Airport management cites solicitor-client privilege to withhold employee's information

PIPEDA Case Summary #2002-37

[Principle 4.9, Schedule 1; section 9(3)]

Complaint

An employee of an airport filed two separate complaints to the effect that her employer had refused several requests she had made for access to her personal information.

Summary of Investigation

The complainant had made five requests for access to documents and tape recordings related to certain public complaints that had been lodged against her and a harassment complaint that she had lodged against her employer. Several weeks later, pursuant to grievances that she had filed in respect of disciplinary measures her employer had taken against her in the meantime, the complainant made two more requests for access to documents and tape recordings. In refusing access, the airport management cited two exceptions provided under the Personal Information Protection and Electronic Documents Act (the Act), applying specifically to information protected by solicitor-client privilege and information generated in the course of a formal dispute-resolution process. In effect, the employer maintained that the various complaints and grievances constituted a formal dispute-resolution process for purposes of the Act and that solicitor-client privilege applied because lawyers had been consulted on the various files of information gathered as evidence.

Having complied with her employer's requests that she supply information in her possession to justify her position, the complainant considered it unfair that her employer was refusing to provide the information it had gathered on its own side of the dispute.

Commissioner's Findings

Issued January 14, 2002

Jurisdiction: As of January 1, 2001, the Act applies to any federal work, undertaking, or business. The Commissioner had jurisdiction in this case because airports are federal works, undertakings, or businesses as defined in the Act.

Application: Principle 4.9 of Schedule 1 states that upon request an organization must inform an individual of the existence, use, and disclosure of his or her personal information and give the individual access to that information. Section 9(3) states that an organization is not required to give access to personal information if the information is protected by solicitor-client privilege (9(3)(a)) or if the information was generated in the course of a formal dispute-resolution process (9(3)(d)).

With regard to section 9(3)(a), the Commissioner noted that the complainant had not requested access to any lawyer's file, but rather to documents related to complaints and disciplinary measures concerning herself. He determined that the airport management had not been justified in invoking solicitor-client privilege to protect the information at issue simply on the grounds that it had been gathered to respond to complaints and grievances or that lawyers had been consulted on the various files.

With regard to section 9(3)(d), the Commissioner noted that the purpose of this exception is not to protect information gathered in the course of administrative processes for resolving complaints or grievances. He further noted that such an interpretation would not respect the principles of natural justice, effectively denying individuals their fundamental rights to know of allegations made against them and to know the basis of decisions made about them. Also, in the Commissioner's view, a formal dispute-resolution process implies the desire of parties to meet for the purpose of negotiating a resolution acceptable to each - which was not the case with the parties in question. Hence he did not accept the employer's interpretation that the process was one of formal dispute-resolution or that the information at issue had been gathered strictly for that purpose. He determined that the employer had been wrong in applying section 9(3)(d) to refuse the complainant access to her personal information.

With regard to Principle 4.9, he determined that the employer had failed to respect the complainant's right of access to her personal information.

In sum, the Commissioner found that the employer was in contravention of the relevant provisions of the Act. He concluded that the complaint was well-founded.

Further Considerations

The Commissioner recommended that the airport management revoke the application of section 9(3)(a) and (d) and send to the complainant all the information she had requested or, should it persist with refusal, inform the Commissioner of its reasons.

When the airport management did persist with refusal, the Commissioner's Office obtained the complainant's consent to pursue the matter in Federal Court. The case was referred to the Court, but with the assistance of the Office was resolved prior to the hearing. The airport management released to the complainant all the available information to which she was entitled under the Act. Accordingly, the Commissioner discontinued his action against the organization.

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