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Railway company withholds employee's personal information

PIPEDA Case Summary #2003-147

[Principle 4.7 of Schedule 1; sections 8(7), 9(1), 9(3)(a), (b), (c.1), (d)]


The complainant, a former employee of a railway company, alleged that his employer had refused him access to his personal information, specifically, his personnel file.

Summary of Investigation

At the time of the request, the complainant and the railway company were involved in a dispute before a provincial appeals tribunal that reviews workers compensation decisions. In its response denying the complainant's request for his personnel file, the company referred to these legal proceedings, but provided no further information explaining its position. In its representations to the Commissioner's Office following the filing of this complaint, the railway company expanded on its reasons for denying the complainant's request, stating that some of the information in his file referred to third parties and could have an effect on the dispute proceedings. The company also indicated that it was involved in an arbitration process dealing with a grievance the complainant had filed following his dismissal from the company.

The Commissioner's Office reviewed the complainant's file and found that much of the information was administrative in nature, did not relate to the dispute or the grievance, and included documents addressed by the complainant to his employer or vice versa. The Commissioner therefore recommended to the company that it release the majority of the complainant's file to him. The railway complied but withheld some information, citing the exceptions provided under 9(1), 9(3)(a), (b), (c.1) and (d) of the Personal Information Protection and Electronic Documents Act (the Act).

Commissioner's Findings

Issued April 7, 2003

Jurisdiction: As of January 1, 2001, the Personal Information Protection and Electronic Documents Act (the Act) applies to any federal work, undertaking, or business. The Commissioner had jurisdiction in this case because a railway 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 8(7) establishes that an organization that responds within the time limit and refuses a request shall inform the individual in writing of the refusal, setting out reasons and any recourse that they may have under this Part.

Section 9(1) states that, despite (clause) 4.9 of Schedule 1, an organization shall not give an individual access to personal information if doing so would likely reveal personal information about a third party. Section 9(3) stipulates that an organization is not required to give access to personal information only if

(a) the information is protected by solicitor-client privilege;
(b) to do so would reveal confidential commercial information;
(c.1) the information was collected under paragraph 7(1)(b); or
(d) the information was generated in the course of a formal dispute resolution process.

Section 7(1)(b) states an organization may collect personal information without the knowledge and consent of the individual only if it is reasonable to expect that the collection with the knowledge and consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province.

The Commissioner determined that the company contravened Principle 4.9 and section 8(7) when it initially failed to provide the complainant with the information to which he was entitled under the Act, and when it neglected to provide a reason for its refusal, as well as any recourse that he had.

As for the exceptions invoked by the railway, the Commissioner first determined that the company was correct in citing section 9(1) to withhold the information in the file that referred to third parties. The Commissioner further agreed that the information prepared by company lawyers with respect to the compensation board dispute, as well as the grievance lodged by the complainant, was protected by solicitor-client privilege and was therefore exempt, as per section 9(3)(a).

The Commissioner did not agree that information regarding compensation paid to the complainant and the costs related to his claim with the province's workplace safety board constituted confidential commercial information, as the company had argued. He therefore rejected the company's invocation of 9(3)(b) in this instance.

He did, however, accept the company's assertion that information relating to its investigation into the complainant's fitness to work fell under 9(3)(c.1).

As for section 9(3)(d), the Commissioner was of the view that a grievance and arbitration process by its nature seeks to resolve differences between parties and can therefore be considered a formal dispute resolution process. He thus accepted that information generated by the company as a result of this process could be exempted from the access requirement, as per section 9(3)(d).

Although the company had initially refused access, and was therefore in contravention of Principle 4.9, the Commissioner was satisfied that the company had eventually released, for the most part, the information to which the complainant was entitled. With the exception of the information withheld under 9(3)(b), which the Commissioner determined should be released, he found it appropriate for the company to rely on sections 9(1), 9(3)(a), (c.1) and (d) to withhold certain information.

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

Further Considerations

The Commissioner recommended that the company provide the complainant with the information withheld under 9(3)(b).

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