A Release Fails to Persuade Canada’s Privacy Commissioner to Discontinue Investigation

In case you missed it, the Office of the Privacy Commissioner of Canada (OPC) posted Report of Findings #2013-004 (dated July 18, 2013) on November 4, 2013  relating to an access inquiry by a former employee of a bank under the Personal Information Protection and Electronic Documents Act. The decision is interesting for two issues — the way the OPC approached a release that had been given by the employee and they way the bank and the OPC resolved the tensions in balancing the interests of different individuals in respect of the same information. The second issue will be the subject of a subsequent post. In this post, I comment on the OPC’s refusal to discontinue the investigation when the bank raised the issue of the release given by the complainant.

The Employment Dispute

The complainant had been employed as a manager at a bank. During his employment, the complainant was subject to a performance review by colleagues. When his employment ended (the report indicates the requester resigned), the complainant signed settlement documentation that, in the words of the OPC decision, “confirmed that he had the opportunity to seek legal advice and had agreed not to make any claim, or institute any complaint against the bank under ‘any federal … legislation, including those pertaining to…privacy regulations’.”

The Access Request

After leaving his employment, the ex-manager sought access to his personal information, which included documents relating to a review of the ex-manager and other documents relating to his employment. The ex-manager was unsatisfied with the bank’s disclosure and made a complaint to the Office of the Privacy Commissioner.

Bank Seeks Discontinuance of Investigation

From the Report of Findings, it appears that the bank did not initially rely on the release in its response to the complaint and only raised it once the OPC prepared a preliminary report. The banks sought to have the OPC discontinue the complaint, relying on subsection 12.2(1)(b) of PIPEDA. Subsection 12.2(1)(b) of PIPEDA provides the OPC with discretion to discontinue an investigation if “the complaint is trivial, frivolous or vexatious or is made in bad faith”.

OPC Refuses

It is unclear why the bank did not rely on the release initially when the complaint was brought. The decision may have been tactical or there may have been an oversight. Either way, the OPC refused to discontinue the investigation. The OPC rejected the bank’s position. The OPC concluded that the release was too narrow. The release covered matters related “to the hiring of, the employment by, and the termination of the Employee’s employment by the Employer”. The OPC held that the claims in issue were related to the bank’s response to his access request. The complaint was, of course, in respect of a request to access documents relating to the employment by and the termination of the ex-manager. However, this was not sufficient to bring the complaint to the OPC within the scope of the release.

In addition, the OPC concluded that the bank raised the argument at too late a stage in the investigation. The bank also failed to raise the release as a potential obstacle for the ex-manager when it informed the ex-manager that he could complaint to the OPC regarding the bank’s handling of the access request.

Time to Revise Releases

Going forward, litigators should ensure that they have a broad release and covenant not to bring complaints before the OPC and must raise that release early if they wish to rely on the release as a basis to request the OPC discontinue complaints.