The British Columbia Information and Privacy Commissioner (IPC) recently released a decision ordering the provincial pension regulator (Financial Institutions Commission or FICOM) to release certain information about union-run pension plans to the Independent Contractors and Business Association (ICBA), an employers’ association. What is interesting about this case is the basis upon which the unions and trustees of the union pension plans attempted to avoid disclosure; they argued that release of the requested information would harm the business interests of the pension plans.
ICBA requested copies of pension plan filings for 16 pension plans that the trade unions had sponsored. The information requested related to the following issues: the average annual pension paid; the average accrued monthly pension; the surplus or unfunded liability from the previous valuation report; and the surplus or unfunded liability from the current valuation report for each of the pension plans. ICBA has asked for this information to be extracted from the filings made with FICOM, rather than copies of the actual documents which were filed with FICOM. FICOM withheld some of the information under s. 21 of the Freedom of Information and Protection of Privacy Act (FIPPA) on the grounds that disclosure would harm the business interests of the pension plans. FICOM subsequently changed its decision to apply s. 21 of FIPPA and gave the trustees of the 16 pension plans formal notice under FIPPA that it would release the information in full. Trustees of 13 of the 16 pension plans (“Objecting Trustees”) objected to the disclosure of the information about their pension plans and requested that the IPC review the decision of FICOM to release the information.
The pension plans were all registered under the Pension Benefits Standards Act (PBSA) which includes a provision allowing any person to request pension plan documents (generally understood to be the plan texts and amendments, rather than filings regarding funded status). This is unlike most other provinces, which limit access to pension information to employers, members and other beneficiaries of pension plans. (As an aside, British Columbia will be enacting new pension legislation in 2014 and has not carried this broad right of access through to the new legislation.)
In opposition to the disclosure, the unions and Objecting Trustees made the following arguments:
1. The Objecting Trustees asserted that despite being averages, two pieces of requested information “provide personal information about the members of the plans, being the income plan members draw in retirement and the amount Plan members accrue each year before reaching retirement.” The Objecting Trustees referred to this as “sensitive personal information about its members”.
The IPC found that because the information consists of only average amounts, the information at issue was not about identifiable individuals and the information would also not reveal information about identifiable individuals, and therefore did not constitute “personal information”.
2. The Objecting Trustees argued, with the support of FICOM, that they submitted the filings from which the requested information would be obtained in confidence. Both the Objecting Trustees and FICOM took the position that s. 22 of the PBSA did not apply to financial filings, only pension plan documents, and the financial filings were submitted in confidence.
The IPC accepted that the filings were submitted in confidence and also found that just because the filed documents may be available to pension plan members does not make such documents widely or publicly available.
3. The Objecting Trustees and the unions argued that ICBA’s motives were tainted with anti-union malice and that the ICBA’s goal is to promote an “open-shop” workplace. The unions focused on the fact that the ICBA offers retirement savings plans (group RRSPs) that directly compete with the union pension plans. The Objecting Trustees argued that FIPPA is not intended to give a competitive advantage, and that it is relevant that the ICBA is not seeking the information in order to ensure that FICOM is accountable, but to assist its own members in their competition for labour.
With respect to the harm to the pension plans or the unions, the IPC held that the ICBA’s motivations in seeking release of the information cannot be relevant to the outcome of the FIPPA analysis and specifically stated that whether the ICBA was motivated by a legitimate desire to promote government accountability or by its opposition to unions was not a matter which needs to be adjudicated.
4. The Objecting Trustees also argued that the information at issue would be used to “undermine political and economic support for the pension plans” by allowing ICBA to generate a comparison between the pension benefits paid and accrued under the plans and the benefits paid under RRSP arrangements, with a particular focus on the under-funded status of the union pension plans. Similarly, the unions also argued that disclosure would harm their financial interests in collective bargaining on the basis that if an employer was aware of the actual funded status of the pension plan, this would significantly and negatively affect the bargaining position of union with respect to negotiating employer contributions to the pension plan.
FICOM also recognized that the type of information requested “could reasonably be expected to harm significantly the competitive position of the union, and interfere significantly with the negotiating position of the sponsoring union and other union and non-union employers when negotiating work rates since the financial information is key to establishing competitive wage or bid rates and securing business contracts”. However, it decided to release the information because “the date of the data is no longer such that it would place the union sponsors under a competitive disadvantage or interfere with labour relations to the extent that significant harm might reasonably result from the disclosure of the records.”
As to whether the release of the information requested regarding the pension plans would cause harm to the business interests of the pension plans or the unions, the IPC was not persuaded that disclosure of the information at issue could reasonably be expected to cause the pension plans to lose members. The IPC also accepted that the under-funded status of the pension plans was widely and publicly known, as it has been the source of public news and information for some time. The IPC also did not accept that the release of the information would enable ICBA to develop significantly more attractive retirement vehicles than the registered pension plans offered by the unions. Finally, the IPC found that past disclosures of similar information have failed to evidence the harm argued by the Objecting Trustees and the unions and the IPC found that the assertion the pension plans would lose members was merely speculative and was not supported by objective evidence.
As a result, the IPC ordered FICOM to release the requested information to the ICBA.