Nunavut’s Information and Privacy Commissioner says the territorial Department of Human Resources (HR) followed the law when it destroyed old job competition files. However, the commissioner found that the department should release more information from the remaining records it still holds.
The person who made the request for the information, referred to only as “the Applicant,” had applied for 56 jobs with the Government of Nunavut over nine years without success. They asked HR for a wide range of documents, including “employment records,” “legal proceedings,” and “correspondence.”
They also listed 19 specific points they wanted answered. These included details such as the screening criteria, the members of the selection committees, written test and interview results, and why other candidates were chosen over them.
Some records released
HR gave the Applicant some records — 116 pages at first, followed by a second set of 83 pages in November. The department explained that it had only kept files for the last two years. Older job competition records had been destroyed as allowed by law. HR also created a summary table with details about 16 competitions from the previous two years. This table listed the job positions, reference numbers, departments, selection panel members, whether the Applicant made it past the initial screening, their test and interview scores, and how many people applied. Still, many of the Applicant’s questions were not fully answered by these records.
In the final report, Commissioner Graham Steele wrote, “HR disclosed records about 16 competitions over the previous two years. HR said the files for older competitions had been destroyed.” He added, “I find that HR had lawful authority to destroy the older records,” noting that it was done under an approved records disposition authority. The commissioner explained that proper disposal of old records is part of good record-keeping. There was “nothing untoward” about HR’s actions, he concluded.
Right of access to records, not information
However, the commissioner made it clear that while ATIPPA gives people the right to request records, it does not give them the right to demand information that does not already exist in a recorded form. “Nunavut’s access-to-information law … gives applicants a right of access to records, not a right of access to information,” he wrote. If the Applicant’s questions could not be answered by existing records, the department was not required to create new ones.
A key issue in this case was whether HR had made a “diligent search” for records. Under ATIPPA, public bodies must make every reasonable effort to find and release relevant records. Quoting earlier cases, the commissioner described a proper search as one done by an “experienced employee knowledgeable in the subject matter … who expends a reasonable effort to locate records.”
After reviewing what HR did, the commissioner was satisfied that the search was reasonable. He found no solid reason to believe HR had missed any records. The Applicant’s requests included documents about background checks and other steps taken later in the hiring process, but the commissioner noted there was no sign such steps were ever reached in these competitions. “There is no logical reason why such records should exist,” he wrote.
While the commissioner agreed that HR did not have to create new records or answer questions that went beyond existing documents, he did say HR’s response could have been better in some areas. The Applicant was given only a summary table instead of the original records for 16 recent competitions. “HR’s disclosure of a summary table of information, rather than the records themselves, did not fully comply with the ATIPPA,” the commissioner stated.
HR asked to relook at files for 16 job competitions
He recommended that HR now look at its files for these 16 competitions again. In particular, the commissioner said HR should release records that show the screening criteria and how they were applied to the Applicant. HR should also share any records that explain how the Applicant’s test and interview scores were decided. “If there are records relevant to the assignment score, they should be disclosed,” he wrote. The commissioner noted that disclosing such details would not breach any ATIPPA exemptions. Scores for tests or interviews do not reveal the questions themselves or affect future competition fairness.
The Applicant also wanted information about other candidates, such as their scores. The commissioner said HR was right to refuse that. Even if the names were removed, it would still be possible to figure out who these successful candidates were, since the names of GN employees are public. “That would … be insufficient protection of their personal privacy,” the commissioner wrote. Thus, sharing other candidates’ scores could be an “unreasonable invasion” of their privacy.
The report also looked at two redactions in an internal HR email. These sentences had been blacked out under section 23 of the ATIPPA, which concerns personal privacy. The commissioner decided that section 23 did not apply because there was no personal information in those comments. But he allowed the redactions under a different section of the law, section 14(1)(b). This section lets public servants discuss ideas without worrying that every thought will be made public. Although this was a “borderline” decision, he allowed the redactions since the main substance of the discussion had already been released.
In the end, the commissioner’s main recommendation was that “HR review its job competition files for additional, existing records responsive to the Applicant’s request, specifically regarding the screening criteria and how they were applied to the Applicant; details of the Applicant’s score on the written assignment; and details of the Applicant’s score on interviews.” This applies only to the more recent competitions, since the others were lawfully destroyed.
Throughout his report, the commissioner stressed that access laws require the release of existing records, not explanations or new documents. The final decision draws a clear line: while an applicant may ask many questions, a public body is not required to create answers if no records exist. In this case, HR lawfully destroyed old files and gave what records it had. But the commissioner believes HR should now find and release any remaining details from existing documents about how it judged the Applicant’s qualifications, test results, and interview performances.
For more information, see Department of Human Resources (Re), 2024 NUIPC 29 (CanLII).
