident investigator, and names of witnesses found in the investigator's accident investigation report, regarding the workplace death of her husband. Investigation was conducted in 1998. After close of inquiry, WCB abandoned reliance on s. 15(1). WCB continued to withhold personal information of some witnesses under s. 22(1). Witnesses' identities are known to each other and the witnesses are known to the applicant. WCB not required to withhold personal information under s. 22(1), including factual observations. Section 22(5) not applicable. Key Words: personal information - unreasonable invasion of personal privacy. Statutes Considered: Freedom of Information and Protection of Privacy Act, ss. 22(1), 22(2)(b), (e), (f), (g), (h), s. 22(3)(b) and (d), s. 22(5); Workers Compensation Act, ss. 156(1) and (2). Authorities Considered: B.C.: Order 00-02, [2000] B.C.I.P.C.D. No. 2; Order 00-42, [2000] B.C.I.P.C.D. No. 46; Order 01-15, [2001] B.C.I.P.C.D. No. 16.
1.0 INTRODUCTION[1] This inquiry springs from a tragedy. The applicant's husband was electrocuted in a workplace accident, which the Workers' Compensation Board ("WCB") investigated under the Workers Compensation Act ("WCA"). The applicant later made a request, under the Freedom of Information and Protection of Privacy Act ("Act"), to the WCB for the "accident report" into her husband's fatal accident. In response, the WCB provided the applicant with much of its Accident Investigation Report ("AIR") and some of the records related to its accident investigation. It withheld from the AIR all of the investigator's notes of his interviews with witnesses and identifying information of the witnesses and others.[2] The disclosed portions of records included a one-page "Description of Event" and two pages of "Factual Information". They also included a page of "Analysis" of what happened and two pages setting out conclusions as to the cause of the accident. The "Factual Information" narrates the circumstances surrounding, and general facts of, the accident. The facts set out in that section are attributed to witnesses, whose identities were severed under s. 22 and who are referred to in the severed copy as "A", "B", "C" and so on. The "Factual Information" also provides detail as to the dry land log sort methods used at the site of the accident. One of the records disclosed to the applicant is a workplace accident report completed by the employer for its own purposes. It says that no one witnessed the actual fatal shock. [3] The AIR includes a description of the tragic accident in which the applicant's husband was killed, the investigator's findings, factors that contributed to the accident, a diagram of the worksite at which the accident took place, details of the people interviewed (name, address, date of birth), photographs of the accident site, autopsy report, inspection reports, an incident report by B.C. Hydro, the dispatch log from the local fire department, coroner's notes, a report on a previous accident involving the employer and the employer's report of the accident in which the applicant's husband was fatally injured. [4] The investigator's notes record facts that were related to him by the various witnesses. They address matters such as worksite conditions, the general course of operations there and on the day of the fatal accident, the circumstances surrounding the accident, what happened after the accident (including in terms of emergency response) and so on. [5] The records under review in this case were the investigator's interview notes with accident witnesses and the severed portions of the AIR, from which the WCB withheld information under ss. 15(1) and 22(1) of the Act. The applicant requested a review of that decision by this Office and, mediation not being successful in resolving the issues in dispute, I held a written inquiry under s. 56 of the Act. [6] In his submissions, counsel for the applicant sought to cross-examine the individuals who swore affidavits on behalf of the WCB. By a letter dated April 24, 2001, I invited the WCB to make submissions on this request, noting that I was inclined to permit cross-examination of the WCB's principal witness. The WCB responded by saying that, a decision not to prosecute respecting the accident having been taken, it abandoned reliance on s. 15(1) of the Act in relation to the disputed information. It also disclosed most of the witness statements, in full or in severed form. It also abandoned its arguments on ss. 17 and 21, which it had raised for the first time in its initial submissions in this inquiry. The WCB continued, however, to refuse to disclose third party personal information of some witnesses to the accident on the basis that these individuals had not consented to disclosure of their personal information. In light of the WCB's change of position, it is not necessary for me to consider the s. 15(1) issues raised in the Notice of Written Inquiry, nor the ss. 17 and 21 issues the WCB sought to raise in its initial submission.
2.0 ISSUE[7] The only issue in this case is whether the WCB is required by s. 22(1) of the Act to refuse to disclose personal information to the applicant. Under s. 57(2) of the Act, the applicant bears the burden of establishing that disclosure of the disputed personal information would not unreasonably invade the personal privacy of third parties.
