Former employee accuses telecommunications company of withholding employment records

PIPEDA Case Summary #2002-32

[Principle 4.9, Schedule 1; Section 8(7)]

Complaint

A former employee complained that a telecommunications company had denied her access to her personal information in the form of records about her employment.

Summary of Investigation

The complainant's lengthy employment with the company in question had ended in January 1997. In July 2001, the complainant submitted to the company a request for access to all information in her personal file. Although she did not so specify in her request, she was particularly interested in obtaining information about her performance as an employee. More than seven weeks later, the company informed her by telephone that she would not be given the information she had requested. It was then that she filed her complaint with the Office of the Privacy Commissioner.

At the Office's intervention, the company explained that its refusal of the access request had resulted from misinterpretation on the part of the employee who had received it. The company then forwarded to the complainant her information that remained on file, which related mainly to pension and termination payments. The complainant was dissatisfied that no performance information had been included. The company explained that such information would have taken the form of supervisors' files, which in accordance with the company's retention-and-disposal policy had been destroyed two years after termination of the complainant's employment.

The complainant did not accept this explanation. She believed that her new or prospective employers had been contacting the company and receiving negative reviews of her past performance. From this she inferred that the company continued to hold supervisors' files or other sources or performance information about her. The investigation confirmed, however, that the company's policy is never to provide reviews, positive or negative, of former employees' performance.

Commissioner's Findings

Issued January 8, 2002

Jurisdiction: As of January 1, 2001, the Personal Information Protection and Electronic Documents Act applies to federal works, undertakings, or businesses. The Commissioner had jurisdiction in this case because telecommunications companies are federal works, undertakings, or businesses, as defined in the Act.

Application: Principle 4.9, Schedule 1, states that, upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information. Section 8(7) of the Act states that an organization that refuses a request must inform the individual in writing of the refusal, setting out the reasons for it and any recourse the individual may have.

The Commissioner determined that the company had not initially provided the complainant with access to her personal information, had not notified her of its refusal in writing, and had not set out reasons for its refusal. He found therefore that the company was clearly in contravention of Principle 4.9 and section 8(7).

However, the Commissioner found no evidence to support the complainant's contention that the company continued to hold records related to her performance and used such records to discredit her with new or prospective employers. In fact, the company destroys records after two years from departure, and has a policy of not giving performance reviews to prospective employers. He was satisfied that the complainant had received from the company all information to which she was entitled under the Act.

The Commissioner concluded therefore that the complaint was well-founded and resolved.

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