Trucking company accused of refusing former employee's access request

PIPEDA Case Summary #2003-179

[Principles 4.1 and 4.9, Schedule 1; and sections 8(3) and 8(5)]

Complaint

A trucker complained that his former employer had refused his request for access to his personal information.

Summary of Investigation

The complainant had been dismissed from the trucking company's employ for cause. In the course of a union grievance over the grounds for the dismissal, he made a formal request under the Act for access to any and all information and data in his personal file held by the company in its local office, its head office, the home computer of the general manager, and any other place of storage. He filed his complaint with the Commissioner's Office when the company still had not responded after seven weeks.

On giving formal notification of the complaint, the Office learned that the company had not yet designated a privacy compliance officer and was not otherwise aware of its obligations under the Act. On the advice of the Office, the company immediately appointed a privacy officer and began processing the complainant's access request, eventually sending him copies of the records in his personnel file.

Believing that the company's general manager kept electronic files on employees in his home computer, the complainant noted the absence of any such information in the material provided by the company. The complainant's interpretation of a remark by the general manager, as reported by the complainant's union representative, served to reinforce the complainant's suspicion that the general manager was withholding information at his home. The general manager said that he did not recall having made any remark suggesting that he had information about the complainant in his home computer.

In a written representation and later in a sworn affidavit, the general manager denied holding information in any form at home about the complainant and insisted that the complainant had been provided with all available information. Likewise, the company privacy officer, after initiating a search of home and workplace computers by the individuals concerned, made a written representation to the effect that he was satisfied that no personal information existed about the complainant other than what had already been given to him. The complainant, however, continued to believe that the general manager was withholding information in a home computer.

Commissioner's Findings

Issued July 8, 2003

Jurisdiction: As of January 1, 2001, the Act applies to any federal work, undertaking, or business. The Commissioner had jurisdiction in this case because the inter-provincial trucking company was a federal work, undertaking, or business as defined in the Act.

Application: Principle 4.1: An organization is responsible for personal information under its control and must designate an individual to be accountable for the organization's compliance with the Act. Principle 4.9: Upon request an individual must be informed of the existence, use, and disclosure of personal information, be given access to it, and be able to challenge its accuracy and completeness and have it amended as appropriate. Section 8(3): An organization must respond to a request with due diligence and in any case not later than 30 after receipt. Section 8(5): An organization failing to respond within the time limit is deemed to have refused the request.

The Commissioner determined firstly that, at the time of the complainant's access request, the company had not yet designated an officer to be accountable for the organization's compliance with the Act. He found therefore that the company had been in contravention of Principle 4.1.

The Commissioner determined secondly that it had taken the company 98 days to respond to the request. He found therefore that the company had clearly failed to meet its time-limit obligation under section 8(3) and was thus deemed under section 8(5) to have refused the request in contravention of Principle 4.9.

He concluded that the complaint was well-founded.

Further Considerations

The Commissioner was satisfied that the complainant was finally in receipt of all information to which he was entitled from the company's office holdings.

As for the complainant's continuing belief that the company's general manager was withholding at home an electronic file of the complainant's personal information, the Commissioner commented that he did not have the power to pursue the matter further, since section 12(1)(d) of the Act prohibited him from entering a dwelling-house for purposes of an investigation.