Newfoundland and Labrador’s acting Information and Privacy Commissioner ordered Newfoundland and Labrador Hydro (NL Hydro) to disclose in full a third-party compensation review it had previously withheld under several discretionary exceptions.
The case centres on a written report, commissioned by NL Hydro and submitted on June 13, 2024, assessing appropriate comparators for total compensation packages for non-bargaining employees of the Crown-owned utility.
The report, titled “Total Compensation Program Review – Part I (Compensation Segmentation and Comparator Group Approach),” had been withheld in its entirety.
NL Hydro initially cited sections 29(1)(a), 35(1)(d), (f), (g), and 38(1)(a) and (b)(i) of the Access to Information and Protection of Privacy Act, 2015 (ATIPPA, 2015), claiming that releasing the report would reveal policy advice, harm the financial interests of the public body, or prejudice its labour relations and bargaining position. But the Commissioner found that NL Hydro failed to demonstrate how any portions of the report met these legal thresholds.
“The Complainant made an access to information request to Newfoundland and Labrador Hydro for a report it had commissioned about employee compensation,” the decision states. “NL Hydro withheld the report in its entirety” citing multiple sections of ATIPPA, 2015. The Commissioner concluded that NL Hydro “failed to meet its burden of establishing that the exceptions apply to any particular parts of the report.”
At the centre of the dispute is a request made by a complainant for access to a document referenced in Order in Council OC2023-202. According to the ruling, that order instructed Nalcor Energy’s Board of Directors to contract “a qualified third party” to review the appropriate comparator for total compensation of non-bargaining positions at Nalcor, and to provide a written report of its findings to the Minister of Industry, Energy and Technology within six months.
In response, NL Hydro engaged a third party, Southlea Group LP, and received the compensation report in two parts. The complainant requested access to the written report, believing its release would serve the public interest. NL Hydro, after consulting with the Department of Industry, Energy and Technology and the third parties involved in the report’s creation, refused disclosure of the entire document.
Report would provide advantage to unions, negotiating parties: NL Hydro
NL Hydro argued that releasing the report would reveal “advice, proposals, recommendations, analyses or policy options” and claimed that the “entirety of the Compensation Report contains compensation related information which may inform recommendations from Newfoundland and Labrador Hydro to Government.” It further contended that releasing the information would be “premature,” providing unions or other negotiating parties with an advantage. As NL Hydro stated in its submissions: “Third parties, such as unions, could significantly gain from the premature release of the Compensation Report. Total compensation and other comparable factors would give unions an unfair negotiating advantage.”
The company also invoked sections 35(1)(f) and (g), suggesting that the report’s disclosure would reveal “positions, plans, procedures, criteria or instructions” and risk prejudicing the financial or economic interests of both the province and NL Hydro. The report, NL Hydro said, would have “lasting impacts on future negotiations,” and disclosing its contents could “provide unions with an unfair competitive advantage at the bargaining table.”
Similarly, NL Hydro cited section 38(1)(a) and (b)(i) to argue that the report contained confidential labour relations information.
It explained that “the compensation report in question has always been treated consistently as confidential,” adding that “the only individuals who have been granted access to this Compensation Report are those in the Human Resources department of Nalcor Energy who have been directly involved in negotiations relating to compensation.”
The complainant, identified only by initials, T.H., responded by questioning why releasing “appropriate comparators for the total compensation package for non-bargaining positions” would negatively affect the Crown-owned utility. “I want to see the requested report,” T.H. stated to the Commissioner’s Office, adding, “I do not see how releasing appropriate comparators … would negatively impact the Crown owned utility.”
Commissioner’s ruling
Upon formal investigation, the Commissioner concluded that NL Hydro did not meet the statutory burden of proof required under section 43 of ATIPPA, 2015. “NL Hydro’s submissions speak to the Compensation Report as a whole and do not address specific information within the report,” the decision notes. “As such, we cannot conclude that NL Hydro has met the burden of demonstrating that any information within the Compensation Report is rightly subject to any of the exceptions it has cited.”
The Commissioner criticized NL Hydro’s approach of treating these “information-level” exceptions as if they were record-level ones. Under ATIPPA, 2015, discretionary exceptions require a careful, line-by-line review, followed by a determination of whether certain information may be severed. Section 8 of the Act obliges public bodies to release all information not covered by a valid exception. According to the decision, it was “clear that NL Hydro applied these exceptions as if they were record-level style exceptions to access rather than conducting a line-by-line review.”
Because NL Hydro withheld the entire 30-page report without segregating potentially sensitive content from what could be released, the Commissioner stressed the need for the public body to exercise discretion. “[I]t must then reflect on the fact that each of the claimed exceptions are discretionary,” the ruling states, noting that NL Hydro should consider whether any claimed exceptions legitimately apply, and if so, whether the public interest override provision at section 9(1) compels release despite those exceptions.
The Commissioner ultimately determined that, since NL Hydro had not established the applicability of any exceptions to specific information, it could not continue to withhold the record. As the decision notes, “Where a public body has not met the burden of proof, this Office has no choice but to recommend disclosure of the responsive records.”
The Commissioner’s recommendation is that NL Hydro “disclose the Compensation Report to the Complainant within 10 business days.” Under section 49(1)(b) of the Act, NL Hydro must provide written notice of its decision to the Commissioner and to those who received the report within 10 business days of receipt.
For more information, see Report A-2024-054.
