A recent decision from the Information and Privacy Commissioner of the Northwest Territories determined that the Department of Municipal and Community Affairs (MACA) must fully disclose a workplace investigation report to the employee who was the subject of the investigation, after improperly applying redactions.
The case involved an employee, identified as A.B., who requested access to a workplace investigation report concerning allegations of misconduct, including harassment, discrimination, and sexual harassment.
MACA provided a redacted version of the report, citing provisions of the Access to Information and Protection of Privacy Act (the Act) that it argued justified withholding certain information. A.B. sought a review of those redactions by Commissioner Andrew E. Fox.
The Commissioner found that, as the respondent in the investigation, A.B. was entitled to access all relevant information in the report under section 24.2(3) of the Act. That provision requires public bodies to disclose all relevant information from a workplace investigation to a complainant or respondent.
Jurisdiction and issues
The Commissioner reviewed MACA’s decision under sections 14(1)(a), 21(1)(a), and 23(1) of the Act, assessing whether the redactions were justified under exemptions for advice or recommendations, safety and mental health risks, and personal privacy.
Advice and Recommendations (Section 14(1)(a)): MACA argued that certain portions of the report contained analysis or findings that should be exempt from disclosure as advice or recommendations. However, the Commissioner found that the report’s purpose was to present factual findings rather than policy advice.
The investigation’s terms of reference explicitly stated that investigators would not make recommendations. Since section 14(1)(a) only applies to advice or recommendations aimed at influencing decision-making, and the report contained only factual analysis, this exemption did not apply.
The Commissioner ordered that redacted passages containing witness credibility assessments, investigator findings, and factual statements be disclosed. A single exception was made where a specific recommendation was identified in the final report.
Threat to Safety or Mental Health (Section 21(1)(a)): MACA claimed that disclosure of the full report could harm the mental health of staff who participated in the investigation. However, the Commissioner emphasized that section 21(1)(a) requires more than a speculative possibility of harm—it must be reasonably expected.
MACA provided no evidence that any employees had suffered mental health impacts from the investigation or that disclosure would create a risk to their well-being. The Commissioner noted that while workplace investigations often involve difficult subject matter, that alone does not justify withholding information from a respondent entitled to due process. Accordingly, the Commissioner ruled that section 21(1)(a) did not apply, and those redactions must be removed.
Personal Privacy and Third-Party Information (Section 23(1)): MACA also relied on section 23(1), which prohibits disclosure of third-party personal information where it would be an unreasonable invasion of privacy. Specifically, it cited provisions related to employment history and identifying information tied to other individuals.
However, the Commissioner pointed to section 23(4)(c), which states that if another Act requires disclosure of information, it is not an unreasonable invasion of privacy. Because section 24.2(3) of the Act explicitly requires disclosure of relevant workplace investigation information to complainants and respondents, the Commissioner found that the privacy exemption under section 23(1) did not apply.
Legislative interpretation and precedents
The Commissioner considered previous cases from Newfoundland and Labrador, where similar privacy legislation exists. While MACA cited those cases to argue that section 24.2(3) does not override privacy exemptions, the Commissioner distinguished those rulings, noting that the Northwest Territories’ legislation explicitly mandates disclosure under section 24.2(3), and this requirement satisfies the conditions of section 23(4)(c).
Conclusion and order
The Commissioner ordered MACA to remove the redactions and provide A.B. with a fully unredacted version of the workplace investigation report, with the exception of a single passage containing a recommendation. The department must comply within 20 business days and report back on its compliance.
The decision reinforces the requirement that workplace investigation reports be fully disclosed to the employees they concern, ensuring procedural fairness while balancing privacy considerations within the statutory framework.
For more information, see Department of Municipal and Community Affairs (Re), 2025 NTIPC 82 (CanLII).
