Labour and Employment Law Blog

Some private sector employers may not appreciate that employees in British Columbia and Alberta have rights to access the personal information their employer holds about them, subject to limited exceptions. 

More employees are aware of their right to request access to their information, and it is becoming commonly used as a pre-litigation discovery tool. 

Advance planning will help employers organize their operations and records to comply with their privacy and access obligations, be prepared to respond, and understand the implications. 

Proactive compliance

Organizations in British Columbia and Alberta should have a privacy policy that applies to employees and its practices regarding collection, use, disclosure, retention, privacy and security protections, access and correction issues, and how it handles complaints and incident reporting.  The policy is important for compliance, to guide the organization as well as so employees have constructive notice of the practices.

Organizations should be limiting collection and retention of personal information.  Human resources records that are limited to what is reasonably necessary not only supports compliance but also helps to limit challenges in the case of an access request.

The organization should also ensure it assigns responsibility for privacy compliance and handling access and other requests.  In many cases, it is appropriate to designate a position in human resources to handle privacy and access matters related to employment records.

Are there limits to the right of access?

While employees have a right to access their own personal information, it is subject to exceptions, and they do not necessarily have a right to their whole personnel file.  A recent Alberta decision reaffirmed this, and discussed other factors that may limit access such as:

• Information about the business (not about the employee);
• Information about processes (even if involving the employee);
• Work product (e.g. records of work-related meetings); and
• Opinions of other employees (including opinions about the applicant individual).

It is important to note that organizations are obligated to withhold information that would reveal personal information about another individual.

What about complaints and investigations?

Employees may have some right to access information collected or created about them in the course of an investigation.  Organizations should consider this and plan accordingly when they collect information in an investigation and report. 

There are a number of exceptions that may apply to an individual’s right of access to investigation information.  These include:

• If the information is legally privileged (protected by solicitor-client, or litigation privilege);
• If it was collected for an investigation or legal proceeding (in British Columbia, this protection is more limited, such as to information collected without consent and the exception ends once the investigation and any associated proceedings are complete);
• If it reveals personal information about another individual (as noted above); and
• If it would reveal the identity of an individual who has provided personal information (in Alberta, if the information is provided in confidence) about another individual and the individual providing the personal information does not consent to disclosure of his or her identity.

The application of exceptions is not always clear.  For example, a recent BC Supreme Court decision determined that a workplace investigator’s report prepared at the direction of in-house counsel and marked “privileged”, was not.  The Court did not find the report to be “essential to the maintenance or operation of the client-solicitor relationship.”  However, the Court decided to withhold the report to protect the privacy interests of the witnesses.

Another recent privacy case reaffirms that more than one of these exceptions might apply at the same time.  Further, where personal information about an employee is intertwined with the personal information about other individuals, it should be withheld.  Therefore, while statements by individuals about other employees may not necessarily be protected under the “investigation” exception, organizations may be obligated to withhold the information on other grounds.   

If we can assist your organization with its record-keeping practices, including with respect to complaints, organizing workplace investigations, as well as any related privacy and access matters, please reach out to a member of our Labour & Employment group.