Assistant Commissioner considers the nature of certain dispute resolution processes in denial of access complaint

PIPEDA Case Summary #2006-330

(Principle 4.9; paragraphs 9(3)(a) and 9(3)(d))

An employee of a telecommunications company claimed that her employer was refusing to provide her with all of the personal information she felt she was entitled to receive. The company did eventually provide her with additional information, but withheld the rest, claiming that it was protected by solicitor-client privilege or that it had been generated in the course of a formal dispute resolution process.

In this resolved complaint, the Assistant Privacy Commissioner considered the resolution processes involved – the employee had filed a grievance concerning her benefits, as well as a complaint against the company’s medical director with the provincial college of physicians. The Assistant Commissioner agreed that the company could rely on exemptions under the Personal Information Protection and Electronic Documents Act to deny access to documents generated during the course of these processes, and also agreed that the solicitor-client exemption had been properly applied.

The following is an overview of the investigation and Assistant Commissioner’s findings.

Summary of Investigation

The complainant wrote to her employer, requesting access to her medical file held by the company’s health unit. She received a package of information, and a response indicating that the company had applied an exemption provided under the Act, allowing an organization to withhold information that is protected by solicitor-client privilege.

After learning that she had complained to the Office, the company reviewed the material that had been withheld and determined that some documents should have been disclosed to her. These were then released. The company, however, also indicated that, in addition to the solicitor-client privilege exemption, it would be applying another exemption in order to withhold certain documents that it claimed had been generated in the course of a formal dispute resolution process.

The complainant had filed a grievance regarding short-term disability benefits. A few months later, she also filed a complaint with the provincial college of physicians against the medical director of her employer’s health unit. According to the college’s web site, 97 per cent of the complaints it receives are resolved by means other than a formal investigation and disciplinary action. It thus appeared that the mandate of the investigative arm of the college was, at least in part, to resolve the complaints that it receives.

The employer had withheld 30 pages of documentation. The information in question related to these processes or fell under solicitor-client privilege.

Findings

Issued March 27, 2006

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. Paragraph 9(3)(a) states that an organization is not required to give access to personal information if the information is protected by solicitor-client privilege. Paragraph 9(3)(d) indicates that an organization is not required to give access to personal information if the information was generated in the course of a formal dispute resolution process.

In making her determinations, the Assistant Privacy Commissioner deliberated as follows:

• In keeping with previous deliberations on the matter, the Assistant Commissioner determined that the grievance process is a formal dispute resolution process.
• After reviewing the mandate of the college’s investigative branch, she was also satisfied that since its objective is, at least in part, to resolve the complaints that it receives, its process was also a type of dispute resolution.
• As the information that was withheld from the complainant was generated after these processes had begun and was related to them, the Assistant Commissioner determined that the employer could correctly rely on paragraph 9(3)(d) to withhold this information.
• With respect to the information withheld under paragraph 9(3)(a), the Assistant Commissioner reviewed this information and agreed that the company appropriately applied this provision.
• During the investigation, the company had provided the complainant with additional personal information that it had previously withheld in error. In light of this, and the fact that the exemptions cited by the company had been correctly applied, the Assistant Commissioner determined that the complainant had been provided with access to the personal information to which she was entitled, in keeping with Principle 4.9.

The Assistant Commissioner therefore concluded that the complaint was resolved.