Nunavut’s privacy commissioner has recommended that the territory’s Department of Human Resources (HR) release an unredacted harassment investigation report to a former contract employee because it improperly applied privacy exemptions.
Commissioner Graham Steele concluded that HR erred in redacting significant portions of records requested by A.N., a former contract employee with the Department of Health who was not offered further contracts without satisfactory explanation.
Access-to-information requests
A.N. had filed a series of access-to-information requests with both the Department of Health and HR seeking records related to the non-renewal of their contract. On September 20, HR provided 143 pages of records but included substantial redactions, particularly in a harassment investigation report. A.N. requested a review of these redactions on Oct. 7.
Steele found that HR incorrectly applied section 23 of the Access to Information and Protection of Privacy Act (ATIPPA), which allows for exemptions to disclosure if it constitutes an unreasonable invasion of a third party’s personal privacy.
“For the reasons given in [Review Report 24-276], I find that HR erred in applying almost all the redactions in the disclosure package,” Steele wrote. “That applies, for example, to the investigator’s opinions about the witnesses’ evidence and credibility; the investigator’s conclusions; and other witnesses’ opinions about the Applicant.”
The commissioner noted that HR did not have the benefit of the previous report due to timing but highlighted that the Minister of Human Resources had accepted recommendations in the earlier case to release an unredacted report.
Some witnesses co-workers
In his analysis, Steele addressed specific differences in the current case, including the fact that some witnesses were co-workers rather than managers. He emphasized that while there might be instances where redacting a witness’s identity is appropriate, “there needs to be evidence to support a reasonable expectation of harm: ATIPPA, section 25.1(b). HR offers none.”
Steele examined instances where HR redacted statements from witnesses suggested by A.N. Despite one witness being reluctant to speak with the investigator, Steele found that the redacted information was not the witness’s personal information. “Section 23 cannot apply,” he stated. “Nor is there any evidence of reasonable expectation of harm under section 25.1(b), so section 25.1(b) cannot apply.”
Another redaction involved a potential witness who was not interviewed. HR had redacted the investigator’s reasons for this decision. Steele determined that this information was not personal and that no evidence supported a reasonable expectation of harm. “Section 23 cannot apply because it is not anyone’s ‘personal information,’” he wrote.
Personal relationship
HR also redacted mentions of a personal relationship between two government employees, even when A.N. had raised the relationship in their harassment complaint. Steele found no justification for these redactions. “The fact of this relationship was well-known to the Applicant. Indeed, it was the Applicant who raised it in their harassment complaint. In these circumstances, no purpose is served in redacting the mere mention of the relationship,” he noted.
The commissioner addressed the need for HR to review and potentially disclose the appendices attached to the investigation report. “I recommend that HR review the supporting documents (the ‘Appendices’) attached to the investigation report and release to the Applicant what can be released,” he stated, referencing a similar recommendation in a previous report.
Steele also found errors in HR’s redactions of other records, specifically a supplementary report concerning whether A.N. was an “employee” under the government’s disclosure of wrongdoing policy. HR had redacted the manager’s name, gender pronouns, the period during which they managed A.N., and some of their statements.
“The Applicant knows perfectly well the name of their manager, the manager’s gender, and the period during which the manager managed the Applicant. No purpose is served by redacting this information,” Steele wrote. He concluded that HR had misapplied section 23 in these instances as well.
In his recommendations, Steele urged HR to release the entire disclosure package without redactions and to review the supporting documents attached to the investigation report for possible disclosure. “Any redactions should be in accordance with this decision,” he said.
For more information, see Department of Human Resources (Re), 2024 NUIPC 26 (CanLII).