3.0 DISCUSSION[8] 3.1 WCB's In Camera Material - I will first deal with a procedural issue.[9] The applicant's lawyer objected to the WCB filing two in camera affidavits as part of its initial submission. He argued, at paras. 2 and 3 of his reply submission, as follows:
Canada is a liberal Parliamentary democracy with a common law tradition and a Charter of Rights & Freedoms. My client cannot be expected to participate in a proceeding by being asked to make submissions in reply to a censored submission and undisclosed affidavit evidence. This is only the 2nd time in 27 years of legal practice that I have encountered such a thing. The first time was a hearing before the Federal Security Intelligence Review Committee (SIRC) regarding CSIS, concerning a security clearance. This matter isn't even remotely comparable. [emphasis in original] [10] My own review of the WCB's in camera affidavits left me in considerable doubt as to why they should be accepted in camera, with the exception of the unsevered copy of some of the records in dispute attached to one affidavit. I therefore offered the WCB the opportunity to withdraw the affidavits and submit new ones, to consent to their disclosure or to make further submissions as to why the affidavits should be received in camera. In response, the WCB consented to the disclosure of one affidavit in full and of the other in severed form, and provided reasons to why the remainder of that affidavit should be received in camera. [11] I accepted these reasons and provided both affidavits to the applicant's lawyer, so that he could submit a reply to that evidence. He did submit a reply and in doing so objected strenuously (at para. 2 of his further reply submission) to the severing of the one affidavit:
My 49 year old widowed client has been requested to reply to new evidence and a submission that has been selectively edited. This is a shameful disregard for a widow's rights to openness, information and fairness and a compromise of the rules of natural justice, in a parliamentary democracy, at the beginning of the 3rd millennium. [emphasis in original] [12] Despite this, s. 56(2) of the Act expressly gives me the authority to conduct an inquiry in private and s. 56(4)(b) gives me the authority to decide whether a "person is entitled to ... have access to or to comment on representations ... by another person". Moreover, s. 47(3)(a) of the Act explicitly prohibits me from disclosing, in an inquiry or order, any information that the public body is required or authorized to refuse to disclose under the Act. In this case, I decided that the relatively small amount of information the WCB sought to submit in camera was properly received in camera. To have disclosed it would have, at the very least, risked pre-empting my decision on the merits. [13] 3.2 Personal Privacy Issues - Section 22(1) of the Act requires a public body to withhold personal information "if the disclosure would be an unreasonable invasion of a third party's personal privacy". In making this decision, a public body must consider whether aspects of s. 22(3) are relevant. It must also consider all relevant circumstances, including those found in s. 22(2).
[14] The relevant portions of s. 22 read as follows:
[15] I should note here that, when the WCB abandoned its reliance on s. 15(1), as noted above, it told me that it had not been able to contact four of the witnesses to get their consent to disclosure of this same information. It also said it was withholding statements by two others, as it had not been able to obtain consents. It said, therefore, that it was withholding those witnesses' information under s. 22(1). This is at odds with the WCB's original submissions in the inquiry: the WCB initially told me that all but one of the accident witnesses had consented to disclosure of their names and witness statements. At all events, the WCB argued its case throughout as if none of the witnesses had consented and I have dealt with the s. 22(1) issue on that basis. [16] It is convenient to summarize here the applicant's arguments on s. 22. Her counsel points out that the applicant cannot sue the WCB, or anyone else, in connection with her husband's death. Nor can she appeal to the courts any WCB decision or decision by the Crown prosecutor not to prosecute anyone over her husband's death. As a result, the applicant's legal counsel argues, the WCB has an especially high duty to be accountable to the public. [17] The applicant's lawyer also pointed out that there were apparent inconsistencies in the severing of names and other information in the records. The WCB severed the address of the husband's company and the names of witnesses and other company employees, for example, but disclosed their occupations and the names of certain other employees of the applicant's husband's company, as well as those of the WCB and BC Hydro. [18] The lawyer says that ss. 22(2)(b) and (c) are relevant circumstances, although he addresses only s. 22(2)(b), to the effect that it would promote public health and safety for a deceased worker's spouse and family to have all the information needed to check the facts surrounding the worker's death. There are not enough government workers to do this properly, he says, and in any case government workers are no substitute for concerned citizens (para. 20, initial submission).
