Federally-regulated employers should pay heed to OPC report of findings 2013-004, issued in July 2013. It contains the most detailed guidance on how to administer requests for access to personal information about employees that is received from other employees in confidence – information sometimes called “mixed personal information.”
The OPC adopts the case-by-case balancing of interests approach endorsed by the Federal Court of Appeal in a Privacy Act case called Pirrie: “In determining the right to have access to this information under PIPEDA, the interests of the individuals concerned should be balanced against each other along with the public interest for and against disclosure.”
This test does not support a “bright line,” so the OPC guidance is welcome. It uses 2013-004 to distinguish between two scenarios:
- The OPC held that notes containing peer feedback that an employer received in conducting a routine performance feedback process were exempt from the right of access. It helped that the employer had provided the complainant with a high-level summary of feedback and helped that the complainant himself had expressly promised to his peers that their feedback would be given anonymously.
- The OPC distinguished its prior treatment of information gathered in an internal investigation from witnesses when the investigation led to the complainant’s dismissal from employment. The OPC affirmed the complainant’s right of access in this scenario, but specified that the complainant required access to her personal information “as part of her efforts to be re-instated in her position,” which suggests that the complainant had either commenced litigation or that litigation was reasonably contemplated. The OPC also noted, “there were no formal assurance made that the information the investigation participants provided would be kept confidential.”
This gives federally-regulated employers some indication of the OPC’s perspective on a common and significant access issue, though the analysis invited by the Pirrie test is very contextual and outcomes will differ based on a wide range of potentially relevant facts. While the OPC’s decision on access to information gathered from witnesses in an internal investigation might be of some concern to employers, employers cannot provide witnesses with an absolute promise of confidentiality given witness statements may be producible in litigation. If the OPC decision merely suggests that witness statements are likely to be accessible under PIPEDA when litigation is reasonably contemplated it will be rather harmless in its impact.
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