Fired Nunavut government employee has right to notes related to dismissal, privacy commissioner says
Government had maintained investigator’s notes were not under its control
Nunavut Information and Privacy Commissioner Graham Steele says a doctor committed a “profound” intrusion of privacy when looking through a colleague’s medical records “numerous” times over a period of 18 months. (File photo)
A former Government of Nunavut employee should have received investigator’s notes related to a harassment complaint related to that employee’s termination from the Department of Health in 2019, says Nunavut’s information and privacy commissioner.
Commissioner Graham Steele was asked to review the territorial government’s decision not to release the notes, which were requested as part of one of nine information requests the employee made after they left the department.
Specifically, the request was for the investigation report into the harassment complaint that was submitted to the deputy minister of health, including all notes, reports, findings and “the preliminary notes made by the investigator.”
The employee made the requests shortly after their dismissal, according to the review.
The department provided the investigator’s final report to the applicant, but argued that the investigator’s notes were not actually under government control.
Nunavut’s Access to Information and Protection of Privacy Act is meant to apply to all records “in the custody or under the control of” a public body.
In his Feb. 8 decision, Steele determined those notes were in fact under the department’s control.
He acknowledged some confusion arose over how the request was initially handled. Although the applicant filed their nine access to information requests as one, the Health Department’s ATIP co-ordinator transferred the request for the investigator’s notes to the Department of Human Resources.
Human Resources then disclosed four pages of notes to the applicant, though they were not in fact notes prepared by the external investigator hired to look into the initial harassment complaint.
“In this case, if the GN had conducted its own internal investigation, using its own Human Resources staff, the investigator’s notes would have to be disclosed,” the commissioner wrote in his decision.
“The fact that the investigation function was contracted outside the GN should make no difference.”
Steele made three recommendations. He recommended that the Departments of Health or Human Resources obtain the notes from the external investigator and release them to the applicant.
He then recommended the Department of Human Resources stipulate in any future contract that an external investigator’s work remains the property of the GN and subject to disclosure under access to information legislation.
Finally, Steele recommended that both departments review his Feb. 8 decision and respond to its recommendations.
You can read the full decision here.
I wonder if the reason to use an outside contractor was so notes would be outside the reach of access to information requests? Makes you go hmmmmm.
Nope. The use of external investigators is a requirement under current Harassment and Violence Prevention legislation unless the Department has staff with the necessary expertise. None of the GN departments currently employ such staff.
Deputy Ministers Sheila Kolola and Ruby Brown dropping the ball for the 100th time no doubt. Seems pretty obvious to anyone that documents done by your contractor are in your control but here we are.