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McMaster University

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Frequently Asked Questions (FAQs)

Link to PDF of all FAQs PDF

EMPLOYMENT

1. What are the consequences for an employee of the University who destroys a record that is the subject of a request, with the intent of evading the request?

FIPPA does not expressly create an offence for the willful destruction of records for the purposes of evasion. However, under s. 61(1)(d) the destruction of a record would be an offence where it is done to willfully obstruct the Commissioner's performance of his or her functions under the Act. Such an offence is subject to a maximum fine of $5000.

2. Will internal memos that contain recommendations and refer to an individual by name, be available to that individual?

A head may refuse to disclose to the individual to whom the information relates personal information that is evaluative or opinion material compiled solely for the purpose of determining suitability, eligibility or qualifications for employment or for the awarding of an honour or benefit where the disclosure would reveal the identity of a source who furnished information to the University in circumstances where it may reasonably have been assumed that the identity of the source would be held in confidence.

3. Could an employee's own personal information be withheld by a University under s. 18 in cases where the employee has made a claim against the University?

An employee has a general right to access his or her own personal information held by the University under FIPPA s. 47(right of access), subject only to the exceptions in s. 49(exemption to right of access). Unless an exception under s. 49 applies, the University shall not withhold the personal information from the employee.

4. If a severance document indicates that the Employer/Employee will not release information and the Employer is forced to do so under FIPPA, can the previous employee sue?

Severance agreements are subject to FIPPA under s. 65(7)(application of the Act). Any remedy available to the Employee in such instances as described above will be determined as a matter of contract law. One may not contract out of a duty imposed by statute, but the terms of the severance document may contain an available remedy for the Employee should the Employer be forced to disclose such information. Regardless of what the severance document says, the Employee will not be able to prevent the disclosure of the information where such information must be disclosed pursuant to FIPPA.

5. Can an institution confirm, in response to a telephone inquiry, whether an individual is employed with the institution and their specific salary?

The legislation allows the head of an institution to release information voluntarily in the absence of a request, or in response to an oral request, provided that nothing in the Act prohibits the release of that information. A disclosure does not constitute an unjustified invasion of personal privacy if it discloses the classification, salary range and benefits, or employment responsibilities of an Individual who is or was an officer or employee of an institution governed by FIPPA. The specific salary of an individual would be protected personal information.

6. What personal information on an employee can be provided to a union and under what section of the Act would this occur?

Other than basic contact information and employment status, no other personal information can be provided to a union unless the individual has given written consent for the disclosure of specific personal information to the union [FIPPA s.21 (1) (a)(consent to disclose personal information)].

7. Can personal information be collected about an employee as part of an internal investigation without their permission?

FIPPA s.39 permits the indirect collection of personal information in certain circumstances, as described in the following subsections of s.39:

  1. the information is collected for the purpose of determining suitability for an honour or award to recognise outstanding achievement or distinguished service;
  2. the information is collected for the purpose of the conduct of a proceeding or a possible proceeding before a court or tribunal;
  3. the information is collected for the purpose of law enforcement.
8. What can be withheld regarding internal investigations of staff\faculty misconduct? Who has a right of access to this information?

Under s.65(6)(non-application of the Act), FIPPA does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to proceedings or anticipated proceedings before a court, tribunal or other entity relating to the employment of a person by the institution. Thus, any materials relating to such an investigation may be withheld if a proceeding is anticipated.

9. Can full details of a contract including personal information be disclosed to Revenue Canada for the purposes of tax evasion investigations?

FIPPA s.42(g)(law enforcement) permits disclosure of personal information where disclosure is to an institution or a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result.

10. Can personal information be disclosed to the Unemployment Insurance Commission if they inquire about an employee?

FIPPA s. 42(g)(law enforcement) permits disclosure of personal information where disclosure is to an institution or a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result.

Moreover, under s. 21(1)(d)(statutory authorization), a head may not refuse to disclose personal information where disclosure is expressly authorised under an Act of Ontario or Canada. As the Commission is authorised to demand documentary evidence pursuant to its powers under the Inquiries Act, Canada, this exception may also permit the disclosure of such personal information.

11. If a university is provided with an employee's consent to release their employee records to WCB, is the University expected to sever third party information?

Yes, the University has an obligation to protect third party information. If the third party information is requested, the University would have to notify the individual(s) of the request and determine if the third party consented to the release of the information.

12. Can a union agreement provide for union access to an employee's information without consent?

According to Section 42 (1) (k)(bargaining agent), an institution may disclose personal information in its custody and under its control to a member of the bargaining agent only with the specific authorisation of the employee (or the next of kin or legal representative in the case of incapacitation). All such requests for information beyond basic contact information would require consent therefore, and would need to be assessed on a case by case basis.

