Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 70-1995
December 14, 1995
INQUIRY RE: A request for the release of all records relating to the
resignation of the Executive Director of the Nanaimo Regional General
Hospital
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Introduction
As Information and Privacy Commissioner, I conducted a written inquiry on
September 25, 1995 under section 56 of the Freedom of Information and
Protection of Privacy Act (the Act). This inquiry arose out of a request
for review of a decision of the Nanaimo Regional General Hospital (the
Hospital) to withhold records relating to the resignation of its Executive
Director.
Michael Munro, a reporter for the Nanaimo Bulletin, made his original
request to the Community Relations Officer at the Nanaimo Regional General
Hospital. He requested "all transcripts, memos, faxes, letters and any and all
other information regarding the resignation of the [Executive Director]
including his letter of resignation. That includes any information regarding
sexual harassment allegations or complaints made to the Employers Relations
Department, RCMP, or whomever." He did not seek the name of the complainant.
The Hospital provided the applicant with the Executive Director's letter of
resignation and confirmation that he "received six months salary ($60,000), one
half of his accumulated sick leave ($19,385) and benefits continuation for a
six month period." The Hospital confirmed that this formula for severance had
been in place since the Executive Director joined the Hospital in 1987.
On March 17, 1995 the applicant and his employer requested that this Office
review the decision of the Nanaimo Regional General Hospital. The inquiry was
adjourned a number of times with the consent of the parties and was eventually
convened on September 25, 1995.
2. The records in dispute
Through the mediation process, the applicant received a number of documents.
The remaining records in dispute are listed below. I am relying on the
numbering and document descriptions in the initial submission of the public
body.
Withheld in their entirety
1. A letter dated December 12, 1994 to the Chairman, Board of Trustees of
Nanaimo Regional General Hospital.
4. An Investigative Report published February 2, 1995, pursuant to a policy of
Nanaimo Regional General Hospital.
Severed for eventual release
10. Letter dated February 5, 1995, from the Executive Director to the Chairman,
Board of Trustees of Nanaimo Regional General Hospital.
11. Letter dated February 6, 1995, from the Executive Director to a third
party.
13. Minutes of an in camera meeting of the Executive Committee of the
Board of Trustees of Nanaimo Regional General Hospital, held February 8,
1995.
16. Minutes of the in camera meeting of the Executive Committee of the
Board of Trustees of Nanaimo Regional General Hospital, held February 24,
1995.
17. Letter dated February 27, 1995, from the Chairman, Board of Trustees, to
the Executive Director requesting his presence at a meeting to be held on March
3, 1995 with the Executive Committee of the Board.
19. Notes prepared by the Chairman, Board of Trustees, based on legal advice
for the in camera meeting of the Board scheduled for March 9, 1995.
20. Motions passed at the special in camera meeting of the Board of
Nanaimo Regional General Hospital on March 9, 1995.
21. Letter dated March 9, 1995 from the Chairman, Board of Trustees, to the
Executive Director.
3. Issues under review at the inquiry
The main issues in this inquiry concern the applicability of sections 13, 14,
and 22 of the Act to the records in dispute. The relevant portions of these
sections follow.
Policy advice or recommendations
13(1) The head of a public body may refuse to disclose to an applicant
information that would reveal advice or recommendations developed by or for a
public body or a minister.
Legal advice
14 The head of a public body may refuse to disclose to an applicant information
that is subject to solicitor client privilege.
Disclosure harmful to personal privacy
(2) In determining under subsection (1) or (3) whether a disclosure of personal
information constitutes an unreasonable invasion of a third party's personal
privacy, the head of a public body must consider all the relevant
circumstances, including
...
4. The applicant's case
The applicant is of the view that it is in the public interest to know the
facts respecting the resignation of the Executive Director, his contract, his
severance remuneration, and allegations of sexual harassment made against him.
