When is labour and employment information exempt from disclosure?

The Prodigal Son Guarding Pigs

In Ontario, both the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) contain special provisions regarding labour and employment information which often have the effect of giving provincial and municipal institutions the option (or in some cases, the obligation) to refuse to disclose such information to requestors.

The provisions regarding labour and/or employment information are found in three distinct parts of FIPPA and MFIPPA (the “Acts”):

1. The “Third-Party Information” Exemption: FIPPA s.17(1) / MFIPPA s.10(1)

The “Third-Party Information” exemption found in s.17 of FIPPA and s.10 of MFIPPA offers some protection for labour relations information.  It applies to “a trade secret or scientific, technical, commercial, financial or labour relations” information “supplied in confidence implicitly or explicitly” whose disclosure would lead to specific harms, or whose release would “reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute.”  This is a mandatory exemption, which means that institutions have an obligation not to disclose any information to which the exemption applies.

Relevant Orders

In Information and Privacy Commissioner of Ontario (IPCO) Order P-653, Adjudicator Holly Big Canoe clarified that “labour relations information” refers to information concerning the “collective relationship” between an employer and its employees.  Information compiled by the institution in the course of negotiation of pay equity plans was therefore covered by the Third-Party Information exemption as labour relations information.

In Order P-715, Adjudicator Donald Hale cited the “collective relationship” definition in finding that the Third-Party Information exemption did not apply to an individual appellant’s work performance and dismissal from employment.  Similarly, in Order MO-2164, Adjudicator Frank DeVries found that “the names, duties and qualifications of individual employees is not ‘labour relations information’ under [the Third-Party Information exemption] because it does not relate to labour disputes, labour negotiations or other similar information…”

In Order PO-2781, Adjudicator Brian Beamish (as he then was) found that information in records detailing the collective relationship between the employer and the employee, such as projections of labour accruals, physician funding, possible program changes, and staffing levels, should be considered labour relations information under the “Third-Party Information” exemption.

In Order PO-3748, Adjudicator Stephanie Haly found that records that dealt with the appellant’s approach with its staff during any potential labour dispute would qualify as “labour relations information” under the “Third-Party Information” exemption, but that information in such records “which contains the names, duties and qualifications of employees does not qualify as labour relations information”.

2. The “Unjustified Invasion of Privacy” Presumption: FIPPA s.21(3) / MFIPPA s.14(3)

Both s.21(3) of FIPPA and s.14(3) of MFIPPA state that:

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information, […]

(d) relates to employment or educational history; […]

(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness; [or]

(g) consists of personal recommendations or evaluations, character references or personnel evaluations […]

Under the general “Personal Information” exemption set out in s.21(1) of FIPPA and s.14(1) of MFIPPA, institutions are generally prohibited from disclosing personal information.  As with the Third-Party Information exemption outlined above, the “Personal Information” exemption is a mandatory exemption, which means that institutions have an obligation not to disclose any information to which the exemption applies.

However, the language of the exemption includes a number of exceptions to the general rule, such as where personal information is disclosed with the consent of the individual to whom it relates (FIPPA s.21(1)(a) / MFIPPA s.14(1)(a)), or where personal information is being disclosed under an Act of Ontario or Canada that expressly authorizes the disclosure (FIPPA s.21(1)(d) / MFIPPA s.14(1)(d)).  Disclosure of personal information is also permitted “if the disclosure does not constitute an unjustified invasion of personal privacy” (FIPPA s.21(1)(f) / MFIPPA s.14(1)(f)).

Of course, it can be difficult to ascertain whether a proposed disclosure of personal information would constitute an unjustified invasion of personal privacy.  This is where the guidance set out in s.21(3) of FIPPA and s.14(3) of MFIPPA is of great assistance.  It clarifies that for certain kinds of employment and financial-related information, any disclosure of such information is an unjustified invasion of personal privacy and therefore institutions simply must not disclose such information (unless there is another applicable legal basis for disclosure).

What is included in Employment or Educational History?

