Applying the public interest override to employment information

Whirligig Peddler (Anne Claude Philippe de Tubières)

In a previous article I described the various exceptions under the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) which allow Ontario’s provincial and municipal institutions to refuse to disclose many different kinds of labour and employment information.  More recently, I provided an overview of the public interest override, which prioritizes the disclosure of information when there is a compelling public interest in making such disclosure that clearly outweighs the purpose of the relevant exemptions in each Act.

Today’s article is intended to explain when the public interest override applies to requests for employment information.

Based on both personal experience and the number of relevant Information and Privacy Commissioner of Ontario (IPCO) decisions, it is apparent that requests for employment information, including salary, base pay, performance pay / bonus amounts, pension, benefits, and employment contracts, are submitted to institutions on a frequent basis.  Whether the requestor is a journalist hoping for a shocking headline, an opposition politician hoping to criticize a political appointment, a labour union seeking to gain a leg-up in negotiations, or even a curious co-worker, there is no shortage of interest in the details of how public servants are compensated and what benefits they may be entitled to receive.

As explained previously, FIPPA and MFIPPA contain a number of exemptions which are intended to allow institutions to refuse most requests for employment information.  Perhaps the most relevant is the “Unjustified Invasion of Privacy” presumption found in FIPPA s.21(3) and MFIPPA s.14(3), which generally prohibits institutions from disclosing most kinds of personal information.  This presumption explicitly states that for certain kinds of employment and financial-related information (including an individual’s specific salary, contributions to a pension plan, and the amount of salary continuation payments) any disclosure of such information is an unjustified invasion of personal privacy.  (See my previous article on the topic for further details on the “Unjustified Invasion of Privacy” presumption.)

However, the public interest override language (FIPPA s. 23 / MFIPPA s. 16) states that for certain listed exemptions, where a compelling public interest in the disclosure of the record clearly outweighs the purpose of an exemption, the exemption does not apply.  The personal information exemption itself is one of the listed exemptions to which the public interest override applies, which means that an institution cannot rely on the personal information exemption to refuse to disclose employment information if there is a compelling public interest in the disclosure of the information such that the public interest override is engaged.

How is an institution to know when there is a compelling public interest in revealing an employee’s personal employment information, and whether such interest “clearly outweighs” the employee’s own interest in keeping the information confidential?  Indeed, what is the effect, if any, of the presumption that most disclosures of employment and financial-related are presumed to be an unjustified invasion of privacy?  The language of the Acts does not provide much assistance in performing this balancing act.  Helpfully, there are a number of IPCO decisions which do confront this issue head-on.

Regional Municipality of York Police Services Board (MO-2563)

The York Regional Police Association, a labour union representing the police force, requested, among other things, the base salaries of the York Region Chief of Police and two deputies from the Regional Municipality of York Police Services Board.  The salary figure for each of the three employees was over $100,000, and therefore was already being published annually under Ontario’s Public Sector Salary Disclosure Act (the PSSDA, known colloquially as the “Sunshine List”).  However, the union was interested in receiving more detailed disclosure; specifically, it wanted to know the amount of compensation attributable to base pay and the amount of bonus compensation.  The union was also seeking to receive the requested salary information in a more timely fashion than under the annual release schedule of the PSSDA.

IPCO Adjudicator Bernard Morrow first considered whether the requested information was personal information whose disclosure would be presumed to be an unjustified invasion of the employee’s personal privacy.  Adjudicator Morrow considered whether the request would merely disclose “(a) the classification, salary range and benefits, or employment responsibilities of an individual who is or was an officer or employee of an institution or a member of the staff of a minister” or the “(b) financial or other details of a contract for personal services between an individual and an institution”, in which case, under s.14(4) of MFIPPA, the disclosure would not constitute an unjustified invasion of the employee’s personal privacy.  However he determined that neither of these sub-sections was applicable: the request was for actual salary amounts, not merely “ranges”, and further, the targets of the request were actual employees of the institution, not contractors under contracts for personal services with the institution.

