Elected officials not ’employees,’ rules Newfoundland and Labrador’s privacy commissioner

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A municipality in Newfoundland and Labrador has been ordered to release redacted information concerning an allegation of sexual harassment against an elected official.

The ruling is of interest, in part, because the Office of the Information and Privacy Commissioner (OIPC) for Newfoundland and Labrador ruled that because the case involved an elected official — and not an employee — the investigation being conducted did not constitute a “workplace investigation” under the legislation.

The ruling, involving the Town of Witless Bay, was issued after a complaint was submitted under the Access to Information and Protection of Privacy Act, 2015 (ATIPPA, 2015).

It sought records related to the allegation of the breach of the Town’s sexual harassment policy against said elected official.

The Town responded to the request by withholding all responsive records, citing sections 33 and 40 of the Act. Dissatisfied with the Town’s response, the complainant lodged a complaint with the Office of the Privacy Commissioner, leading to a formal investigation.

The Town’s position versus the complainant

The Town’s position was that it was required to withhold the records under section 33, as the investigation into the harassment complaint was still ongoing, and releasing the records could impact the investigation.

Additionally, they argued that releasing the records would constitute an unreasonable invasion of the elected official’s privacy under section 40 of the Act, potentially harming their personal and professional reputation.

On the other hand, the complainant, who was also the complainant in the harassment complaint and access complaint, argued that they were entitled to receive the requested records.

The ruling: Elected official not an employee

The main issues addressed in the ruling were whether sections 33 and/or 40 applied to the responsive records.

The Commissioner first determined if section 33 applied by assessing whether the investigation fell under the definition of a “workplace investigation” as specified in ATIPPA, 2015.

However, based on the employment status of the named elected official, who was considered an elected official of the Town, it was determined that the investigation did not constitute a “workplace investigation” under the Act, and section 33 did not apply.

“As such, as an elected official of the Town, ATIPPA, 2015 does not grant the same protections to the named elected official who is the respondent to the harassment investigation as those afforded to an employee,” the OIPC said.

The Commissioner further clarified that even if the elected official were considered an employee under the Act, section 33 would not apply since no actual investigation had taken place at the time of the access request.

As the complainant in the access request was also the complainant in the workplace investigation, the Commissioner found that they would be considered a party to the investigation. As a result, if section 33 were applicable, the Town would be obligated to provide the complainant with all relevant information.

Regarding section 40, the Commissioner addressed three types of personal information in the records: the applicant’s personal information, personal information of members of the Town, and personal information of third parties.

It was determined that releasing the applicant’s own personal information was not an unreasonable invasion of privacy, as per section 40(2)(a) of ATIPPA, 2015.

Redactions necessary

However, some redactions were necessary for personal information of members of the public body and a third party, in accordance with section 40(2)(f) and the Act’s privacy requirements.

In conclusion, the Commissioner recommended that the Town of Witless Bay make the necessary redactions and provide the records to the complainant within 10 business days.

As per ATIPPA, 2015, the head of the Town is required to provide written notice of their decision regarding the recommendations to the Commissioner and any person who received a copy of the report within 10 business days of receiving the report.

For more information, see Witless Bay (Town), 2023 CanLII 64140 (NL IPC)

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