Nature of the Personal Information Involved[19] In order for s. 22(1) to apply, a public body must first show that the information in question is "personal information". The Act's definition of this term is "recorded information about an identifiable individual". The definition sets out a non-exhaustive list of various kinds of personal information. These include the name or address of an individual and an individual's personal views or opinions (unless they are about someone else, in which case they are the personal information of the other individual). [20] The WCB said the following at para. 16 of its initial submission:
The Board also considers the information of each witness to be their personal information. Thus irrespective of its concerns about prosecution proceedings, in the absence of consent by a witness to disclosure of their name or evidence, the Board considers carefully whether it should disclose such information to another person. [21] The WCB contends that s. 22(1) of the Act requires it to withhold the witnesses' names and notes of their interviews:
45. It is clear that the witnesses to the accident are third parties as contemplated by s. 22(1). Furthermore the witnesses' names and evidence are their personal information. The evidence is personal information because it is in essence the witnesses' own recollections and opinions as to the circumstances of the accident. [22] Kevin Murray deposed that the WCB's Prevention Division considers witness statements, or accounts or perceptions of worksite practices, to be the witnesses' personal information. His view on whether this is "personal information" is not, of course, especially relevant, since this one of the issues I must decide. Turning to that issue, the remaining information withheld from the AIR consists mainly of several witness's names, occupations, addresses, telephone numbers, dates of birth and a WCB employee number. As a result of the later decision to release, the WCB disclosed 16 of the 19 pages of investigator's handwritten interview notes, with some witness information still severed (names, contact information, occupation information, work history, and dates of birth of some 12-14 individuals). [23] The WCB continues to withhold 3 of the 19 pages of the investigator's handwritten notes of his interviews with the witnesses. These notes contain the names or telephone numbers, or both, of several witnesses. They also include information on witnesses' work histories and information on their employment duties, what people were doing at the time of the accident, the condition of the worksite (both generally and at the time of the accident), accounts of the accident itself - including what the workers said and did at the time - and information on an earlier incident which had some similarity to the fatal accident. Some of the withheld information relates to the duties of the applicant's late husband, and his actions, before the accident. Much of this information corresponds to accounts of the accident in the AIR, which the WCB disclosed.
Witnesses' Factual Observations[24] I do not agree that witnesses' observations about relevant facts - namely daily events and practices at the worksite and events surrounding the fatal accident - must be withheld under s. 22(1) or (3). These observations form approximately half of the remaining interview notes (i.e., one page). Such information does not qualify as the "personal views or opinions" of those making the statements. Nor are these factual statements otherwise personal information of the individuals making the statements. [25] The notes also contain descriptions by the workers about their duties and their actions (and those of other workers) before, during and after the accident, including the duties and actions of the applicant's husband. I do not consider that an individual's recounting of his or her observations of an accident must be withheld under s. 22(1). I made a similar finding at p. 31 of Order 00-42, [2000] B.C.I.P.C.D. No. 46:
There may be cases where a witness statement of this kind contains personal information of a witness, such that s. 22 considerations arise. But an individual's statements as to his or her perceptions of what happened in an accident (including who said what at the time, about fault or other accident-related matters) do not by any stretch qualify as personal information of that witness. [26] In this case, the contents of the witness's statements of what happened, when it happened and how it happened are not the personal information of that individual. The same applies to the information on the previous, similar, incident, as described in the other two pages of interview notes. [27] A witness's statements about what she or he did - or when or how - are the personal information of that employee, even though they are factual observations about how that person performed his or her employment duties. Similarly, one employee's statements about the where, when and how of another employee's performance of her or his job constitutes the personal information of that other employee.
Witnesses' Employment History[28] The interview notes contain a small amount of personal information on some workers' employment histories, including disciplinary information. Although the WCB did not so argue, this personal information clearly falls under the presumed unreasonable invasion of personal privacy under s. 22(3)(d) of the Act.
Investigation Into A Possible Violation of Law[29] The WCB says that Kevin Murray's affidavit establishes that the personal information was compiled and is identifiable as part of an investigation into a possible violation of law under the WCA, such that s. 22(3)(b) applies to all of it. That section presumes that disclosure would be an unreasonable invasion of a third party's privacy if
... 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, [30] Kevin Murray's affidavit did not specify which sections of the WCA serve as "law" for the purposes of s. 22(3)(b). I am, however, persuaded that the accident investigation was an investigation into a possible violation of law. I am satisfied, therefore, that the rebuttable s. 22(3)(b) presumption applies to the personal information comprising certain personal particulars and contact information (names, birth dates, addresses or telephone numbers).