An individual’s cover letter and resume or C.V. would seem to be in the core of what constitutes “employment or educational history”, whose unauthorized disclosure would constitute an unjustified invasion of privacy (as per Order M-99).  More specifically, as summarized in Order MO-1796, IPCO decisions have found that the following kinds of information would be considered “employment or educational history”:

  • start and finish dates of a salary continuation agreement
  • dates upon which individuals are eligible for early retirement or entitled to draw a pension
  • start and end dates of employment
  • number of years of service
  • last day worked
  • dates upon which notice period begins and ends
  • date of earliest retirement
  • number of sick leave and annual leave days used
  • restrictive covenants in which the individual agrees not to engage in certain work for a specified duration
  • information in a severance agreement that sets out the period during which the salary of the individual will continue to be paid
  • amount of vacation or sick leave entitlement
  • credited service in the Ontario Municipal Employees Retirement System

In terms of what is not captured by this definition, various IPCO decisions have clarified that the following kinds of information would not be considered “employment or educational history”:

  • information relating to an individual’s current employment (Order P-240);
  • a person’s name, occupation, position and employer (Order P-235);
  • lists of individual names and current job titles (Order M-1074);
  • lists of names, addresses and telephone numbers of employees and former employees of an institution (Order P-1018);
  • job descriptions (Order P-828);
  • the number of hours worked by an employee during a particular period (Order M-35)
  • employee expense claims (Order P-256)

What is included in “Finances, Income, Assets, etc.”?

As summarized in Order MO-1796, IPCO decisions have found that the following kinds of information would be covered:

  • references to an individual’s specific salary
  • contributions to a pension plan
  • amount of salary continuation payments

Whereas the following have all been found not to fall under any of the MFIPPA s.14(3) exemptions:

  • address of an affected party
  • releases
  • agreements about the potential availability of early retirement
  • payment of independent legal fees
  • continued use of equipment
  • one-time or lump sum payments or entitlements that arise directly from the acceptance by the individual of retirement packages

(Although note that other exemptions or exclusions could potentially apply to such items.)

Sunshine List

Most institutions are likely familiar with The Public Sector Salary Disclosure Act, 1996 which requires most institutions to publish annually the names, positions, salaries and total taxable benefits of employees paid $100,000 or more in the previous calendar year (often referred to as the “Sunshine List”).  Despite this legislation, it is generally prohibited for an institution to disclose any employee’s income or finances except as specifically authorized by an Act of Ontario or Canada.  In other words, the existence of the “Sunshine List” does not abolish the privacy protections implemented by FIPPA and MFIPPA.

That said, both FIPPA and MFIPPA expressly permit the disclosure of the “classification, salary range and benefits, or employment responsibilities” of a current or former officer or employee of the institution, as well as “the financial or other details of a contract for personal services between an individual and an institution”.  See s.21(4) of FIPPA and s.14(4) of MFIPPA for further details on these limitations to the general unjustified invasion of privacy presumption.

3. The “Labour and Employment” Exclusions: FIPPA s.65(6 & 7) / MFIPPA s.52(3 & 4)

The “labour and employment” exclusions were added to FIPPA and MFIPPA as part of the Labour Relations and Employment Statute Law Amendment Act, 1995.  As these exclusions appear near the end of each Act, they are relatively easy to overlook, yet in all likelihood these exclusions apply to an even greater number of labour and employment records than the exemptions described earlier.

Section 65 of FIPPA and section 52 of MFIPPA set out a number of “exclusions” from the Acts.  Unlike the “Third-Party Information” and “Personal Information” exemptions discussed earlier in this article, exclusions have the effect of pulling certain kinds of records entirely out of the reach of FIPPA or MFIPPA.  (For more information on this difference between exemptions and exclusions, see my earlier article, “Exemptions vs. Exclusions: What is the difference?”)

Specifically in regard to labour and employment related information, section 65(6) of FIPPA and section 52(3) of MFIPPA state that the Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to:

  1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.
  2. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding.
  3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.

FIPPA continues with the following carve-outs in addition to those listed above:

  1. Meetings, consultations, discussions or communications about the appointment or placement of any individual by a church or religious organization within an institution, or within the church or religious organization.
  2. Meetings, consultations, discussions or communications about applications for hospital appointments, the appointments or privileges of persons who have hospital privileges, and anything that forms part of the personnel file of those persons.

