Can personal notes made during an interview with a student/staff member be withheld from a FOIP request?
No, any information about the student or staff member is that person's personal information and, therefore, accessible under the Act. [Section 1(1)(n)(viii) and 6(1)] This would not apply if the notes contained the interviewed person's opinions about a third party. [Section 1(1)(n)(ix)] This right to access is not unencumbered and there may be occasions when information could be withheld if it would be harmful to someone's health or safety, harmful to law enforcement, or could be construed as advice to another official in the Institute. Because this could be a complex decision, the advice of the FOIP Coordinator should always be sought.
When applying for a posted position, is the information contained in the application submitted to Human Resources affected by the Act?
Yes, the application is being submitted in response to a request for applications. A decision will be made on whether to short-list or interview the applicant based on the information contained in the application. When personal information is used to make a decision about an individual, the information must be retained for a period of at least one year to allow the individual an opportunity to review the record and request corrections to it. [Section 35(b)]
Performance reviews are carried out annually with accompanying documentation. Are these documents personal information and subject to access? Can they be shared with the President, Human Resources, etc?
Yes. Performance reviews are personal information as they form a part of an individual's employment history. [Section 1(1)(n)(vii)] Disclosure, in response to a FOIP request, of information within the review, including accompanying documentation, would be an unreasonable invasion of privacy as it relates to employment history and is a personnel evaluation conducted in a formal manner. Disclosure would be permissible if the employee or department of the Institute had a need to know the information to carry out their job or to manage the human resources of the Institute. [Section 40(1)(h] It is unlikely that information would be shared with the President unless he needed that information to make a decision about the individual.
Can the Institute confirm, in response to a telephone inquiry, whether an individual is employed with the Institute and their specific salary?
Section 40 lists the only circumstances under which information may be disclosed about an individual. To disclose personal information means to release give or transmit that information by any means, including verbally, to another public body or anyone other than the person concerned. In the absence of a formal request, employee consent would be required unless the requester can show that the request meets one of the specific circumstances in Section 40 of the Act. If a formal request is made, the employment status of the person can be disclosed, but not a specific salary. The Institute may, by policy and by seeking employee consent, make release of certain employee information routine unless there are health and safety reasons to preclude this.
Can the personal information of salaried or contracted employees be disclosed to Canada Customs and Revenue Agency for the purpose of tax evasion investigations?
Yes. Section 40(1)(e) and (f) allows for disclosure to comply with another Act, and Section 40(1)(q) allows for disclosure for law enforcement purposes. In either case, the official from Canada Customs and Revenue Agency would have to provide proof of identity and the specific authority under which the information is being requested.
Can an employee's own personal information be withheld from a FOIP request in cases where the employee has made a claim against the Institute?
Although individuals generally have a right to information about themselves, in limited circumstances this may be withheld. The Institute may refuse to release information that would have an adverse impact on an insurance claim or a suit against the Institute. Section 25(1)(c) allows the Institute to refuse to disclose information that could reasonably be expected to harm its economic interests and specifically, result in financial loss to the Institute or interfere with negotiations to settle the case. Note that the Institute must be able to demonstrate the likelihood of harm to its interests..
If a severance document indicates that the parties will not release information, and the Institute is forced to do so under the FOIP Act, can the previous employee sue?
No. Section 90 protects the Institute or any person acting for the Institute from legal proceedings for damages resulting from any action taken in good faith under the Act. An agreement by the parties to not discuss the agreement in public is not the same as a confidentiality agreement. Whether or not the Institute can be forced to disclose severance agreements is not yet clear and will likely depend on the degree to which such an agreement is discretionary on the part of the signatories.
Can an Institute disclose personal information about faculty members and non-academic staff to their respective employee associations?
Section 40(1)(e) authorizes the disclosure of certain information in order to comply with the terms of a collective agreement. The terms and conditions of those agreements would govern what and how much personal information must be disclosed. The collective agreements should also be reviewed (and amended through negotiation, if necessary) to ensure that the personal information disclosed is kept secure and confidential and only used for the purposes stated in the agreement. Section 40(1)(o) allows for additional disclosure to the representative of a bargaining agent who has been authorized in writing by an employee to make an inquiry about the employee's own information.
Can personal information about an employee be disclosed to Human Resources Development Canada on request?
Section 40(1)(e) and (f) allows for disclosure to comply with another Act, such as the Employment Insurance Act. That Act authorizes the collection of personal information for certain purposes (e.g. for administering the Act or for investigating fraud). Discretion should be exercised to ensure that only relevant personal information is disclosed. The requester should be asked to supply proof of identity and authority for requesting the information. It would be very rare to disclose an entire file in such circumstances.
Can personal information be collected about an employee in an internal investigation without their permission?