Relevant Circumstance[31] The Act requires public bodies, in deciding whether personal information must be withheld under s. 22(1), to take into account all relevant circumstances, including those set out in s. 22(2). [32] The applicant argues that s. 22(2)(b) applies. That section requires a public body to consider whether "the disclosure is likely to promote public health and safety or to promote the protection of the environment". The applicant has, of course, received most of the AIR, which sets out the facts of the accident and the investigator's findings (including contributing factors and inspection reports which order the employer to carry out certain corrective actions), and most of the interview notes. The remaining interview notes might shed some light on the events of the day, and clarify who saw what and when, but this does not mean the notes themselves would promote public health or safety. I do not find that s. 22(2)(b) is relevant here. [33] The WCB argues that ss. 22(2)(e), (f), (g) and (h) are relevant circumstances favouring withholding the information in dispute. As for s. 22(2)(e), the WCB argues it is reasonable to conclude that the applicant would try to talk to the witnesses about the accident, that it is reasonable to conclude that this would upset the co-workers and that, as a result, the co-workers would suffer "harm" (para. 54, initial submission). The WCB's evidence on the applicant's possible motives is based on hearsay and its views on the applicant's possible actions and the co-workers' reactions are purely speculative. It is equally reasonable to conclude that witnesses would not be in the least upset if the widow approached them. [34] Even if the WCB is correct in suggesting that they would be upset, however, the equation of upset with "harm" threatens to trivialize the concept of harm. As I noted in Order 00-02, [2000] B.C.I.P.C.D. No. 2, grave mental distress or anguish may constitute a threat to the mental health of an individual for the purposes of s. 19(1)(a) of the Act, but upset and harm are very different things. See, also, Order 01-15, [2001] B.C.I.P.C.D. No. 16. Moreover, even if mere upset qualified as "harm", I fail to see how any exposure to that kind of harm would be unfair in this case, as required by s. 22(2)(e). I therefore find that s. 22(2)(e) is not relevant here. [35] The WCB says the evidence shows that the witnesses' names and statements were provided in confidence and that s. 22(2)(f) is therefore a relevant circumstance. This submission appears to flow from para. 6 of Kevin Murray's public affidavit, which reads as follows:
6. A Prevention Division investigation officer obtains information from accident witnesses in confidence. The confidentiality arises from the standard practice of the Board, from the provisions of Part 3 of the Act respecting personal information and from the provisions of Part 3 of the WCAct respecting the confidentiality of employer and personal information obtained under and for the purposes of that Part.
[36] The WCB's also relies on ss. 156(1)(c) and (e) and s. 156(2)(b) of the WCA in support of this argument. Those sections read as follows:
[37] First, as regards para. 6 of Kevin Murray's affidavit, Part 3 of the Act is completely neutral as to whether or not personal information has been "supplied in confidence" as contemplated by s. 22(2)(f). It does not support the contention that the personal information in issue in this particular case was "supplied in confidence". [38] Nor do the quoted WCA provisions assist the WCB in this respect. Section 156(1) is a prohibition against disclosure of certain types of information received by WCB employees or agents in the discharge of their duties. It applies only to specified kinds of information. (As for the first, the information in dispute is not "work process" information as contemplated by s. 156(1)(c)). Second, s. 156(1)(e) merely begs the question of whether the personal information in dispute here was, in fact, "received in confidence by reason of the performance of any duty" or the exercise of any power under that Part of the WCA. The section does not say that information received by someone acting under that Part is deemed to have been received in confidence by reason only that the person was acting in the discharge of her or his duties. It is still necessary to show that the information was, in fact, received in confidence before the s. 156(1) disclosure prohibition is triggered. [39] The WCB initially argued that the fact that one of the witnesses continues to object to disclosure of his name and interview notes supports the view that s. 22(2)(f) is relevant. Moreover, the WCB argued (at para. 52, initial submission) that, although the other witnesses consented to the disclosure of their names and interview statements, they did so on the understanding that the widow's request
... was to assist her application for an I.W.A. pension. As that purpose had been satisfied, it is reasonable to conclude that the Applicant now has a different purpose in mind. The Board does not know whether the witnesses would now, if apprised of that the Applicant might have a different intent regarding the use of the withheld information, consent to its release. Therefore it cannot be concluded with confidence that paragraph 22(2)(f) does not apply to these witnesses. [40] At all events, the issue under s. 22(2)(f) is whether the personal information in question was "supplied in confidence" at the outset, not whether the witnesses would consent to disclosure now. The applicant's possible intended use of the personal information does not support an argument that the investigator conducted his interviews in confidence. Nor does the speculation in the above-quoted paragraph advance the WCB's case that, in effect, s. 22(2)(f) should be presumed to apply here unless it is shown not