HR | Atlantic - Positive Change at Work

Public Sector Employees’ Right To Know

Sep 23, 2011

Right To Know Road SignRight To Know was a movement that first marked Right To Know Day in 2002 by freedom of  information advocates who strive to improve the accessibility of information held by governments around the world.  In Canada, this is addressed in each jurisdiction (federal, provincial and territorial) through legislation.  In Prince Edward Island, it is the Freedom of Information and Protection of Privacy Act (FOIPP Act).

With respect to workplace issues, public sector employers need to consider the application of FOIPP provisions to requests from employees and unions.  Here are some lessons we can take from workplace access to information cases:

Unions are special

Unions have a special relationship that can be distinguished from the general public:
In Ottawa-Carleton District School Board (2001), the Ontario Labour Relations Board recognized that “a certified union with bargaining rights is in a different relationship to the employees it represents than is the public at large”, likening the relationship to “a privy of the employees it represents which justified the disclosure of personal information such as terms and conditions of employment, educational qualifications, and performance evaluations.”

Unions have the right to the names of persons possessing certificates of qualification and apprenticeship

In Griffiths v. Nova Scotia (Department of Education), the Nova Scotia Court of Appeal upheld a lower court order that the Nova Scotia government must disclose this information.  The Court found that the disclosure of the names did not constitute an unreasonable infringement of a third party’s personal privacy.

Question: Do universities, colleges and other post-secondary training and training institutions or professional colleges have the same obligation to disclose this information to inquiring unions?

A Union may request all harassment complaint decisions of the organization:

In Laurentian University Faculty Association v. Laurentian University (2010), the Ontario Labour Relations Board found that decisions made under the university’s harassment complaint process were subject to disclosure to the union.  The Board noted that the union’s ability to fulfill its statutory mandate to represent its members was impaired where it does not have the same information available to the employer.  In responding to the University’s concern that the decisions contained highly sensitive matters, the Board countered that unions are often required to deal with such information, and need to be informed of inter-personal workplace issues that could be relevant to the determination of member rights.

Question: Should workplace harassment investigation policies be revised to reflect this possibility?

Internal investigation reports might not stay internal

Investigation report on scientific fraud to be released:
In 2006, a defamation lawsuit against Memorial University broke the news, with reference to an internal report investigating possible academic fraud.  The Newfoundland and Labrador Information and Privacy Commissioner recommended that the report be released with the exception of certain specific personal information he identified.  In doing so, he noted that the defamation law suit did not fall within the exemptions to the application of the Act for prosecution or law enforcement.  He also took note of the fact that the report had already been ‘widely’ disseminated, and that many of the individuals named in the report were Memorial’s employees and were not third parties to the report.  The Commissioner also explored the distinction between personal information and work product information.

Employees have a right to know what information the employer has collected

Full reports of internal investigations might be requested by complainants, with only third party personal information edited:

In E.D. v. Minister of Education and Others, A workplace harassment complainant asked to have access to the entire investigation report released to her.  The Northwest Territories Information and Privacy Commissioner ordered that the report be released subject to editing information that fell within the exemptions set out in the Act.  However, the Complainant wanted the entire report, without edits or redactions.  The Supreme Court ordered a more open disclosure than had been suggested by the Commissioner, but did uphold the editing of third party comments and documents that were supplied in confidence through the process.

 

Employees have the right to know whether and when part of their employment file has been altered:

In Order No. 08-005 (2007), the PEI  Office of the Information & Privacy Commissioner held that when an employee’s file was released under an application under the Freedom of Information and Protection of Privacy Act, the employing Department was obliged to inform the employee that some records had been removed.

 

Employers have a duty to protect employee health information:

In Kawartha Pine Ridge District School Board v. ETFO, a school principal sent a letter to parents advising them that a teacher would be away for six months because she had breast cancer.  The union grieved this disclosure, and the arbitrator held that he had jurisdiction to consider the grievance and consider the issue in light of the Ontario Municipal Freedom of Information and Protection of Privacy Act.

 

Independent Medical Exam notes to be disclosed under PIPEDA:

In Roussea v. Wyndowe (2006), Rousseau was suing his  insurer, Maritime Life, after Dr. Wyndowe conducted an independent medical examination.  Rousseau sought access to Wyndowe’s notes under the Personal Information Protection and Electronic Documents Act (PIPEDA).  The Federal Court ruled that the medical notes fell within the definition of personal information under PIPEDA because the examination was made primarily to determine Rousseau’s eligibility for insurance coverage rather than for litigation.  Therefore, the notes were not protected and were to be disclosed.

 

There is a difference between personal information about employees information about their work product

In University of Windsor Faculty Association v. University of Windsor, an arbitrator ruled that student evaluations of courses could be published on the university’s Student Information System.  The arbitrator held that the evaluation information was not the same as psychiatric records, transcripts, letters of reference and assessment or material reflecting salary history; instead the student evaluation information was statistical in nature.  This was a similar approach to that adopted by the Privacy Commissioner of Canada in finding the prescribing patterns of physicians was not personal information but rather information about work product.  The Commissioner reasoned that a balance must be found between information that is about the individual, and the tangible results of work or activity – the work product.

Accommodation requires open information sharing

Medical information pertaining to an addiction at a time when an employment decision is made:
Employees claiming a need for accommodation need to share information relevant to exploring accommodation options.  In M.B. v. Interior Health Authority (2005), a pharmacist job applicant complained to BC Human Rights that the Health Authority had reneged on a job offer when he disclosed that he was a recovering addict.  The Authority asked for additional information, which MB refused to disclose.  However, the BC Human Rights Tribunal held that information pertaining to MB’s addiction situation at the time of his job application was relevant and should be disclosed as well as his medical and employment records from his employment in Bermuda where he had been convicted of theft of drugs from his employer.

Note that the summary of these cases does not purport to be legal advice, it is intended only to raise reader awareness that access to information issues require attention.  The statutes relating to access to information and protection of privacy vary across Canada.  If you have a specific issue relating to your workplace, contact legal counsel familiar with the state of the law in your jurisdiction.

 
 

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