(Submission of the Applicant, p. 2)
The applicant argues that the records in dispute should be disclosed on the
basis of sections 22(4)(e) and (j) of the Act, if they concern employment
contracts, correspondence about severance payments, allegations of sexual
harassment, "if they relate to his resignation and severance remuneration, or,
if they do not, simply because they outweigh the personal privacy interest of
one who is a public official." He relies in this connection on my Order No. 46-1995, July 5, 1995, p. 4
In particular, our client [the applicant] submits that, if the severance
remuneration was paid to [the Executive Director] in exchange for his
resignation, in order to keep the issue quiet and not embarrass anyone, that
should be disclosed, as well. Our client points out that there have been many
layoffs at the Nanaimo Regional General Hospital in the past three weeks; if
jobs cannot be spared due to mismanagement of public monies (i.e. paying
unfounded and improvident severance amounts), then the public interest in
knowing that information is very strong. (Submission of the Applicant, pp. 7,
8)
The applicant has emphasized that he does not seek disclosure of the names of
the complainants.
The applicant further involved section 25 of the Act to force the Hospital to
disclose the information requested, because of the public's right to know how
public money is being spent in the face of allegations of mismanagement, for
example, "in order to protect the reputation of one who is the subject of
sexual harassment allegations." (Submission of the Applicant, pp. 9, 10)
5. The Nanaimo Regional General Hospital's case
The Hospital made a series of submissions covering a narrowing number
of records in dispute. I am only addressing the arguments pertaining to the
remaining records. I will discuss specific arguments about each record as I
review them below on an individual basis.
6. The third parties' cases
The former Executive Director of the Hospital objects to the release of
the information requested by the applicant, because it would be an unreasonable
invasion of his personal privacy. He emphasizes "the confidential nature of
personnel files and matters relating to employee evaluations."
The complainant in this case objects to the disclosure of her name as an
invasion of her privacy and argues that such an action would stop other
individuals in similar circumstances from coming forward in order to stop
unwarranted behaviour.
7. Discussion
The applicant has gone to considerable lengths to berate the Hospital for
various alleged failures in complying with his access request, including an
initial failure to inform him which sections of the Act it was relying on to
prevent disclosure of certain information. (Submission of the Applicant, pp.
2-5) As I have said before, I am inclined to be tolerant of the good faith
efforts of public bodies, especially those recently covered under Tier 2 of the
Act, as they learn how to comply with a reasonably complicated new piece of
legislation in a period of budgetary restraint. See Order No. 55-1995,
September 20, 1995, pp. 4, 5. However, it is important that public bodies
provide applicants with a list of the exceptions applied, if any, when
responding to requests for records.
Reasonable Expectations of Confidentiality
On December 21, 1994 the Hospital distributed to all of its
employees its draft policies on harassment as "the official `interim policy.'"
Section 2.5.16 in particular states that:
Confidentiality of the names of the principals, the nature of the allegations,
the conduct and content of the investigation, the recommended outcome and final
action taken shall be strictly maintained on a "need to know" basis.
(Documentary Submissions of the Hospital, tab 7)
While I am prepared to interpret the intent of this statement as a promise of
confidentiality, it is highly desirable for the language of such a policy of
any public body to specify that such personal information will be treated as
"supplied in confidence" for purposes of compliance with section 22(2)(f) of
the Act and then indicate that the information, as noted above, will be
maintained on a need-to-know basis. I strongly recommend this policy statement
to all public bodies covered by the Act. I am pleased, in this connection,
with the language of the government's draft "Policy and Procedures on
Discrimination and Harassment in the Workplace," because it couples an
expectation of "strictest confidence" with an acknowledgment of subsequent
distribution of pertinent information on a "need-to-know" basis.
Detailed review of the records in dispute
My decision in inquiries like the present one depends in large
measure on my detailed review of the records in dispute. Concern for the
privacy interests of the individuals involved in this specific matter makes it
almost impossible for me to provide much descriptive information about the
nature of the issues involved.