Yes, in certain circumstances. Section 34(1)(g) allows for indirect collection for the purpose of law enforcement, Section 34(1)(n) for management and administration of personnel and Section 34(3) is an override section that applies if the head of the public body believes compliance with collection rules would result in collection of inaccurate information. The definition of "law enforcement" [Section 1(h)] includes a security or administrative investigation that leads or could lead to a penalty or sanction or proceedings that lead or could lead to a penalty or sanction. In both cases, the penalty or sanction could be imposed by the public body conducting the investigation or by another body to which the results of the investigation are referred.
What can be withheld regarding internal investigation of staff misconduct? Who has a right of access to this information?
Generally, information about such an investigation consists mainly of personal information about the parties involved and would be available to the individuals themselves. However, an individual's right to access their own information must be balanced against the possibility of harm to another person's health and safety and harm to investigative techniques. Section 20(1) provides for a discretionary exception to disclosure where the disclosure could harm a law enforcement matter; harm the effectiveness of investigative techniques; reveal the identity of a confidential information source; interfere with or harm an ongoing or unsolved law enforcement investigation; or deprive a person of the right to a fair trial or impartial adjudication. All records need to be carefully examined against the provisions of Section 17. Section 17(4)(b) presumes a disclosure of personal information to be an unreasonable invasion of personal privacy if the personal information is an identifiable part of a law enforcement record, except where the disclosure is necessary to dispose of the matter or continue the investigation.
How long must application forms for unsuccessful candidates or unsolicited application forms be kept?
If the Institute uses the application forms to make a decision about the individual, it must be retained for at least one year after the decision is made. If the form was used to make a decision about hiring, or not hiring, then it must be retained. Applications or resumes that come from unsolicited sources would only be retained if they were considered in the process of a personnel search. The Institute's transitory record policy would apply.
How should the Institute respond to a request for information on an employee’s wage loss as a result of a motor vehicle accident from (1) a lawyer, (2) an insurance company?
If the lawyer indicates in writing that he or she is acting on behalf of the employee, the Institute may disclose information to the lawyer in accordance with Section 16(4)(a). This is treated as a formal request under the Act. A lawyer acting on behalf of the client is seemed to be the client, and no separate written permission is required from the client. However, the Institute can ask for proof of the solicitor-client relationship either in the form of a letter from the client indicating that the lawyer is acting on his or her behalf, on a copy of the undertaking with the client. This is not a letter of consent; it is a letter indicating the lawyer’s right to act for them. If the request were from another professional such as an accountant, written consent would be required. Personal information can only be released to the insurance company with the consent of the employee, identifying what information is to be released, to whom and the use to be made of it. [Section 38(1) and FOIP Regulation Section 6]
Will a request for a student’s or an employee’s own personal information always be a formal request under the Act?
Although a student or employee may submit a written request for his or her own personal information under the Act, the Institution may obtain the agreement of the applicant to treat the request as an informal one (outside the Act). However, requests for personal information cannot be categorized as routine release except in limited circumstances. This is because the records must be examined to ensure that they are relevant to the request and that personal information of other parties is severed if it would be an unreasonable invasion of their privacy.
Will internal memos that contain recommendations and refer to an individual by name be available to that individual in a FOIP request?
Generally, information about an individual is available to that individual, but this is not an unfettered right. Discretion exists to withhold information in a number of circumstances such as:
- when, in the opinion of a qualified professional, the information could reasonable be expected to result in harm to the applicant's health or safety. [Section 18(2)]
- when the information consists of a confidential evaluation of the applicant compiled solely to determine suitability for employment. This would not usually apply to memos written by another staff member. [Section 19]
- when the information consists of advice or recommendations related to the applicant (e.g. disciplinary recommendations). [Section 24(1)(a)]
- when the information is contained in plans relating to the management of personnel or the administration of the Institute that have not yet been implemented (e.g. Human Resource plans or downsizing options). [Section 24(1)(d)]
Will internal memos that contain recommendations and refer to an individual by name be available to that individual in a FOIP request?
Generally, information about an individual is available to that individual, but this is not an unfettered right. Discretion exists to withhold information in the following circumstances:
- when, in the opinion of a qualified professional, the information could reasonable be expected to result in harm to the applicant’s health or safety. [Section 17(2)]
- when the information consists of a confidential evaluation of the applicant compiled solely to determine suitability for employment. This would not usually apply to memos written by another staff member. [Section 18]
- when the information consists of advice or recommendations related to the applicant (e.g. disciplinary recommendations). [Section 23(1)(a)]
- when the information is contained in plans relating to the management of personnel or the administration of the Institute that have not yet been implemented (e.g. Human Resource plans or downsizing options). [Section 23(1)(d)]
For a variety or reasons, many staff members have access, via computer or hard copy, to student information. Can we assume the normal access is "consistent purpose"?
