Court upheld municipality’s refusal to disclose investigation report
By Sheila Mecking and Sarah Dever Letson
A recent decision out of the Court of King’s Bench of New Brunswick,[1] upheld the Municipality of Tantramar’s decision to withhold a Workplace Assessment Report under section 20(1) of the Right to Information and Protection of Privacy Act (“RTIPPA”).
What is the exception under section 20(1) of RTIPPA?
One of the purposes of the RTIPPA is to provide access to information, but that is not without limitations. Section 20(1) is a mandatory exception that requires a public body to refuse to disclose information that would reveal the substance of records relating to a personnel or harassment investigation, including those records made by an investigator retained to provide advice or recommendations in the context of such investigation.
Without the protection from disclosure provided by this exception, participants may be less inclined to participate honestly in the investigative process. The section 20(1) exception allows investigators to conduct their work thoroughly, while instilling confidence in all participants that their information and disclosures will remain private and confidential. Investigations are sensitive matters that require confidentiality in order to maintain their integrity and be effective in achieving their purpose.
Phinney v Municipality of Tantramar
In this case, a Town Councillor filed an application seeking an order under the RTIPPA for access to a copy of a Workplace Assessment Report prepared following an assessment of alleged personnel issues in the Sackville Fire Department.
Tantramar declined the request. The requested record was a report completed by an investigator retained to provide advice and draw conclusions in relation to a personnel investigation. Tantramar’s position was that they were prevented from disclosing this record under s. 20(1) of the RTIPPA.
Councillor Phinney did not agree with Tantramar’s refusal to disclose the report and sought review of this decision in the Court of King’s Bench. The Court upheld Tantramar’s decision, finding that Tantramar was well within its right to deny Councillor Phinney’s request. The Court stated that the disclosure of the requested report would undermine the purpose of section 20(1) and have a chilling effect on personnel and harassment investigations.
How this may affect you
As a public body, under the RTIPPA, you may be required to disclose certain information upon receipt of an access to information request; however, there are many exceptions contained in the Act that may limit disclosure. Before any information is disclosed, you should consult with our privacy experts to ensure you are complying with all relevant legislation.
This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour & Employment Group.
Click here to subscribe to Stewart McKelvey Thought Leadership.
[1] Phinney v Municipality of Tantramar, 2024 NBKB 62.
Archive
Brian Tabor, QC and Eyoab Begashaw On April 8, 2022, the Nova Scotia Department of Finance and Treasury Board (Provincial Tax Policy and Administration Division) released the Provincial Non-Resident Deed Transfer Tax Guidelines (“Guidelines”) with…
Read MoreDante Manna and Hannah Brison Background The Office of the Superintendent of Financial Institutions (“OSFI”) is seeking feedback from stakeholders on its March 2022 Consultation Paper (“Consultation Paper”), which introduces proposed pension investment risk management…
Read MoreJulie Morris COVID-19 has caused many employers to be “caught between a rock and a hard place” – particularly when it comes to managing employee vaccination and attendance at work. Arbitrator Augustus Richardson used this…
Read MoreJoe Thorne How much does the rule of law cost? That question may seem crude, but it is the practical reality of our constitutional system. There are three branches of government: the judiciary, who interpret…
Read MoreJoe Thorne and Sarah Hogan Insurance professionals likely breathed a sigh of relief as the Court of Appeal of Newfoundland and Labrador released its recent decision, Balsom v. Rideout.¹ The Court of Appeal affirmed the…
Read MoreBrian Tabor, QC, Nico Jones and Hannah Brison Upon termination of the Renoviction Ban (March 20, 2022), new rules regarding renovictions came into effect. In summary, these rules require: The landlord to make an application…
Read MoreBrian Tabor, QC and Eyoab Begashaw Effective April 1, 2022, the Province of Nova Scotia announced that it will be implementing new property taxes impacting non-resident property owners. As a part of the 2022-2023 provincial…
Read MoreIn a recent webinar, a panel of our experienced labour and employment lawyers discussed how federally regulated workplaces might address section 240 of the Canada Labour Code. This addresses how to navigate the employment termination…
Read MoreSarah Byrne and Tauna Staniland, QC On November 16, 2021, the Government of Newfoundland and Labrador proclaimed into force Bill 24, which amends the Corporations Act, RSNL 1990, c C-36 (the “Act”). The amendments remove the…
Read MoreKevin Landry and Nikolas Shymko Health Canada has recently proposed a number of amendments to the Cannabis Regulations and other regulations concerning cannabis research and testing, and cannabis beverages. Until April 25, 2022, Health Canada…
Read More