Nunavut’s Information and Privacy Commissioner, Graham Steele, has ruled that the Department of Human Resources (HR) improperly redacted workplace harassment investigation reports and recommended they be released to the complainant without redactions.
The case involves a middle-management employee of the Government of Nunavut (GN), referred to as T.H., who filed a workplace harassment complaint against their manager. Around the same time, two employees managed by T.H. filed harassment complaints against T.H. HR referred all complaints to an external investigator, who produced separate reports for each case.
T.H. submitted an access request under the Access to Information and Protection of Privacy Act (ATIPPA) to obtain both investigation reports. HR disclosed the reports but with extensive redactions, citing section 23 of the ATIPPA, which pertains to the unreasonable invasion of a third party’s personal privacy.
In response, T.H. requested a review of the redactions. Commissioner Steele conducted the review under section 31(1) of the ATIPPA and found that HR erred in its application of section 23.
“The GN continues to struggle with the release of harassment investigation reports,” Commissioner Steele noted. “Harassment investigation reports are not exempt from disclosure. The tools for fashioning what can be released are in the ATIPPA, but the work must be done with care and finesse.”
HR’s approach criticized
HR’s redactions included names, pronouns, employment history, opinions, and portions of the investigator’s conclusions. Commissioner Steele found these redactions excessive and not in line with the requirements of section 23, which mandates consideration of all relevant circumstances before withholding information.
“It goes without saying that the Applicant knows the name and gender of the manager against whom they filed a harassment complaint,” he wrote. “No purpose is served by redacting them.”
He criticized HR’s automatic redaction of witnesses’ names and identities. “Redaction of witnesses’ names cannot be automatic. Like everything else in section 23, the decision to redact depends on consideration of all relevant circumstances,” Commissioner Steele stated.
In this case, the witnesses were senior officials within T.H.’s department. “They have absolutely no fear of retribution from the Applicant,” he noted. “The GN’s senior officials are not, one would hope, going to shade their statements merely because an applicant might read what they say.”
Misapplication of Section 23
Commissioner Steele found that HR’s interpretation of section 23 was flawed. The section allows for certain third-party personal information to be redacted but requires a nuanced analysis considering all relevant circumstances.
“Section 23 is probably the most difficult section in the whole ATIPPA. It is long, difficult to interpret, and requires careful consideration of all relevant circumstances,” he acknowledged. However, he emphasized that HR’s redactions did not meet the legal standards.
He pointed out that HR’s “Exemption Rationale” was confusing and incorrect. “I cannot understand it, even after reading it maybe a dozen times. I have not seen it before. It is not a correct statement of the law,” Commissioner Steele wrote.
HR appeared to assume that applicants might misuse disclosed records and used the redaction process to prevent any possible misuse. “But that is not what the ATIPPA says,” he countered. “HR is not free to make up its own processing rules.”
Key takeaways from this ruling
Commissioner Steele referred to previous detailed review reports that are directly relevant to this case, including Department of Executive and Intergovernmental Affairs (Re), 2021 NUIPC 13 (CanLII) and Department of Human Resources (Re), 2023 NUIPC 1 (CanLII). These reports provide guidance on handling harassment investigation reports under the ATIPPA.
He emphasized several key points:
- Life-Altering Documents: Harassment investigation reports can deeply affect an individual’s sense of worth and accomplishment in the workplace. Parties involved usually want to know in detail what the report says.
- Sensitive Balancing: A sensitive balancing of all relevant circumstances under section 23 is necessary to respect both the applicant’s right of access and privacy considerations. This does not lend itself to hard-and-fast rules; context matters.
- Inevitability of Personal Information: Such reports inevitably include a great deal of personal information about the people involved. When redaction is nearly impossible, disclosure should be favoured.
- Opinions as Personal Information: Under the ATIPPA, if someone has an opinion about an individual, that opinion is considered the individual’s personal information, and they have a right to see it.
- Limits to Disclosure: There are limits when harm can reasonably be expected to result from disclosure, but there must be evidence to support this expectation.
Specific redactions addressed
Commissioner Steele addressed specific categories of redactions:
- Names and Pronouns: Redacting names and pronouns made the reports hard to read and served no purpose, especially since T.H. was already aware of the individuals involved.
- Employment History: Redacting brief summaries of witnesses’ backgrounds was unnecessary. “That is not at all what section 23(2)(d) is getting at,” he stated.
- Opinions: Witnesses’ opinions about management style, which were central to the allegations, should not have been redacted. These are not “personal evaluations” as intended under section 23(2)(g).
- Investigator’s Conclusions: Portions of the investigator’s conclusions were redacted improperly. “Except in unusual circumstances that do not apply here, an investigator’s conclusions should not be redacted,” he wrote.
Failure to disclose supporting documents
Commissioner Steele also noted that HR failed to disclose supporting documents attached to the investigation reports. These documents are integral to the reports and should have been reviewed for possible disclosure.
“I recommend that HR review the supporting documents… and release to the Applicant what can be released,” he stated.
Recommendations and implications
In his conclusion, Commissioner Steele recommended that HR release the body of the investigation reports to T.H. without redaction and review the supporting documents for potential disclosure.
For HR professionals and employment lawyers, this ruling underscores the importance of correctly applying privacy legislation when handling access to information requests, especially concerning sensitive documents like harassment investigation reports.
The decision highlights that while privacy considerations are crucial, they must be balanced with the applicant’s right to access information. Redactions should not be made arbitrarily or excessively but should involve a “sensitive balancing of all relevant circumstances.”
For more information, see Department of Human Resources (Re), 2024 NUIPC 25 (CanLII).
