Newfoundland and Labrador’s Information and Privacy Commissioner has ruled that the Department of Digital Government and Service NL was right to withhold witness statements from an injured worker who sought complete transparency.
The report was requested by the complainant, who was involved in the accident and is also the owner of the company subject to the investigation. The ruling highlights the balance between the right to access information and the need to protect confidential sources in occupational health and safety investigations.
Background
The case arose when the complainant made an access to information request for a report issued by the Department’s Occupational Health and Safety (OHS) division regarding the accident in which they were injured. The Department provided the report but withheld witness statements and names, citing sections 31(1)(d) and 40(1) of the Access to Information and Protection of Privacy Act, 2015 (ATIPPA, 2015).
The complainant argued that as the subject of the report, they were entitled to all information contained in it.
The Department’s position was that witness statements were given under the expectation of confidentiality, which is essential to encourage individuals to participate in OHS investigations. The Department also cited section 40(1), which protects personal information from disclosure if it constitutes an unreasonable invasion of privacy.
Withdrawing confidentiality
In her decision, Acting Commissioner Jacqueline Lake Kavanagh agreed with the Department, noting that “the information provided to the OHS investigators was given under an expectation of confidentiality and that the release of the witness statements would reveal the identities of the witnesses.”
She emphasized the importance of confidentiality in such investigations, stating, “Withdrawing confidentiality once it has already been provided can undermine future OHS investigations where an offer of confidentiality may be appropriate.”
The ruling clarified that the definition of “law enforcement” in ATIPPA, 2015, which includes investigations under the Occupational Health and Safety Act, is broad.
This interpretation aligns with previous decisions by the OIPC, such as A-2021-037, which found that certain investigations under the Canadian Transportation Accident Investigation and Safety Board Act met the definition of law enforcement because they could lead to penalties or sanctions.
The decision also referenced Alberta’s Office of the Information and Privacy Commissioner Orders F2013-37 and 99-010, which support the notion that confidentiality is crucial in law enforcement matters to protect individuals from retribution and encourage witness participation.
Three components met
In examining the application of section 31(1)(d), Commissioner Lake Kavanagh outlined three components that must be assessed: whether the information pertains to law enforcement, whether it was provided by a confidential source, and whether its disclosure would reveal the source’s identity.
She concluded that all three conditions were met in this case.
The Commissioner also addressed the application of section 40(1) concerning personal information. She noted that the Department had appropriately withheld the names of private individuals involved in the accident and the response, as their disclosure would be an unreasonable invasion of privacy.
However, the names of provincial government employees who responded as part of their duties were disclosed, as this did not constitute an unreasonable invasion of personal privacy.
In considering section 40(5)(c), which pertains to whether personal information is relevant to a fair determination of the applicant’s rights, the Commissioner referenced Report A-2016-031. This report established a four-part test to determine the applicability of section 40(5)(c), which includes assessing whether the right is legal and related to an ongoing or contemplated proceeding. In this case, the Commissioner found that there were no ongoing or contemplated proceedings, rendering the application of section 40(5)(c) unnecessary.
The ruling concluded with a recommendation that the Department maintain its position on withholding the information. The Commissioner stated, “Given the purpose of confidentiality and the benefit it provides those conducting an investigation, the confidentiality given to a witness must remain in place indefinitely.”
For more information, see Report A-2024-034.
