A former municipal worker is entitled to see a copy of a workplace investigation report into his conduct, the Supreme Court of Newfoundland and Labrador has ruled.
This was despite the fact some of the co-workers interviewed during the investigation expressed fear about reprisals should he find out their identities.
Background
The worker was employed by the Town of Lewisporte, and sought to receive a copy of the report after it was finalized. The Information and Privacy Commissioner recommended it release the report to the worker, a move which the town resisted and appealed.
It asked the court for a declaration that it not have to comply with the recommendation.
External investigator hired
The investigation and report was conducted by Sheilagh Murphy, a lawyer who was hired by the town. She was looking into alleged breaches of workplace policies by the employee.
The town refused the request — relying on sections of the province’s Access to Information and Protection of Privacy Act (ATIPPA).
But the court shot down most of its arguments for refusing to hand over a copy.
Solicitor-client privilege
The court was careful to underline the importance of solicitor-client privilege. But not all work that lawyers do entails giving legal advice, it said.
“The issue of whether solicitor-client privilege applies to workplace investigation reports has been considered numerous times by Canadian courts,” it said. “The key question is not whether the lawyer was retained to do an investigation but whether the investigation was related to the rendering of legal advice.”
In this case, the lawyer was not acting in her professional capacity as a lawyer when she prepared the report nor did it entail giving legal advice.
Continuum of communication
Second, the town took the position that, even if Murphy wasn’t giving advice to the town, it was part of the “continuum of communication” in which legal advice was sought and given by the town’s lawyer.
That argument didn’t fly, simply because it could mean that a party could claim solicitor-client privilege over a workplace investigation “just by retaining the investigator through a lawyer,” it said.
Litigation privilege that has not expired
The worker’s dispute over severance had been settled and he signed a release in favour of the town, the court said.
But the town said the worker’s lawyer has stated verbally to its lawyer that he has considered bringing a complaint of harassment again the town and has threatened litigation in relation to breach of privacy.
The court said there was no “ongoing or reasonably apprehended litigation” relating to the report itself.
“If the Report ever was protected by litigation privilege, the indications are that the privilege expired when the employment dispute between the employee and the Town was settled,” the court said.
Does disclosure threaten safety or health of a witness?
One of the exceptions under ATIPPA permits the town to withhold information if its disclosure could “reasonably be expected to threaten the safety or health of a person other than the applicant.”
Here, the town pointed to statements from individuals interviewed who were “so fearful of reprisals that they would only provide examples to support their allegations if Ms. Murphy assured them that she would not attach their name to the information.”
Murphy did not attach their names to the report as a result.
“Their expressed concern was met by Ms. Murphy. There is no evidence that they were fearful of reprisals against them if their names were not used,” the court said.
The town also pointed out that the worker made a “joke” to staff more than two years before the report was written that involved violence, particularly sexual violence.
“If true, there was nothing funny about it,” the court said. “However, to extrapolate from this that the employee may do something violent or cause harm if portions of the Report were disclosed to him now is highly speculative, to say the least.”
Disclosure harmful to personal privacy
Here, the town found a sympathetic ear in the court.
Section 40 of ATIPPA requires the town to withhold personal information if its disclosure would be an unreasonable invasion of a third-party’s personal privacy. The definition includes a non-exclusive list of personal information such as a person’s name, sex and family status.
The town sought to redact portions of the report based on this — while the worker argued his right to see it trumps the exceptions under section 40. The court disagreed and allowed the redactions.
However, the court had concerns about some of the information the town was redacting — potentially going too far — and gave the parties 30 days to agree upon what information is personal and should not be disclosed.
For more information see Lewisporte (Town) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2022 NLSC 130 (CanLII)