However, in the very next subsection (that is, s.65(7) of FIPPA and s.52(4) of MFIPPA) the Acts state that despite the language above, the Acts do apply to the following records:

  1. An agreement between an institution and a trade union.
  2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters.
  3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees.
  4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment.

The labour and employment exclusions in section 65(6) of FIPPA and section 52(3) of MFIPPA have the effect of excluding a great number of records (or parts of records) from being disclosed upon request.  Unlike the Third-Party Information exemption, which applies to “labour relation information”, the labour and employment exclusions apply to both “labour relations” information as well as information relating to the “employment of a person” and “employment-related matters”.  This has the effect of excluding far more information relating to individual employees, job candidates, and even the selection and interview process.

Relevant Orders

Various IPCO decisions have confirmed that the labour and employment exclusions apply to:

  • Records relating to employment interviews (which are considered “meetings” under part 3 of the exclusion), per Order P-1258;
  • Evaluations regarding the conduct of the institution’s personnel, per Reynolds v. Ontario (Information and Privacy Commissioner), [2006] O.J. No. 4356, 217 O.A.C. 146, Tor. Doc. 485/04 (Div. Ct.);
  • Records created in response to workload and human resources concerns raised by employees or which deal primarily with compensation issues (Order MO-2332 and Order PO-2057);
  • In certain cases, records created outside the context of labour relations and employment but which are then maintained or used for labour relations or employment purposes (Order MO-1654-I).

However, the labour and employment exclusions were found not to apply in the following circumstances:

  • A review of regulations regarding the political activities of police officers, when conducted by the Ministry of the Solicitor General (who notably was not the employer of the police officers) per Order PO-2093-I;
  • Records relating to a Ministry’s actions and reactions to an investigation by the Ombudsman into certain problems with a Ministry investigation process (Order PO-2938);
  • A city’s records of payments to a law firm maintained for accounting purposes (Order MO-2024).

An Institution Can Refuse To Disclose Excluded Records, Even to the Individual To Whom The Records Relate

Crucially, records excluded under section 65(6) of FIPPA and section 52(3) of MFIPPA are not subject to disclosure under FIPPA or MFIPPA, even if their disclosure is requested by the individual or organization to whom such records relate.

To elaborate, an institution may refuse to disclose anything that would be excluded under section 65(6) of FIPPA or section 52(3) of MFIPPA, such as:

  • the institution’s reasons for rejecting a candidate’s job application,
  • the notes from a candidate’s employment interview,
  • feedback from coworkers gathered for the purpose of employee evaluations, and
  • records relating to setting an individual’s compensation,

even in response to an FOI request from the very individual to whom such records relate, on the basis that such employment records records are entirely excluded from FIPPA and MFIPPA (under s.65(6) or s.52(3) respectively).

In contrast, an institution cannot use the Third-Party Information exemption (FIPPA s.17(1) / MFIPPA s.10(1)) as a basis for refusing to disclose records to the third party whose confidential information is contained within such records.  Likewise, an institution cannot use the Personal Information exemption (s.21(1) of FIPPA / s.14(1) of MFIPPA) as a basis for refusing to disclose records to the individual whose personal information is contained in such records.

By allowing institutions to withhold disclosure even to the individuals or organizations to whom the records relate, the labour and employment exclusions create some “breathing room” for institutions.  If not for the existence of these exclusions, institutions could perhaps expect to frequently face demands for employment and labour-relations related records from the institution’s own staff, unions, and even from job candidates.

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Related articles:

Exemptions vs. Exclusions – What is the difference?

Is my organization legally obligated to respond to FOI requests?

Links to Resources:

Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31

Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56

Public Sector Salary Disclosure Act, 1996, S.O. 1996 https://www.ontario.ca/laws/statute/96p01a

Labour Relations and Employment Statute Law Amendment Act, 1995 https://www.ola.org/en/legislative-business/bills/parliament-36/session-1/bill-7

Information and Privacy Commissioner of Ontario (IPCO) Decisions https://decisions.ipc.on.ca/ipc-cipvp/en/nav.do

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