I disagree with the applicant's submission that the records can be
characterized as concerning the third party's position, functions, or
remunerations as an employee of the Hospital within the meaning of
section 22(4)(e), or that disclosure would reveal details of a discretionary benefit of
a financial nature within the meaning of section 22(4)(j). Thus I have
concluded that section 22(4) does not apply to the records in dispute.
I have concluded that the Hospital appropriately refused to disclose all or
part of records 1, 4, 10, 13, 16, 17, 19, and 21 under section 22(3) and record
11 under section 22(1), since disclosure would, in my view, constitute an
unreasonable invasion of the third party's personal privacy. I have also
concluded that the Hospital was authorized to refuse to disclose parts of
records 13, 16, and 19 under sections 13 and 14, and record 20 under
section 13. My reasons follow.
Records 1 and 4: A complaint and the accompanying investigation report
The Hospital argues that these records should not be disclosed
on the basis of sections 22(2)(f) and (h) and 22(3)(b) and (d). The report,
which is strictly factual in nature and contains no recommendations (although
it includes findings), implements the personnel harassment policy of the
Hospital. The Hospital argues that it is in the public interest to encourage
justifiable complaints, and that release of any portion of these records "would
have a chilling and detrimental effect on potential future complaints."
(Submission of the Hospital, pp. 1, 2; In camera Submission of the
Hospital, August 4, 1995, pp. 4, 5). As noted above, Hospital policy provides
that such information will be used on a need-to-know basis.
Based on my review of the records, I find that records 1 and 4 were
appropriately withheld in their entirety under section 22(3)(b) and (d) of the
Act. I agree with the Hospital's application of the factors contained in
section 22(2)(f) and (h).
Records 10 and 11: Two letters written by the Executive
Director
Based on a review of these records, I find that the Hospital appropriately
withheld the severed portions of record 11 under sections 22(2)(h) of the Act.
With respect to record 10, I find that the Hospital appropriately withheld
certain parts of this record under sections 22(2)(f), (h), 22(3)(b) and (d) of
the Act.
The Executive Director has agreed to the release of these two records in their
severed form.
Records 13 and 16: Minutes of in camera meetings of the Executive
Committee
The Hospital has proposed to release portions of these records in severed form
on the basis of the protections offered by sections 13 and 14 of the Act
(policy and legal advice developed strictly for the Board). It also now
relies on sections 22(2)(f), (2)(h), and 22(3) of the Act.
On the basis of my review of these records, I find that the Hospital
appropriately severed these two records under sections 13, 14,22(2)(h), and
23(3)(b) and (d) of the Act.
Record 17: A letter to the Executive Director
The Hospital relied on sections 22(2)(f), 22(2)(h), and 22(3)(g)
of the Act to sever this record.
The Executive Director has agreed to the release of this record in its severed
form.
On the basis of my review of this record, I find that the Hospital severed it
appropriately under sections 22(2)(f), 22(2)(h), and 22(3)(g) of the Act.
Record 19: Notes prepared on legal advice for the Chairman, Board of
Trustees
The Hospital has relied on sections 13, 14, 22(2)(f), 22(2)(h), and 23(3)(g)
of the Act for its severances to this record of legal and policy advice.
Based on my review of this record, I find that the Hospital severed the record
appropriately under sections 13, 14, 22(2)(f), 22(2)(h), and 23(3)(g).
Record 20: Motions passed at special in camera meeting of the Board
The Hospital states that it has relied on sections 13, 22(2)(f),
22(2)(h), and 23(3)(d) for its severance of this record.
The Executive Director has agreed to the release of this record in its severed
form.
Based on my review of this record, I agree that the Hospital acted
appropriately in severing the record on the basis of section 13 of the Act.
Record 21: Letter to the Executive Director
The Hospital states that it has relied on sections 22(2)(f), 22(2)(h), and
23(3)(d) for its severance of this record.
