Former telco employee denied access to certain employment file information

PIPEDA Case Summary #2002-88

[Principles 4.9, 4.9.4, Schedule 1; section 9(3)(d)]

Complaint

An individual complained that a telecommunications company, with which he was formerly employed, refused him access to part of his personal information that he had requested.

Specifically, the complainant alleged that, in responding to his request for all the information in his employment file:

• the company withheld certain portions;
• the company failed to disclose positive, performance-related information;
• as there was a gap in the page numbering of some of the documentation, the complainant believed that several pages had been removed; and
• some of the information provided was illegible.

Summary of Investigation

The investigation entailed a detailed review of the information provided to the complainant, as well as the entire contents of his employee file and that contained in the company's electronic records.

The investigation revealed and the company did not dispute that it had in fact withheld certain information as it was relying upon an exempting provision of the Act. However, the Commissioner noted that the company did not so inform the complainant in writing as it was obliged to do. The information in question concerns grievances and a human rights investigation.

The investigation also revealed that the ostensible page-gap in the documentation was the result of a clerical error and that no pages were actually missing. It was also determined that some of the material provided to the complainant was not legible because of poor photocopies.

With regard to the individual's allegation that the company failed to include certain positive, performance-related information, the Commissioner established that there was no additional information pertaining to his performance.

Commissioner's Findings

Issued October 31, 2002

Jurisdiction: As of January 1, 2001, the Personal Information Protection and Electronic Documents Act applies to any federal work, undertaking, or business. The Commissioner has jurisdiction in this case because a telecommunications company is a federal work, undertaking, or business as defined in the Act.

Application: Principle 4.9 states that upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information. Principle 4.9.4 states that the information that an individual requests shall be provided or made available in a form that is generally understandable. Section 9(3)(d) states that ". an organization is not required to give access to personal information only if the information was generated in the course of a formal dispute resolution process".

The Commissioner was required to determine if the company had properly invoked section 9(3)(d). In other words could the withheld information be reasonably deemed to have been generated in the course of a formal dispute resolution process?

The Commissioner determined that, while the grievance documentation by its nature sought to resolve differences between parties and was, therefore, deemed to be a type of formal dispute-resolution process, documentation that was created as part of a human rights investigation was not. That is, the latter documentation was not generated for the purpose of settling a dispute but rather for the purpose of responding to allegations and providing a defence. The Commissioner, therefore, found that, by withholding the individual's personal information related to the human rights investigation, the company was in contravention of Principle 4.9.

The Commissioner also had to consider whether the company was in compliance with the requirement under Principle 4.9.4 to provide information in an understandable form. He determined that some of the information provided to the individual was indeed illegible due to the poor quality of the photocopies. Therefore, he found that the company did not meet its obligation under Principle 4.9.4. However, he noted that the company agreed to provide legible copies to the complainant.

The Commissioner concluded that the complaint was well-founded.

Further Considerations

The Commissioner recommended that:

• the company release to the complainant the withheld information related to the human rights investigation; and

• in future, the company should take the appropriate steps to meet its obligations under section 8(7) of the Act, which states that an organization refusing a request, must inform the individual in writing of the refusal, setting out the reasons and any recourse the individual may have under the Act.