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
By Kimberly Bungay On April 1, 2023, the Nova Scotia government will proclaim into force Bill 226, which amends the Companies Act (the “Act”) to require companies formed under the Act to create and maintain…
Read MoreBy Chad Sullivan and Kathleen Starke Background A recent decision, Vail v. Oromocto (Town), 2022 CanLII 129486, involved several grievances including an unjust dismissal claim by a firefighter as well as a grievance filed by…
Read MoreBy Stuart Wallace and Kim Walsh On January 1, 2022, the Underused Housing Tax Act (the Act) took effect. The Underused Housing Tax (the UHT) is an annual 1% tax on the value of vacant or…
Read MoreBy: David F. Slipp and Levi Parsche In May 2022, Bill 96 was adopted by Quebec’s National Assembly, significantly amending the Charter of the French Language (the “Charter“). The amendments create new requirements for using…
Read MoreBy Dave Randell, G. John Samms, and Stuart Wallace With the deadline for bids on crown lands available for wind energy projects extended to noon on March 23rd, the latest development in our Winds of…
Read MoreBy Kevin Landry and Colton Smith The Retail Payment Activities Regulations have been released in the Canada Gazette Part 1 for comment. Interested persons may make representations concerning the proposed regulations for a period of 45…
Read MoreBy Andrew Burke, Colleen Keyes, Gavin Stuttard and David Slipp With proxy season once again approaching, many public companies are in the midst of preparing their annual disclosure documents and shareholder materials for their annual…
Read MoreBy Brittany Trafford and Sean Corscadden In response to the nationwide labour shortage, the Federal government is allowing select family members of foreign workers to apply for open work permits. This temporary policy came into…
Read MoreMark Tector and Ben Currie Effective January 1, 2023, amendments to Ontario’s Employment Standards Act, 2000 (“ESA”) took effect, excluding “business consultants” and “information technology consultants” from the application of the ESA. This is a…
Read MoreBy Perlene Morrison, K.C. and Curtis Doyle Once again, the time has come to review the year that was and to chart the course for the year ahead. For municipalities and planning professionals in Prince…
Read More