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Document
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I93-039P
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Institution/HIC
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MANAGEMENT BOARD SECRETARIAT
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Summary
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INTRODUCTION Background of the Complaint This investigation was initiated as a result of a complaint concerning Management Board Secretariat (MBS). The Ministry that employed the complainant had conducted an investigation of a harassment complaint made against the complainant by another Ministry employee (the aggrieved employee). The finding of this investigation was that the complainant had harassed the aggrieved employee. The complainant was not satisfied that the investigation had been conducted properly, and subsequently, a second investigation was conducted by an investigator from the MBS Workplace Discrimination and Harassment Prevention (WDHP) Branch. This investigation, which was conducted under a WDHP Directive (the Directive) dated March 1992, focused on the procedural aspects of the first investigation, and concluded that there had been some flaws in the procedures of the first investigation. Some months after the first harassment complaint was made, the aggrieved employee complained that the harassing behaviour was continuing, and another investigation was initiated by the Ministry. At approximately the same time, the complainant wrote to the Premier of Ontario, complaining about the first two investigations. Subsequently, a third investigation was conducted by WDHP extended staff -- an investigator from a different ministry. The subject of the third investigation was the aggrieved employee's complaint of continuing harassment. The complainant believed that during the course of the above investigations, MBS had breached the Freedom of Information and Protection of Privacy Act (the Act ) in the following ways: 1. The second and third harassment complaints and investigation report were disclosed to various individuals who should not have had access, according to the terms of the Directive; 2. MBS disclosed a letter from the third investigator to the complainant by leaving copies of it in open areas of the complainant's office building; 3. A letter from the third investigator to the complainant and correspondence to the Premier's office had not been retained by MBS; and 4. The information about the complainant that MBS had collected and used to write the second and third harassment investigation reports was inaccurate. Issues Arising from the Investigation The following issues were identified as arising from the investigation: (A) Did the records in question contain the complainant's "personal information", as defined in section 2(1) of the Act ? If yes, (B) Did MBS disclose the complainant's personal information in the second and third harassment complaints to various individuals in accordance with section 42 of the Act ? (C) Did MBS disclose the complainant's personal information in the second and third harassment investigation reports to various individuals in accordance with section 42 of the Act ? (D) Did MBS disclose the complainant's personal information in a letter from the third investigator to the complainant by leaving copies in open areas of the building? (E) Did MBS retain the complainant's personal information in a letter from the third investigator and in correspondence with the Premier's office, in accordance with section 40(1) of the Act ? (F) Did MBS take reasonable steps to ensure that the complainant's personal information was accurate and up to date, before using it to write the second and third harassment investigation reports, in accordance with section 40(2) of the Act ? RESULTS OF THE INVESTIGATION Issue A: Did the records in question contain the complainant's "personal information", as defined in section 2(1) of the Act ? Section 2(1) of the Act defines "personal information" as recorded information about an identifiable individual, including: (a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual, (b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved, (c) any identifying number, symbol or other particular assigned to the individual, (d) the address, telephone number, fingerprints or blood type of the individual, (e) the personal opinions or views of the individual except where they relate to another individual, (f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence, (g) the views or opinions of another individual about the individual, and (h) the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual; The records in question are the second and third complaints and investigation reports, a letter from the third investigator to the complainant; correspondence with the Premier's office; the complainant's and witness' statements in the investigation files. It is our view that the records in question contained the personal information of the complainant, as defined in sections 2(1)(a) through (f) of the Act . Although the second investigation report did not identify the complainant by name, it is our view that in the context in which the report would have been presented to those involved with the investigation, it contained the complainant's "personal information" as defined in section 2(1) of the Act . Conclusion: The records in question contained the complainant's "personal information", as defined in section 2(1) of the Act . Issue B: Did MBS disclose the complainant's personal information in the second and third harassment complaints to various individuals in contravention of section 42 of the Act ? Section 42 of the Act prohibits the disclosure of personal information by an institution, except in the circumstances listed in sections 42(a) through (n). In our view, the section relevant to the disclosures in question is 42(d), which states: An institution shall not disclose personal information in its custody or under its control except, (d) where disclosure is made to an officer or employee of the institution who needs the record in the performance of his or her duties and where disclosure is necessary and proper in the discharge of the institution's functions; MBS has a responsibility to all employees to provide a workplace free from harassment. Therefore, it is our view that disclosures of personal information to employees who needed the record in the performance of their duties for the purpose of conducting an investigation or taking remedial action to ensure that the workplace was free of harassment, were necessary and proper in the discharge of the MBS' functions. Second Harassment Investigation Complaint MBS submitted that the second harassment complaint was disclosed to the Investigator, the WDHP Co-ordinator, Legal Counsel, and the MBS Assistant Deputy Minister (ADM). Investigator The Investigator is responsible for investigating the allegations again
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Legislation
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Subject Index
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Signed by
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Ann Cavoukian
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Published
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Jun 08, 1994
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Type
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Privacy Complaint Report
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