Office of the Information and Privacy Commissioner – Order F11-33; Access to Employee Severance Agreements

This review of the City of Prince Rupert’s decision to refuse to disclose records in relation to a severance agreement may provide some assistance to local governments considering similar issues.

In this Order, the Adjudicator considered whether solicitor-client privilege applied to certain documents requested by the applicant, and also considered whether the release of the information sought would be unreasonable invasion of privacy under s. 22(4) of the Freedom of Information and Protection of Privacy Act (“FIPPA”).

The City argued that legal privilege applied to a cover letter and calculation of a severance amount sent from a former City employee’s lawyer to the City’s lawyer.  The Adjudicator noted that for legal privilege to apply, the communication must between a client (or the client’s agent) and the client’s legal advisor.  In this instance, the communication was between the City’s legal advisor and a third party’s legal advisor, and therefore solicitor client privilege could not apply.  The Adjudicator ordered that the City disclose the documents.

The City also argued that disclosing an executed severance agreement would be an unreasonable invasion of the former employee’s personal privacy.  The Adjudicator considered this argument in relation to section 22 of FIPPA, which requires a public body to determine if the information requested is personal information, and then to consider whether disclosure is not an unreasonable invasion of third party privacy under s. 22(4).  In this instance, the severance agreement contained information about an identifiable individual and therefore constituted personal information.

Section 22(4)(e) of FIPPA provides:

(4) A disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy if

(e) the information is about the third party’s position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister’s staff,

The Adjudicator found that severance agreements with respect to public body employees relate to “remuneration” within the meaning of section 22(4)(e).  Therefore, the disclosure of the agreement in question did not constitute an unreasonable invasion of privacy and the Adjudicator ordered that the City disclose a copy of to the applicant.

The Order provides a useful summary of legal privilege, which does not automatically apply to all communications to or from lawyers.

The Order also confirms that severance agreements will generally be subject to disclosure under section 22(4)(e).