13. How will FIPPA affect the information available to unions involved in grieving a hiring decision?

Under s.65(6)(non-application of the Act), if the record was collected, prepared, maintained or used by or on behalf of an institution in relation to proceedings or anticipated proceedings before a court, tribunal or other entity relating to the employment of a person by the institution, the materials relating to such an investigation are not subject to FIPPA. Such records may be subject to disclosure under other statutory or regulatory regimes.

If the records were not collected, prepared, maintained or used in such a manner, such records will be subject to FIPPA. Moreover, such records will likely be classified as personal information and, because they likely include personal recommendations or evaluations, character references or personnel evaluations, disclosure of such will be presumed to constitute an unjustified invasion of personal privacy under s.21(3)(g)(unjustified invasion of privacy). While some information may nonetheless be provided, any personal information that is not subject to a further exception would be severed.

14. Can an employer contact anyone they want for a reference check without consent from the employee or job applicant?

In an employment situation, FIPPA s.39(1)(a)(authorised indirect collection) applies. Therefore, personal information can only be collected by an institution directly from the individual to whom the information relates unless the individual authorises another manner of collection.

15. How long must the University keep employment applications of unsuccessful candidates or unsolicited applications?

According to Regulation 460, s.5(1)(retention of personal information), personal information that has been used by an institution shall be retained by the institution for at least one year after use unless the individual to whom the information relates consents to its earlier disposal the minimum period of retention of personal information that is contained in a telecommunication logger tape in the custody or under the control of the institution is 45 days rather than one year. Given the difficulty of defining the term 'use', it is advisable to retain unsolicited applications for a period of one year, in accordance with s.5(1) of Regulation 460.

16. Should students be allowed to access evaluation forms completed by employers who accept students on placement?

No. FIPPA s.49 (c)(evaluative or opinion material) allows for the withholding of personal information that is supplied explicitly or implicitly in confidence, and is evaluative or opinion material compiled for the purpose of determining suitability, eligibility or qualifications for admission to an academic program of an educational institution.

17. What constraints, if any, does the new legislation place on the practice of giving references (written or verbal) to potential employers of former (or current) student workers and staff of the university?

Generally, FIPPA prohibits the disclosure of such personal information without the pre-authorized written consent of the individual to whom the information relates.

18. Does s.39(2) "Notice to individual" apply in the employment setting?

A review of the relevant case law, suggests that s.39(2)(notice of collection) is applicable in the employment setting. The application of s.39(2)(notice of collection) has been considered by the Information and Privacy Commission in a number of decisions involving employers. In each case, the Commission has determined that employer was under an obligation to comply with the provision.

19. Is it acceptable to request input from other university departments when undertaking performance appraisals of staff members who provide service to those other departments?

Yes it is. Collecting information from other University departments does not constitute indirect collection of information. This is more accurately described as use of information in the University's custody and control.

20. In the context of someone applying for a non-academic position at the university, what information must be released as a result of an FOI request?

The person to whom personal information relates has a general right of access to any such personal information in the custody and control of an institution. However, this person is not entitled to information which would reveal personal information of another individual.

21. How do we address the tension between in camera deliberations about a potential new academic hire and the fact that the candidate can ask for that information under FIPPA? What about the academic evaluation component of such a file?

As FIPPA is currently drafted, such evaluative material relating to parties who are currently not University faculty or employees would likely have to be disclosed.

22. Currently, the Dean of Graduate Studies or his delegate interviews all candidates for academic positions and provides written comments back to the hiring department. Will such comments now be disclosed in the context of a Freedom of Information request?

As FIPPA is currently drafted, such evaluative material relating to parties who are currently not University faculty would likely have to be disclosed. However, for University faculty being considered for such positions internally, it would not have to be disclosed.

23. In the context of an academic promotion of an existing member of the faculty or student body, must the evaluations or any other material in the file be released under FIPPA?

As FIPPA is currently drafted, such evaluative material relating to University faculty or employees would presumably be exempt from disclosure.

24. In the context of someone applying from outside McMaster for an academic position, must assessments and references be released under FIPPA?

As FIPPA is currently drafted, such evaluative material relating to non-University faculty or employees would not appear to be exempt from disclosure.

 

PLEASE NOTE: These Frequently Asked Questions are intended to provide general information only, not legal advice. Given the general nature of these questions, the materials herein cannot be entirely accurate, complete, reliable, or error-free in specific circumstances. Please refer specific questions in relation to your particular circumstances to the University Secretariat for specific responses.