NB Judge Confirms Severance Payment Information Must Be Protected From Public Disclosure Under RTIPPA

March 4, 2016

In a decision issued February 29, 2016, Justice Morrison of the NB Court of Queen’s Bench, dismissed an appeal which would have otherwise compelled a University to disclose severance payment information, which was expressly shielded by a confidentiality clause.

Under the Province’s Right to Information and Protection of Privacy Act (RTIPPA), information related to the “job classification, salary range, benefits, employment responsibilities or travel expenses” for an “officer or employee of a public body” must be disclosed by the public body, on the basis that RTIPPA expressly states such personal information is “not an unreasonable invasion of a third party’s privacy.” Public bodies under the Act include: Parts I-IV of the public service, municipalities and publically-funded universities.

In this case, a union representative issued a right to information request to a University to provide information related to “salaries, bonuses, pensions and severance payments” for senior executives at the institution. The University provided all data, with the exception of “severance payment” information, on the basis such information must be protected from disclosure to avoid unreasonable invasion of employee privacy. The parties’ dispute proceeded before the Privacy Commissioner, who concluded that severance payment information was a “benefit” and was, thus, required to be disclosed pursuant to subsections 21(3)(f) and (h) under RTIPPA. Despite the fact that the severance data was subject to contractual confidentiality agreements, the Commissioner ruled that no party could “contract out” of their obligations under the Act and confirmed the requirement for disclosure. The University continued to refuse to disclose the information and the union appealed to the Court.

In the RTIPPA Appeal, Justice Morrison held that the Commissioner’s broad interpretation of “benefits” did not “strike the right balance” between the two fundamental objects of RTIPPA; being privacy on the one hand and transparency on the other. In upholding the University’s position to refrain from disclosing severance payment information, the judge concluded:

 … severance payments do not fall within the definition of ‘benefits’ under section 23(3)(f) nor are they a ‘discretionary benefit’ within the meaning of subsection (h) of RTIPPA. The disclosure of severance payment information is therefore deemed to be an unreasonable invasion of a third party’s privacy pursuant to section 21(2)(e). As a result the [employer] is not required to disclose the payment information.

Impact On “Public Employers” (Universities, Municipalities, Public Sector):

Public employers can shield from disclosure any documentation related to the settlement or severance packages for terminated/laid off employees.

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