The Executive Director has agreed to the release of this record in its severed
form.
Based on my review of this record, I agree that the Hospital acted
appropriately in severing the record on the basis of sections 22(2)(h) and
23(3)(d) of the Act.
A set of rules for disclosure of information to the public in harassment
cases
It seems to me that there are certain bright lines that can be
drawn with respect to the disclosure of sexual or personal harassment
information to the general public by public bodies covered by the Act. I think
that the fundamental concern is to protect the integrity of the process that a
complainant sets in motion. A complainant is entitled under section 22 of the
Act to confidentiality for both his or her name and the substance of the
complaint. The substance of the subsequent investigative report should also be
protected from disclosure, as well as the substance of meetings held by those
in authority to make a decision on what to do about a complaint that is either
substantiated or unsubstantiated. Generally, sections 13, 14, and 22 are
relevant in this connection. I think that the written policies of any public
body should state that this kind of information is collected in confidence for
purposes of section 22(2)(f) and will not be disclosed to third parties in
particular. I am not concerned in this inquiry with rights of access to such
records on the part of either the complainant or the person complained against.
Nor am I addressing the handling of complaints with respect to complaints that
are found to be frivolous, vexatious, or, indeed, malicious.
With respect to the application section 22(2)(h) of the Act, I am also of the
view that public bodies should not disclose personal information that may
unfairly damage the reputation of any person(s) referred to in the record
requested by an applicant. The goal of the investigative process is to secure
justice for the complainant, the alleged harasser, and those asked to provide
evidence, and then to facilitate the reintegration of the "offender" into the
work force as a productive member of society. The process is highly invasive
for any parties involved in such a matter without subjecting them to invidious
attention in public that will not serve the purposes of such procedures.
Under sections 13 and 14 of the Act, I am persuaded that specific policy
advice and legal opinions and advice received by a public body in connection
with a harassment episode need not be disclosed. It is self-evident that
decisions in such matters are ultimately made by such lay groups as Boards of
Directors, who require, and are entitled to, professional advice on a
confidential basis so that they can best protect the broad public interest and
the interests of the persons involved, including complainants, offenders, and
witnesses.
The Hospital's press release of March 14, 1995
On the above date, the Hospital announced the resignation of its
Executive Director "for personal reasons." The public was given no further
information about the reasons for the departure, except for the statement that
the Executive Director "will be missed by all." This particular document does
raise issues of how much the public needs to be told about this kind of
situation. The press release made no mention of severance payments of any
sort.
The Hospital feels that it cannot explain the apparent incongruity between
reasons for the resignation and the payment of severance pay without disclosing
personal information, policy, and legal advice. (In camera Submission,
August 4, 1995, p. 4) I accept the Hospital's resolution of this dilemma in
the present inquiry and am of the view that the additional information that
will now be disclosed to the applicant will go some way to satisfy legitimate
public interest.
It seems to be that in cases of harassment the balancing of competing
interests between openness and accountability and the protection of personal
privacy should be struck on the privacy side of the equation.
8.
Order
I find that the head of the Nanaimo Regional General Hospital is required to
refuse access to all of records 1 and 4 and part of records 10, 11, 13, 16, 17,
19, and 21 under section 22 of the Act. Under section 58(2)(c), I require the
head of the Nanaimo Regional General Hospital to refuse access to all of
records 1 and 4 and parts of records 10, 11, 13, 16, 17, 19, and 21 as
described in these reasons.
I also find that the head of the Nanaimo Regional General Hospital is
authorized to refuse access to parts of records 13, 16, and 19 under
sections 13 and 14 of the Act and parts of record 20 under section 13. Under
section 58(2)(b), I confirm the decision of the head of the Nanaimo Regional General
Hospital to disclose records 13, 16, 19, and 20 to the applicant in their
severed form.
December 14, 1995
David H. Flaherty
Commissioner