By Mark Squibb \ May 12, 2023
The Office of the Information and Privacy Commissioner has recommended the City of Mount Pearl continue to withhold the entire workplace investigation report into the former Chief Administrative Officer Steve Kent.
In October 2019, the City launched an investigation into workplace complaints alleging disrespectful and inappropriate behavior by Kent, who was placed on administrative leave. Kent resigned his position in 2020 after council gave notice of a motion for his dismissal.
The report was issued to the City on November 1, 2022, and the City subsequently provided a summary of the investigator’s findings, but not a copy of the report itself, to those who had made allegations against Kent.
Less than a month later, a staff member (unidentified in the Privacy report, except that they were one of the people who had made allegations against Kent) submitted an access request for a complete copy of the investigator’s report. The City refused the request, withholding the entire report on the basis that disclosure of the report was harmful to personal privacy.
The worker then filed a formal complaint with the Privacy Office.
In withholding the report in its entirety, the City argued “there are two separate complaints by two different complainants, and that the information provided in relation to one complaint is not relevant to the other complaint,” and that “information relating to the other workplace complainant must be withheld.”
The complainant meanwhile argued that as he is one of the workplace complainants and, therefore, a party to the workplace investigation that resulted in the report, he is legislatively entitled to receive a copy of the report. He argued further that the report deals with behaviour of employees during work hours in the workplace, and that in such a scenario there ought not be the same expectation of privacy.
Furthermore, as per the Privacy Office report, the complaint argued that “many people who spoke to the investigator will feel more threatened and violated should the report not be released, since many of the allegations involved perceived cover-ups to protect people in power, and while substantial redaction or full withholding of information might protect privacy, it would do harm by feeding suspicion, warranted or not.”
Citing case files of similar incidents involving records held by public bodies, Commissioner Michael Harvey agreed with the City’s decision to withhold the entire record from the Complainant.
Harvey did allow, however, that interpretations of Section 33, which deals with information from a workplace investigation and mandated disclosure of the report, and the restrictions of disclosure harmful to personal privacy mandated in Section 40, are often at odds with one another.
“It is absurd and troubling that the consistent application of an interpretation of the statute should lead to such inconsistent results,” reads his report. “This case illustrates the paradoxical situation in which we find ourselves at this moment. Clearly, it was the intent of the legislature in 2012 to create a mandatory right of access for the parties to a workplace investigation but a mandatory exception for everyone else. But, following the decisions referenced here, section 33 has proven to operate only partially or, as in this instance, not at all. The intended right of access within section 33 has been entirely overridden by the privacy provisions, because the Act does not provide a guide on how to resolve the interplay between sections 33 and 40, beyond the generic balancing provision within section 40(5) that applies to all forms of personal information.”
He added the “present case will be particularly disheartening to the workplace complainant who, at the time that he embarked on the process of making the complaint, felt assured that he would have the right to obtain the entire results of the investigation under the then-accepted interpretation of section 33 of the Act.”
Given the nature of the investigation, it is not surprising this is not the first time it’s been placed before the Privacy Office.
In a report released on July 31, 2020, the Office found the privacy of the workplace complainants had been breached when the City disclosed their letters of complaint to the CAO outside of an access to information request. The Office recommended that the City acknowledge the breach and apologize.
Kent requested access to copies of the complaints, the investigator’s interview notes, and other information during the course of the workplace investigation, which ran from October 2019 to November 2022.
In a decision dated August 25, 2020, the Privacy Commissioner concluded that although the investigation had not yet been completed, the CAO was entitled, under the provisions of section 33 of the Act, to all relevant information gathered for the purpose of the investigation. The Office recommended that the City obtain the records, including the investigator’s notes, and hand them over to the former CAO, which they did in May, 2021.
