On December 22, the Newfoundland and Labrador Supreme Court (Trial Division ) held that the amount of taxable income earned by a Newfoundland public sector employee is not accessible under the Newfoundland Access to Information and Protection of Privacy Act.
The analysis ought to have turned exclusively on the deeming provision embodied in section 40(2)(f), which reads as follows:
A disclosure of personal information is not an unreasonable invasion of a third-party’s privacy where… (f) the information is about a third party’s position, functions or remuneration as an officer, employee or member of the public body or as a member of a Minister’s staff
This “deeming provision” is intended to foster transparency regarding public sector employment and compensation. The word “remuneration” is used in contrast to the phrase “salary range” that appears in other provinces’ access and privacy statutes – an indication that the Newfoundland legislature intended information about the specific salary earned by every public sector employee to be accessible to the public. This intent is consistent with a recommendation made by a legislative committee, which stated “The Committee concludes it is unfair to single out employees at any particular income level, and recommends that salaries and benefits of all employees a public bodies be subject to disclosure.” The language of the statute and the legislative context therefore strongly suggest that the Newfoundland legislature chose against a “sunshine list” model of public sector salary disclosure that requires proactive disclosure of salaries over a threshold amount and, instead, created a broad right of access to specific salary information upon request.
The Court failed to grasp this text and context and accepted an argument that the above deeming provision does not apply because does not specify that it precludes the disclosure of remuneration information together with an individual’s name. It ought to have accepted the Government’s and the Privacy Commissioner’s argument that such specification is unnecessary given the function of the deeming provision. This decision should be appealed.
NLTA v Newfoundland and Labrador English School District, 2016 NLTD(G) 211.
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