Cue the tape

This post was originally published in collaboration with Maciej Lipinski, who has since moved on from his role at KPMG in Canada.

​In a recent decision, Ontario’s Information and Privacy Commissioner (IPC) found that a school board could not deny a teacher’s request for disclosure of security footage under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) on the basis that the footage concerned a labour relations or employment-related matter in which the school board had an interest.

Schools and other public sector employers are well-advised to take note that, in arriving at its decision, the IPC departed from its past decisions and signaled that the circumstances in which public sector employers can rely on MFIPPA’s “labour relations or employment” exclusion may have narrowed.

The IPC’s decision arose from a request for security footage capturing an interaction between the teacher and a principal. That interaction had resulted in a complaint by the principal and a subsequent workplace investigation by the school board. The employer denied the teacher’s request for access to the footage based on the exclusion under MFIPPA that applies to documentation of “meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.”

The teacher appealed the school board’s decision to the IPC, which found in the teacher’s favour and referred the matter back to the school board with the instruction that the school board could not rely on the “labour relations or employment-related matters” exclusion to deny access to the security footage. Notably, the IPC did not order the school board to disclose the security footage, but only required that it issue a new decision in response to the disclosure request.

The IPC’s decision represents a change in course
In arriving at its decision, the IPC did not accept the school board’s arguments that because the security footage was used as part of a workplace investigation into employee misconduct, there was a clear labour and employment interest in the video footage. In making this decision, the IPC diverged from past decisions, which had found that similar security footage and investigation-related materials were excluded from disclosure based on their connectedness to “labour relations or employment-related matters.” The IPC gave two reasons for its determination that these past decisions did not apply to the matter before it:

1. The documents and footage addressed in those decisions were collected in different fact scenarios from the matter at hand.
2. A refusal to grant the employer’s exclusion of the requested footage was consistent with “the evolution of the IPC’s approach to the issue” and “better reflects the accountability purposes” of MFIPPA.

The latter reason is a notable signal to all Ontario public sector employers that future IPC decision-making may increasingly favour disclosure of requested documents. Employers are accordingly well-advised to carefully consider their rationale for denying any disclosure request under MFIPPA. As the IPC has indicated in this decision, employers who deny such requests should be prepared to demonstrate that the basis for denial is grounded in both the words of MFIPPA and its accountability purposes.

If you have any questions, please do not hesitate to contact Maciej Lipinski at 416-468-7712 or Eren Erinc at 416-468-7498.