Rather, Adjudicator Morrow found that the information fell squarely under the “unjustified invasion of personal privacy” provisions of MFIPPA:

Sections 14(3)(d) and (f) state:

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if 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;

With regard to the presumption in section 14(3)(f), both the Police and the appellant acknowledge that the information at issue falls within this presumption since the affected parties’ salary information describes their income.

On my review of the information at issue, I am satisfied that the salary information contained in the records describes the affected parties’ income within the meaning of the presumption in section 14(3)(f). As stated above, a presumed invasion of personal property can only be overcome if section 14(4) or the “public interest override” at section 16 applies. I have already determined that section 14(4) does not apply. Accordingly, I find the salary information at issue in this appeal exempt under section 14(1), subject to the application of the section 16 public interest override, which the appellant has raised in this case.

The question therefore came down to whether the public interest override applied to the request.  As set out in the decision:

Compelling public interest

In considering whether there is a “public interest” in disclosure of a record, the first question to ask is whether there is a relationship between the record and the Act’s central purpose of shedding light on the operations of government [Orders P-984, PO-2607]. Previous orders have stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices [Orders P-984 and PO-2556].

A public interest does not exist where the interests being advanced are essentially private in nature [Orders P-12, P-347 and P-1439]. However, where a private interest in disclosure raises issues of more general application, a public interest may be found to exist [Order MO-1564].

The word “compelling” has been defined in previous orders as “rousing strong interest or attention” [Order P-984].

Any public interest in non-disclosure that may exist also must be considered [Ontario Hydro v. Mitchinson, [1996] O.J. No. 4636 (Div. Ct.)]. If there is a significant public interest in the non-disclosure of the record then disclosure cannot be considered “compelling” and the override will not apply [Orders PO-2072-F and PO-2098-R].

Adjudicator Morrow stated that in his view, the reason the requestor was seeking the information was to represent the interests of its members in collective bargaining negotiations, which, to a large extent, was a private interest; however, where a private interest in disclosure raises issues of more general application, a public interest may be found to exist.  He noted that while the requestor “appears to be motivated by a private interest, the information at issue is also of broader interest to all taxpayers as a means of shedding light on the affairs of government and, in particular, ensuring accountability for the allocation of public funds.”

The police services board argued that similar information was already being disclosed annually under the PSSDA; however, Adjudicator Morrow found such disclosure was not sufficiently responsive to the request at hand, explaining that “the PSSDA does not address the component parts of a public sector employee’s total salary, including any pay for performance or other bonus amounts earned. In addition, the PSSDA only reports salary and benefit information for past years; it does not publish information regarding present or future years.”

Adjudicator Morrow concluded that he was satisfied that the requested information was of broader public interest in ensuring openness and transparency regarding the inner workings of government, and therefore there was a public interest in disclosure of the withheld information in the records at issue.  With regard to whether such public interest was “compelling”, the adjudicator found that “the allocation of taxpayers’ money for the payment of senior level public sector salaries ‘rouses strong interest and attention,’ which means that the public interest in disclosure is ‘compelling.'”  Adjudicator Morrow additionally explained that any public interest in non-disclosure of the information should be considered, but in the present case, he found no such public interest in non-disclosure.

The only remaining question was whether the compelling public interest in the disclosure of the requested information “clearly outweighed” the purpose of the section 14 personal privacy exemption that would otherwise be applicable.  Adjudicator Morrow decided this question as follows:

In my view, the compelling public interest in disclosure of the withheld portions of the records at issue clearly outweighs the purpose of the section 14 exemption in this case. The public has a right to know to the fullest extent possible how taxpayer dollars have been allocated to public servants’ salaries, and this has particular force with respect to public servants at senior levels who earn significant amounts of money paid out of the public purse. Certainly, the PSSDA is one important tool for ensuring such openness and transparency. However, in my view, to limit disclosure to only those amounts that are disclosed under the PSSDA seems incongruent with the government’s commitment to openness and transparency and, in turn, accountability for the allocation of public resources. In my view, when an individual enters the public service he/she accepts that his/her salary may be exposed to public scrutiny. In this case, the amounts at issue exceed the PSSDA $100,000 threshold and the impact on the affected parties’ privacy is limited to the amounts provided for pay for performance in 2009, which can be extrapolated from a comparison of the base salary amounts in the records with the salaries published under the PSSDA for that year. In my view, the need for complete transparency in this case outweighs the limited privacy interests of the affected parties.

