Access denied to records generated for previous complaint investigation

PIPEDA Case Summary #2002-92

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

Complaint

An individual complained that a telecommunications company had refused him access to personal information, specifically records the company had generated in responding to a previous complaint he had filed with the Privacy Commissioner's Office.

Summary of Investigation

This was the first complaint under the Personal Information Protection and Electronic Documents Act to raise the issue of accessibility with regard to records created for purposes of a complaint investigation by the Office.

In refusing access to the information in question, the company was relying upon section 9(3)(d) of the Act, which permits an organization to refuse access to personal information generated in the course of a formal dispute resolution process.

The Commissioner's task in this case was to determine whether it was appropriate for the company to invoke section 9(3)(d) as an exemption to the complainant's right of access to personal information under Principle 4.9 and, more broadly, whether Principle 4.9 provides any right of access at all to the personal information at issue.

The first question entailed a consideration of section 12(2) of the Act, which provides that in the course of investigations the Commissioner may use dispute resolution mechanisms, such as mediation and conciliation, as a means of resolving complaints. The clear implication is that the Act, by providing for the use of special means in discretionary circumstances, does not deem such means to be integral to an investigation in the normal course of events. Thus, the Act itself strongly suggests that a complaint investigation is meant to be taken as distinct from a formal dispute resolution process. Furthermore, in investigating the complaint in question, the Commissioner did not use any mechanism available to him under section 12(2).

The second question entailed a consideration of the Supreme Court's 1996 decision in Rubin v. Canada. That decision had endorsed the view of the Federal Court of Appeal that the general right of access under the Access to Information Act did not apply to representations made to the Information Commissioner in the course of a complaint investigation.

Commissioner's Findings

Issued November 25, 2002

Jurisdiction: As of January 1, 2001, the Personal Information Protection and Electronic Documents Act applies to any federal work, undertaking, or business. The Commissioner has jurisdiction in this case because a telecommunications company is a federal work, undertaking, or business as defined in the Act.

Application: Principle 4.9 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. An individual shall be able to challenge the accuracy and completeness of the information and have it amended as appropriate. Section 9(3)(d) states that "...an organization is not required to give access to personal information only if the information was generated in the course of a formal dispute resolution process".

On the question of the exempting provision, the Commissioner deliberated as follows:

• He was satisfied that the Act did not intend that an investigation conducted under its auspices be deemed in itself to be a formal dispute resolution process.
• While acknowledging that in keeping with his role as an ombudsman his Office's interventions did often lead incidently to the satisfactory resolution of issues between parties, he was of the view that the direct and primary purpose of a complaint investigation under the Act should properly be regarded not as resolving disputes, but rather as determining whether or not an organization was in compliance with the Act.
• He determined therefore that an investigation by his Office ought not to be considered, in any substantive or formal sense, a dispute resolution process for purposes of the Act.

By this account, he found that the exemption under section 9(3)(d) was not available to the company as a basis for withholding the individual's personal information generated in the course of his Office's investigation of the complaint.

On the question as to whether Principle 4.9 provided the complainant with any right of access whatsoever to the information at issue, the Commissioner deliberated as follows:

• The Commissioner noted that the Act did not specifically address an individual's right of access to information generated by an organization in the course of an investigation by his Office. However, he was aware that, as far as counterparts to the Act were concerned - that is, the Access to Information Act (AIA) and the Privacy Act - the issue had already been settled in the negative in Rubin v. Canada (Clerk of the Privy Council).
• The Federal Court of Appeal had founded its decision largely upon an analysis of the general purpose and scheme of the legislation, as well as the various confidentiality provisions that precluded disclosure of information gathered by the Information Commissioner in the course of an investigation. The Court was persuaded that there would be practical difficulties in conducting investigations if this confidentiality of process were not maintained - both during and subsequent to an investigation.
• The Commissioner determined that, while the Act did not have an exact equivalent to the specific provision of the AIA under consideration in Rubin, sections 20 and 21 of the Act clearly contemplated and supported the confidentiality of information that comes to the knowledge of his Office. He also determined that nothing in the stated purpose in Part 1, section 3, of the Act would support a right of access to the information in question.

In consideration of the Supreme Court's decision in Rubin v. Canada, as well as the congruity between the Act and the legislation under scrutiny, and the practical difficulties referred to above, the Commissioner determined that neither Principle 4.9 nor any other provision of the Act intends a general right of access to representations made to the Commissioner in the course of a complaint investigation. Since the information at issue was thus not subject to a right of access at all, the Commissioner found that it was unnecessary for the company to apply an exemption under the Act in order to exclude the information.

The Commissioner concluded that the complaint was not well-founded.