The City of Windsor was justified in withholding information from one of its workers regarding a complaint made about their conduct, Ontario’s privacy commissioner has ruled.
The worker sought a copy of a letter that was sent to the executive director of HR for the city. It contained allegations of misconduct by the worker in relation to their position as a city employee, and improper use of a city-issued cellphone.
In response to the complaint letter, the city retained outside counsel to investigate the allegation and for an opinion as to whether the employee abused their position as an employee in any way. The investigation ultimately exonerated the worker.
Request made under privacy legislation
The worker filed the request under the Municipal Freedom of Information and Protection of Privacy Act. They sought a variety of records from various city departments, and for communications between specific individuals.
The city issued a decision, and the worker appealed that to the Information and Privacy Commissioner (IPC) for Ontario. During mediation, the worker narrowed their request to the city for access to the letter of complaint made about them to the city.
The city granted access to the specified complaint letter and to 27 of its 33 attachments. The city said the information it withheld was exempt under the mandatory personal privacy exemption in section 14 of the act. It also took the position that the act did not apply to the records because they were employment-related records excluded from the act by section 52(3).
Section 52(3) excludes records concerning certain labour relations or employment-related matters.
Attempts at mediation failed, and the case ended up before the IPC, which was tasked with deciding if the worker was entitled to access to the six attachments the city held back.
The IPC noted that it takes a “whole record approach” to exclusions under section 52(3), meaning the record is examined as a whole and the exclusion cannot apply only to a portion of the record. It also noted that an institution like the City of Windsor may still “exercise its discretion to disclose records or information outside of the access regime in the act, as the city says it did by providing the appellant with parts of the complaint.”
The IPC’s ruling
The IPC said for it to find that section 52(3)3 applies, it must be satisfied that:
- the record was collected, prepared, maintained or used by the city or on its behalf;
- this collection, preparation, maintenance or use was in relation to meetings, consultations, discussions or communications; and,
- these meetings, consultations, discussions or communications were about labour relations or employment-related matters in which the city has an interest.
The IPC ruled that the record met each of the requirements in the act, and the city was therefore entitled to withhold the information.
“I accept the city’s position that meetings, consultations, discussions or communications took place regarding the information in the record, including discussions with external counsel retained to investigate on behalf of the city whether the allegations were founded,” it said.
For the third point, the IPC said: “Whether resulting in discipline or not, I am satisfied that information in the record as a whole relates to matters in which the city has an interest as an employer.”
The worker’s appeal was dismissed.
For more information see Windsor (City) (Re), 2022 CanLII 122358 (ON IPC)