Adjudicator Morrow therefore ordered that the requested salary amounts be disclosed, as there was a compelling public interest in making such disclosure which clearly outweighed the privacy rights of the employees affected.

The decision was affirmed on appeal to the Divisional Court (see York (Police Services Board) v. (Ontario) Information and Privacy Commissioner, 2012 ONSC 6175).

The Corporation of the Town of Orangeville (Order MO-3044)

In this decision, the Corporation of the Town of Orangeville was asked to disclose the current employment contract between the town and a member of the Orangeville Police Services Board.  Adjudicator Justine Wai found the requested information indistinguishable from the salary information considered by Adjudicator Morrow in Order MO-2563.  Accordingly, she found that the public interest override in section 16 of MFIPPA applied to the salary information requested and therefore ordered that it be disclosed.

Niagara Peninsula Conservation Authority (Order MO-3844)

In this decision, the request was for the titles and salaries of Niagara Peninsula Conservation Authority (NPCA) staff members whose salary was $100,000 or more.  Unusually, although the NPCA was an institution under MFIPPA, the PSSDA (the Sunshine List) was not applicable to NPCA because the organization did not meet the funding conditions under the PSSDA.

The analysis in this case was similar to the two described immediately above.  Adjudicator Diane Smith agreed that the disclosure of the requested information would constitute an unjustified invasion of personal privacy, which in the circumstances could only be overcome if the “public interest override” in section 16 of MFIPPA applied.  However, she found there was a compelling public interest in disclosing the requested information which outweighed the purpose of the relevant exemption.

The decision is notable for providing an extremely helpful overview of the purpose of the compelling public interest section and how it has been applied:

Compelling public interest

In considering whether there is a “public interest” in disclosure of the record, the first question to ask is whether there is a relationship between the record and the Act’s central purpose of shedding light on the operations of government.  Previous orders have stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices.

A public interest does not exist where the interests being advanced are essentially private in nature.  Where a private interest in disclosure raises issues of more general application, a public interest may be found to exist.

A public interest is not automatically established where the requester is a member of the media.

The word “compelling” has been defined in previous orders as “rousing strong interest or attention”.

Any public interest in non-disclosure that may exist also must be considered. A public interest in the non-disclosure of the record may bring the public interest in disclosure below the threshold of “compelling”.

A compelling public interest has been found to exist where, for example:

  • the records relate to the economic impact of Quebec separation
  • the integrity of the criminal justice system has been called into question
  • public safety issues relating to the operation of nuclear facilities have been raised
  • disclosure would shed light on the safe operation of petrochemical facilities or the province’s ability to prepare for a nuclear emergency
  • the records contain information about contributions to municipal election campaigns

A compelling public interest has been found not to exist where, for example:

  • another public process or forum has been established to address public interest considerations
  • a significant amount of information has already been disclosed and this is adequate to address any public interest considerations
  • a court process provides an alternative disclosure mechanism, and the reason for the request is to obtain records for a civil or criminal proceeding
  • there has already been wide public coverage or debate of the issue, and the records would not shed further light on the matter
  • the records do not respond to the applicable public interest raised by appellant

In this case, the requestor noted that according to the September 2018 Auditor General’s report of the NPCA, “the core operations of the NPCA have been eroded to the point of standstill while managerial staff continues to reward itself with hefty pay raises”.  The NPCA argued that it had previously disclosed many financial documents that are more than sufficient to satisfy any public interest considerations, and further, that as the NPCA is not subject to the PPSDA, this fact should be weighed in favour of non-disclosure and that when this is taken into account, any public interest does not clearly outweigh the legitimate privacy expectations of the individuals to whom the information relates.

