Nunavut’s privacy commissioner has called out the frequent use of the territory’s privacy legislation as a “proxy battleground” for human resources issues involving government employees.
Commissioner Graham Steele made the comments in a ruling that asked Nunavut’s Department of Human Resources (HR) to revisit missing attachments in a disclosure package for an education employee.
“There ought to be a better way… but there is not,” said Steele. The ruling underscores how employees, especially those in senior roles, may turn to access legislation as they seek documents about workplace conflicts and management concerns — sometimes piling up thousands of pages of records in the process.
Relationship with managers soured
The latest matter involved an employee whose relationship with senior managers soured, prompting them to request HR records related to their employment. HR provided 846 pages, but the employee said many references pointed to attachments or other records that were never included. The decision found the department “did not perform a diligent search,” specifying that “if a record is a responsive record, then any attachment to that record is also a responsive record.”
The employee’s access request and subsequent review revolve around the territory’s Access to Information and Protection of Privacy Act (ATIPPA). The ruling points to several missing attachments, identified by internal references such as “please see attached” or “I have attached the [meeting] notes.” The commissioner listed at least 10 instances where key records appeared not to have been disclosed. HR must now conduct a fresh search for those attachments, review them for any necessary redactions, and “disclose to the Applicant what can be disclosed.”
‘Blunt and unsuitable instrument’
In explaining why employees resort to the Act for HR documentation, Steele notes that the ATIPPA “is a blunt and unsuitable instrument” for complex personnel matters. It observes that human-resources disagreements become entangled with freedom-of-information processes, frequently leading to voluminous record releases. While the legislation is intended primarily for citizens to understand government operations, the lack of an alternative mechanism for employees’ workplace concerns often means “the ATIPP system groans under the strain.”
At the heart of the ruling is the question of whether HR conducted a thorough search for relevant records. The decision aligns with the established principle that “a reasonable search is one in which an experienced employee knowledgeable in the subject matter… expends a reasonable effort to locate records.” The commissioner cites repeated instances in which HR’s own emails mention or attach items that were absent from the final disclosure. It concludes that these omissions indicate HR failed to meet its duty to find and provide all responsive documents.
How ATIPPA should be applied
The decision also addresses how key provisions of the ATIPPA should be applied. Section 23 requires withholding personal information if disclosing it would be an “unreasonable invasion” of privacy. Steele says HR “over-used” section 23, as it has done in other recent files. “A name, by itself, is not enough to invoke section 23(1).” Rather, each instance must be carefully weighed to see if private details truly warrant withholding. The decision lists certain pages where the commissioner found no personal information or an insufficient reason to claim privacy protection. Those redactions must be undone.
Section 25.1, meanwhile, grants discretion to withhold details linked to “workplace investigations” (subsection b) and “employee relations advice” (subsection c). Steele ruled that section 25.1(b) was incorrectly applied to a draft public statement, since it was not created for an investigation. However, it deemed HR had legitimately invoked section 25.1(c) in other instances, safeguarding the right to ask for or deliver HR advice without fear of wide disclosure. Notably, it reminds the department that even when section 25.1(c) applies, the exemption is discretionary, which means HR may still choose to release the redacted information if it concludes disclosure is appropriate.
3,000 pages of disclosure packages
The employee involved in this matter had made “wide-ranging access-to-information applications,” resulting in disclosure packages totalling nearly 3,000 pages, including requests made to other government departments. The ruling stresses how the ATIPPA, lacking “the guardrails” of civil litigation, is often ill-suited for large-scale document demands in personnel disputes. The commissioner points out that in a court process, parties can rely on mechanisms like cost awards, confidentiality undertakings, and oral discoveries. Those tools do not exist in an ATIPPA framework, which can lead to unwieldy and exhaustive searches.
Another issue raised is the potential existence of records that may never have been created in the first place. The employee argued there should be minutes of certain meetings or notes from key discussions, but the ruling clarifies there is no “duty to document” in territorial legislation. This means if a meeting took place without official notes being taken, the decision-maker has no authority to order a department to create or reconstruct records that do not already exist.
Nevertheless, where attachments were clearly referenced but not included, the ruling leaves little wiggle room. “If the Minister accepts my recommendation to undertake a further search, HR should consult with the Applicant about other instances… that I have not listed.” It points to repeated reminders the commissioner has issued to HR in past decisions, warning that all attachments must be tracked, reviewed, and properly disclosed if they fall within the scope of a request.
Redacted materials
Regarding whether the applicant should receive any already redacted material the commissioner found irrelevant or already known, the decision is flexible. In some cases, “there was no point in making HR go back” because the employee had previously seen the content or had no real interest in it. At the same time, the ruling reaffirms that if material is relevant and not subject to a legitimate exemption, HR must remove the redactions.
Along with ordering HR to “exercise its discretion” when deciding whether to release information under section 25.1(c), the ruling underscores the fundamental principle that discretionary exemptions can always be revisited. Even if an exemption applies, the public body “must turn its mind to whether records should be released anyway,” ensuring transparency wherever possible.
For HR divisions and employment lawyers, the decision is a stark reminder that internal records management must be systematic when handling extensive file requests. Email chains with multiple attachments, references to text messages, or “ZIP folders” must all be traced and verified if they are truly responsive. Steele’s instructions indicate that any mention of attachments should prompt departments to confirm whether those documents are part of the final disclosure.
Despite these procedural clarifications, the decision begins and ends by emphasizing how human-resources tensions play out through freedom-of-information channels. In the absence of an alternative system, employees in dispute with employers may continue using the ATIPPA to gather material they feel is necessary for their case.
The commissioner’s stance is that this is far from ideal: “The ATIPPA is frequently being used as a ‘proxy battleground’ for the GN’s human-resources issues,” it quotes, cautioning that the legislation was never intended to resolve deeply rooted, multilayered workplace disputes.
For more information, see Department of Human Resources (Re), 2025 NUIPC 1 (CanLII).