NO, the fact that access to student information is available does not condone unauthorized access to that information. Staff should only be accessing student information if they have a need to use that information as a part of their job responsibilities. "Consistent purpose: is defined in Section 41 of the Act as having a reasonable and direct connection to the original purpose for collection of the information and being necessary for operating a legally authorized program of the Institute.
Can the personal information (such as telephone number, timetable, address, etc.) of employees be disclosed to a third party?
Disclosure of the business address and business telephone number of a staff member is not considered an unreasonable invasion of privacy. The timetable of a staff member could be considered to be a part of that person's "employment responsibilities" and would thus also not be considered an unreasonable invasion of privacy. [Section 17(2)(e)] However, it would be prudent to consult with the staff member involved to ensure that such release would not reasonably be harmful to his or her health or safety. [Section 18(1)(a)]
Can the salary information of the Institute's employees be released in response to a FOIP request?
Not entirely. Information about an officer or employee's classification, salary range and discretionary benefits would have to be disclosed. This disclosure would not be seen as an unreasonable invasion of personal privacy (section 17(2)(e)). Specific salary information for senior officials of the Institute is disclosed to government as required information in their financial statements. The financial statements are then published in Volume 4 of the government's Public Accounts.
If the Institute receives a FOIP request for the severance package given to an employee, does the information have to be released?
- In Order 2001-020, the City of Calgary received a request for all information related to a buy-out for managers since 1999
- The Information and Privacy Commissioner upheld the City's decision to release standard clauses from the severance agreements, the individuals' job title or position, and the amount of severance paid. This information could be released in accordance with section 17(2)(e)
- The City withheld the individual's names and signatures (section 17(4)(g)(i)), and employee numbers, and termination and retirement dates as employment history (section 17 (4)(d))
Is an Institution required to disclose to Alberta Learning the actual salaries and benefits of its senior officers (for the purposes of Public Accounts reporting)?
Yes. Under a Treasury Board Directive under the Financial Administration Act, Institutions must disclose this information to Advanced Education and Career Development for reporting in Volume 4 of Public Accounts. Since the Treasury Board Directive in this case is considered to be an "enactment", Section 40(1)(e) authorizes the disclosure in order to comply with the Directive.
Are personal records of an employee that are located on Institution property accessible under the Act?
Generally, personal records of an employee are not covered by the Act. However, if the records of an employee relate to the operational functions of the Institute, then the records are the property of the Institute and are covered by the Act. If an employee's records are used in decision making or program activity, then they are considered to be Institute records and thus, subject to the Act.
Does an applicant in a FOIP request have the right to access confidential reviews about him/herself from peers concerning a tenure application?
Normally, an applicant can gain access to information about him/herself. However, in some cases, if the information was provided explicitly or implicitly in confidence by the third party, the Institute may refuse to release that information. (Section 19) If the applicant agrees to the public body approaching the third party, and the third party agrees to the release of the information to the applicant, the Institute would release it.
Can an instructor or a professor, in a FOIP request, gain access to a written evaluation of him/herself by a student?
Normally, since the instructor or professor is the subject of the evaluation, he/she would have access to the information. However, in some cases, if the evaluation was supplied explicitly or implicitly in confidence, the Institute may refuse to disclose the information. (Section 19) If all identifying information about the student evaluator can be severed, then the remaining information could be released.
Can an individual who has been accused of sexual harassment, in a FOIP request, access a case advisor's notes from an Office of Human Rights at an Institution?
Normally, records would not be available where an active investigation is under way (Section 20(1)(c)) or where disclosure could reasonably be expected to threaten anyone else's safety or mental or physical health, or would breach the provisions regarding privileged information, including solicitor-client privilege. (Section 27(1)(c))
What would the consequences be for an employee of the Institute who destroyed a record subject to a request with the intent to evade the request?
Destroying any record subject to the Act with the intent to evade a request for access is an offense and the individual is liable to a maximum fine of $10,000. (Section 92(2))
What are the consequences to the Institute if it does not comply with the FOIP legislation?
Apart from the embarrassment for a major public institution in refusing to comply with provincial government mandated legislation and any resulting adverse publicity, the Information and Privacy Commissioner has the right to order compliance. In addition, the Act allows for fines up to $10,000 for individuals who:
- wilfully collect, use or disclose personal information in violation of the privacy protection part of the Act,
- make a false statement to, or mislead the Commissioner, or his officers or any other person under the Act,
- obstruct the Commissioner or other person in the performance of the Commissioner’s or another person’s duties, powers or functions under the Act,
- fail to comply with a Commissioner’s order,
- alter, falsify or conceal any record, or direct another person to do so, with the intent to evade a FOIP request, or
- destroy records subject to the Act with the intent to evade a request for access to the records (Section 92(1))
The FOIP Coordinator's Office will assist in ensuring that the Institution’s collection, use and disclosure of information complies with the legislation.