The Municipal Freedom of Information and Protection of Privacy Act and Workplace Investigations

As employers and public institutions, municipalities (and municipal institutions) face unique challenges. On the one hand, as employers, municipalities must navigate the same issues that all workplaces face, such as harassment complaints and ensuing workplace investigations. They are required to provide their employees with a safe work environment and comply with all applicable employment legislation. On the other, as public bodies, municipalities have accountabilities beyond that of ordinary private employers. Complying with the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”), is one such challenge, particularly in the context of workplace investigations.

MFIPPA was enacted in 1989 to give the public a right to access to information held by municipalities and created broad disclosure of information obligations for municipalities and municipal institutions. MFIPPA is founded on the principle that information should be available to the public but with necessary exemptions to protect personal privacy, as well as matters central to municipal operation. Accordingly, MFIPPA deals with competing interests of openness and privacy. How then are municipalities to respond to MFIPPA requests for documents related to workplace investigations?

Many of these documents are likely to be excluded from MFIPPA requests. Section 52(3)3 of MFIPPA states that the Act does not apply to “records collected, prepared, maintained or used by or on behalf of an institution in relation to […] meetings, consultations, discussions or communications about labour relations or employment related matters in which the institution has an interest.” The purpose of the provision is to “protect the interests of institutions by removing public rights of access to certain records relating to their relations with their own workforce.”

“Employment-related matters” refers to workplace and human resources issues arising from the relationship between an employer and employees that do not arise out of a collective bargaining relationship (“labour relations” covers the collective bargaining relationship between an institution and its employees). While “in which the institution has an interest” refers to matters involving the institution’s own employees and includes an employer’s interest in the investigation of complaints of harassment and discrimination made against its employees.

In Corporation of the Municipality of Temagami, the Information and Privacy Commissioner of Ontario (the “IPC”) ruled that an investigation report concerning a harassment complaint against a municipal employee was excluded by s.52(3)3. The report was prepared on the municipality’s behalf in relation to meetings and discussions about an employment-related matter in which it had an interest. Similarly, in Toronto Transit Commission (Re)5, the IPC ruled that s.52(3)3 excluded access to the investigation file of the municipal institution’s internal investigator, including the investigator’s notes, during a review of a harassment and discrimination complaint.

However, not all documents in a workplace investigation are necessarily excluded. Notably, “records created as part of an institution’s day to day operations that later make their way into an investigation file of an employment related matter in which an institution has an interest, are not excluded from [MFIPPA]”. Accordingly, in Dufferin-Peel Catholic District School Board, the IPC found that security footage of an altercation between employees that led to a workplace investigation was not excluded by s.52(3)3. The IPC noted that, though the footage was central to the investigation, it was not created for a labour relations or employment-related purpose as “it would have existed whether or not the investigation occurred”.

Furthermore, in Ontario (Correctional Services) v. Goodis, the Divisional Court cautioned that that MFIPPA does not necessarily exclude “all records pertaining to employee conduct […] even if they are in files pertaining to civil litigation or complaints brought by a third party.” The Court distinguished between “employment related matters” and matters related to employee’s actions or inactions, such as those that might attract vicarious liability for the employer. The exclusion in s.52(3)3 is limited to matters in which the institution has an interest as an employer. Ultimately, a document-by-document assessment will be required to determine whether a record is “employment related”.