A recent decision of the Office of the Information & Privacy Commissioner ("OIPC") addresses the scope of information that an unsuccessful job applicant may be able to access pursuant to privacy legislation. The decision stems from an information request by a number of job applicants for access to records pertaining to their applications to work for Compass Group Canada Ltd. ("Compass") – a food, cleaning and maintenance services company.
The job applicants, unionized employees with the Hospital Employees Union, were all employed providing housekeeping services in provincial health facilities. The health authority subsequently contracted with Compass for the same services, leading the workers to apply for their previous positions with the new company. When they were not successful in their applications, the union sought whatever personal information Compass collected or produced about them during the recruitment process.
While disclosing some information, Compass refused to provide the records pertaining to the interview and application process on the basis that the disclosure would reveal: confidential commercial information that could harm Compass' competitive position; personal information about the Compass interviewer; and, the identity of referees that did not consent to the disclosure of his or her identity.
In response to the refusal to provide more information, some of the applicants sought an inquiry before the OIPC. Elizabeth Barker, a senior adjudicator with the OIPC, held that since the evaluations recorded by the interviewers, as well as the references submitted by the referees, were about the applicants, they were the personal information of the applicants and therefore susceptible to being disclosed under s. 23 of the Personal Information Protection Act (“PIPA”).
However, the OIPC adjudicator noted that a countervailing consideration was that both the evaluations and the references were also the personal information of their respective creators (i.e., the interviewers and the referees). While this ruling is not surprising in respect of the information submitted by third-party referees, the fact that the OIPC applied the same logic to the Compass interviewers breaks with the exception in PIPA that "work product information" – information created in the course of an individual's employment – is not considered to be personal information.
The adjudicator broke the tie between the competing claims of entitlement to the information by ordering the disclosure of the records only where redactions could adequately conceal the identities of the non-consenting parties.
Compass' additional claim that the records from their internal labour recruitment process were confidential commercial information, the disclosure of which could harm its competitive position, was summarily rejected by the adjudicator.
It may come as a surprise to some that the evaluation of job applicants is not shielded from personal information requests. Employers should be on notice that any information collected or produced during the application process is potentially disclosable under PIPA, along with proprietary material created for the purposes of evaluating candidates. As such requests for information can be prologue to a subsequent complaint or civil action, employers need to be mindful that any information they record about an applicant may be subject to disclosure.
Further, organizations should consider drafting a record retention and destruction policy. PIPA requires that collected personal information be retained for a minimum of one year prior to being destroyed. This rule includes personal information produced and collected in the process of recruiting employees irrespective of the success of the job applicants. An effective policy will ensure that organizations both properly retain and efficiently eliminate personal information in accordance with the organization's objectives and the necessary statutory requirements.
Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits.