MFIPPA Duty to Disclose: “Some Form of Connection” to Employment is Sufficient for Exemption

Gillian Tuck Kutarna, Guelph

The Information and Privacy Commissioner of Ontario ("Commissioner") recently upheld a Toronto District School Board ("Board") decision to deny a request made under Ontario's Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA").

The Board had conducted investigations into two human rights complaints.  The first related to an allegation that a number of employees at the complainant’s school had violated the Board’s Human Rights Policy.  The second alleged that Board employees had discriminated against an individual because of her involvement in the first complaint.  The complainant sought the production of interview notes and other materials arising from the Board’s internal investigation into these complaints.

In refusing the request for notes and records relating to the investigations, the Board relied on the exclusionary provisions of subsection 52(3) of MFIPPA, which state that records prepared or collected by an institution pursuant to proceedings, negotiations, or consultations “relating to labour relations or to the employment of a person by the institution” are exempt from MFIPPA and therefore do not need to be disclosed.

The complainant argued that the documents requested related to the role of the Board as “overseer of the educational environment of the students within the district, not as employer”.  In other words, complaints made pursuant to the Human Rights Policy in general seek to remedy systemic issues of discrimination, rather than trigger a disciplinary response against any particular employee named in the complaint, and therefore the exemption should not apply.

The Commissioner disagreed, holding that the records being sought arose in connection with the actions of Board employees and their perceived misconduct.  If misconduct had been found, sanctions could potentially have ensued.  Further, each employee attended the interview process with a union representative, with whom the Board had a collective bargaining relationship.  This established a sufficient nexus to satisfy the requirement that the records were “in relation to” employment-related matters under MFIPPA. 

This interpretation is consistent with previous decisions of the Commissioner in which subsection 52(3) has been the basis to exempt materials collected in the context of job competitions, an employee dismissal, a grievance, a disciplinary proceeding, and a "voluntary exit program".  In contrast, an organizational or operational review and civil litigation in which an institution was alleged to have been liable for the actions of its employee were not found to be closely connected enough to “employment related matters” to meet the subsection 52(3) test for an exemption.

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