to. [41] The WCB did not provide any affidavit evidence from the investigator, nor from the witnesses, attesting to any conditions of confidentiality under which the interviews took place. Nor did it supply any written policies on its conduct of investigations, in confidence or otherwise. Kevin Murray's affidavit simply says "a Prevention Division accident investigation officer obtains information from accident witnesses in confidence." Again, this is not sufficient to establish that the specific personal information in issue in this case was, in fact, supplied in confidence. The information itself is not of a nature that suggests it is likely to have been supplied in confidence. I therefore find that s. 22(2)(f) is not relevant here. [42] The WCB says, in para. 49 of its initial submission, that s. 22(2)(g) is relevant. It only addresses this section obliquely, in para. 55 of its initial submission, by saying that the WCB attempts to protect the reliability of evidence obtained about an accident. It says the evidence may not be complete in this case, as the WCB has not completed its evidence-gathering nor has it reached a final conclusion about the accident's circumstances or causes. This misconstrues s. 22(2)(g). It is aimed at preventing harm to individuals that can flow from the disclosure of inaccurate or unreliable information about them. For example, a public body's records may contain unfounded rumours about someone, the disclosure of which could embarrass that individual. The focus is on whether personal information of that individual is inaccurate, not whether the WCB's evidence respecting an accident is accurate or reliable. In any case, the WCB did not aim this argument at specific information and did not explain how the information might be unreliable or inaccurate. Section 22(2)(g) is not relevant here. [43] The WCB initially argued s. 22(2)(h) is relevant, saying that, since a "quasi criminal prosecution" is still possible in this case, there are implications for the reputations of anyone "implicated in the evidence". It said the proper place for testing the statements is in court proceedings and it says that release of the information before such proceedings would be unfair and premature (para. 56, initial submission). Of course, the later decision not to prosecute has eliminated this argument. In any case, the WCB did not elaborate further on this argument and did not link specific portions of the withheld records to it. In my view, it is not enough simply to assert that disclosure would be unfair and premature. Having failed to particularize how disclosure of any of the factual observations in the witness statements would unfairly damage anyone's reputation, and my review of the statements having revealed nothing that leaps out as being the source of the kind of damage contemplated by s. 22(2)(h), I do not find that s. 22(2)(h) is relevant in this case.
Is the Applicant Entitled to More Information?[44] I found above that the witnesses' factual observations about the accident are not personal information and that s. 22 does not apply. The applicant is entitled to this information. As for statements by witnesses about the facts of what they did on the job, or what others did, I have concluded that the WCB is not required by s. 22(1) to refuse to disclose this information. In this case, the statements are factual and contain no evaluative aspect, in terms of anyone's job performance. It is, moreover, a relevant circumstance that the applicant is the next of kin of the deceased worker and legitimately wishes to know what happened on the fatal day. I do not find that disclosure of these bare facts of the day would, in this case, unreasonably invade the personal privacy of any of these workers. [45] By contrast, I find that none of the relevant circumstances (including those in s. 22(2)) favours disclosure of the personal information that I determined earlier is subject to the presumed unreasonable invasions of personal privacy under ss. 22(3)(b) and (d). The applicant has not persuaded me that any relevant circumstances rebut those presumptions. This finding applies to the WCB employee number and to witnesses' addresses, birth dates and telephone numbers. In the absence of any persuasive argument from the applicant as to why this personal information can be disclosed, I find that it must not be disclosed. This accords with my thinking in Order 00-42, at p. 31, where I found that third-party residential contact information should not be disclosed. [46] I also find that none of the relevant circumstances (including those in s. 22(2)) favours disclosure of information I determined earlier is subject to the presumed unreasonable invasion of privacy under s. 22(3)(d). Absent any persuasive argument from the applicant on why personal information consisting of employment history can be disclosed, I find that it must be withheld under s. 22(3)(d). [47] I do not find, however, that disclosure of the witnesses' names and occupations, in this case, would be an unreasonable invasion of their personal privacy. They were the applicant's late husband's co-workers. The material before me indicates she knows them and it is possible she already knows their occupations. Even if she does not, I do not find that disclosing this information constitutes an unreasonable invasion of their personal privacy in this case.
Summary of Personal Information[48] The WCB argued that it was not possible to prepare a summary under s. 22(5), given the nature of the information in the interview notes. I do not need to consider this section, given the above findings.
4.0 CONCLUSION[49] For the reasons given above, I make the following orders:
May 25, 2001 ORIGINAL SIGNED BY
David Loukidelis
 April 26, 2001 Information and Privacy Commissioner of British Columbia | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||