Citing the principles established in Order MO-2563 and the evidence of “epic turmoil” at the NPCA, Adjudicator Smith found that the public had a right to know exactly what NPCA management was doing regarding compensating themselves:

I find that the appellant has demonstrated that there is a compelling public interest in the salary information requested. I accept that not only are there financial mismanagement concerns at the NPCA, but also salary-related concerns about unfair hiring practices and improper compensation packages for the top administrators at the NPCA.

The information at issue was therefore ordered to be disclosed to the requestor.

Takeaways and Conclusions

One common theme in all of these cases appears to be that the employment information being requested is always for “senior employees” or “executives” of the relevant institution.  In each case, IPCO made reference to the PSSDA, noting that the employees whose information was being requested were all at or above the $100,000 threshold that would generally cause their salary information to be disclosed to the public on an annual basis.  However, the existence of the PSSDA was not effective as a shield against requestors — institutions never succeeded in convincing IPCO that the PSSDA represented some sort of “high water mark” for how much employment information institutions should be willing to disclose.  That said, the PSSDA does appear to be an important touchstone in each of the decisions discussed above, and it seems unlikely that, barring specific circumstances, a compelling public interest could be found in the disclosure of salary information for an employee whose salary is below the $100,000 PSSDA threshold.

Another takeaway is that the oft-cited dictum that “a public interest does not exist where the requester’s interests in a record are essentially private in nature” may be somewhat overstated.  IPCO has been willing to find a public interest in the disclosure of records even if the requestor’s own interests in the record are essentially private in nature, so long as the public stands to benefit from the record’s disclosure.

Because of the extremely helpful overview it provides, the Niagara Peninsula Conservation Authority (Order MO-3844) is a useful starting point when deciding whether the public interest override is applicable to a request.

Finally, institutions should take heed of the requestor’s tactic in the Niagara Peninsula Conservation Authority (Order MO-3844) decision of relying on allegations of mismanagement to make the case that a compelling public interest existed in the disclosure of the requested records.  Institutions who have been the subject of negative media reporting or unfavourable assessments by auditors may wind up more vulnerable to having compensation and other personal information “ordered out” by IPCO under the public interest override; or on the flip side, institutions who wish to disclose employment information (perhaps even against the wishes of the affected employee) may have a stronger basis for making such disclosure under the public interest override if the institution has been the subject of scandal, negative reporting, or poor assessments or audit results.

If you’d like to stay engaged with further updates and see pre-release previews and demos of the FOI Assist software, please follow the FOI Assist blog.  To subscribe, simply enter your email address at the bottom of the page then click the follow button.

Related Articles:

When is labour and employment information exempt from disclosure?

The Public Interest Override

References:

Regional Municipality of York Police Services Board (MO-2563) https://decisions.ipc.on.ca/ipc-cipvp/orders/en/item/133529/index.do?q=Order+MO-2563

York (Police Services Board) v. (Ontario) Information and Privacy Commissioner, 2012 ONSC 6175 https://www.canlii.org/en/on/onscdc/doc/2012/2012onsc6175/2012onsc6175.html

The Corporation of the Town of Orangeville (Order MO-3044) https://decisions.ipc.on.ca/ipc-cipvp/orders/en/item/134365/index.do?q=Order+MO-2563

Niagara Peninsula Conservation Authority (Order MO-3844) https://decisions.ipc.on.ca/ipc-cipvp/orders/en/item/423345/index.do?q=3844

 

Published by Justin Petrillo

I am creating FOI Assist™ software to help Ontario’s provincial and municipal government institutions of all sizes track and respond to Freedom of Information (FOI) requests. For most of my career I have been a lawyer, advising clients on commercial, intellectual property and FOI/privacy issues. From 2013 to 2015, I managed the FOI program for the Toronto 2015 Pan/Parapan Am Games Organizing Committee while serving as Legal Counsel to the Games. Prior to becoming a lawyer, I obtained a computer science degree and worked as a software developer at several well-known technology companies.

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