A report released by the province’s Information and Privacy Commissioner highlights limits to the Access to Information and Protection of Privacy Act (ATIPPA).
A Nalcor employee – who was not named in the report – requested access to records about the evaluation of his position and how his salary was determined.
Nalcor withheld most of the information, citing sections of the Energy Corporation Act (ECA) and ATIPPA – specifically those dealing with significant loss or gain to a third party, harm to third party business interests and commercially sensitive information.
The employee objected to Nalcor’s decision and took his request to the Office of the Information and Privacy Commissioner.
The commissioner, Donovan Molloy, found Nalcor failed to prove the information could be withheld under ATIPPA, but Molloy was still required by the ECA to uphold Nalcor’s decision to withhold the information from the employee.
“The key thing about this report is that under the ATIPPA, we didn’t agree with Nalcor that the records shouldn’t be released,” said Sean Murray, director of research and quality assurance with the Office of the Information and Privacy Commissioner.
“We only agreed under the Energy Corporation Act that the records shouldn’t be released, and that’s because the Energy Corporation Act has a provision by which, if the chief executive officer (in this case, of Nalcor) determines that information is commercially sensitive and that determination is confirmed by the board of directors, then the commissioner is required to uphold that decision – that’s the way the legislation is written, and that was the basis for the decision,” Murray said.
“That provision takes precedence over the ATIPPA. So, it could arise in any number of contexts – the definition of commercially sensitive information in the act is quite broad.”
Information not personal
The exact details sought in the ATIPPA request by the employee was the number of points his position was assigned under salary administration scales. It’s a process that determines the salary attached to a position, and it uses methodology created by the Korn Ferry Hay Group (KFHG).
The points awarded to the employee’s position were withheld.
Nalcor claimed that information would reveal commercial and technical information supplied by KFHG.
However, the commissioner found the information created by KFHG using the Hay Methodology – a widely used job evaluation method – was not technical information and not commercial information as set out in ATIPPA.
“I reject Nalcor’s argument that disclosure to the complainant (the employee) could result in significant harm,” Molloy’s report reads.
Still, Molloy’s findings under ATIPPA were overruled by the ECA.
The withheld information included a chart with points awarded to the position based on Hay Methodology. That information about the employee’s position was included on two spreadsheets of Hay points for each position at Nalcor.
The only record Nalcor provided to the employee was minutes from a meeting. The commissioner’s report indicates the minutes did not deal with the information the employee requested.
The commissioner’s report quotes the employee, who said the information he requested was directly related to his position.
“Many others in the organization have access to this information,” he was quoted in the report.
However, Murray explained the information the employee was seeking was not technically personal information, rather information about a particular position.
“This is evaluating what the position is – what job duties are included within the position, and then determining how that position is then rated or ranked within the organization.”
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