Privacy commissioner tells employer to release document requested by employee
Saskatchewan’s privacy commissioner is calling on the Saskatchewan Health Authority (SHA) to provide a worker with a so-called “Do Not Hire List/Cautionary Hire List” following the worker’s request.
The issue stems from the worker’s access to information request to SHA about records related to the list.
The SHA, however, rejected the request, noting that it was withholding some information in full pursuant to subsection 30(2) of The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP).
The employer also indicated it was providing access in full to other records including human resource and labour relations documents and the work standard pertaining to the SHA Cautionary Hire List.
Request to privacy commissioner
In January this year, the worker submitted a request to the Office of the Saskatchewan Information and Privacy Commissioner for review of the SHA’s decision.
The privacy commissioner requested documents from SHA regarding the issue, including the reasoning behind their rejection of the worker’s request.
The reason read: “Access to the list was refused subject to subsection 30(2) of LA FOIP. 30(2) permits the head to refuse to disclose to an individual personal information about that individual that is evaluative or opinion material compiled solely for the purpose of determining the individual’s suitability for employment.
“The cautionary hire list provides a method for managers in the SHA to flag employees who, based on their previous working experience within the SHA, may not be suitable for future employment in the SHA. Whether or not an SHA employee is placed on the cautionary hire list as per the provided work standard is evaluative and based on the opinion of the employee’s manager.”
The SHA also said that the manager submits information to HR to place the former employee on the cautionary hire lis, and “that information is provided by the manager to HR in confidence, implicitly. Therefore, the SHA will not disclose to the employee whether or not their name was placed on the cautionary hire list.”
This reasoning is not enough to justify the rejection, said the privacy commissioner.
“Just stating that the information is ‘provided by the manager to HR in confidence, implicitly’ is not sufficient to meet the burden of proof required by section 51 of LA FOIP. I would expect further arguments to support why this is so,” said the commissioner. “The Work Standard was provided but if this was relevant to the statement made, the SHA did not point to anything in it to support its statement. Based on these points, I find that the burden of proof is not met, and the third part of the test is therefore not met.”
Recently, the National Labor Relations Board (NLRB) declared Meta's non-disparagement and confidentiality agreements with over 7,200 former employees unlawful.
Issue around ‘Do Not Hire’ list
The commissioner also raised the issue of the SHA maintaining such a list in the first place.
“The SHA’s aforementioned Work Standard sets out the steps required to place someone on the list and the process regarding ongoing maintenance of the list. It states that all external resumes, including contractors, must be checked against the cautionary hire list prior to any offer being made. This step is done by employees in Workforce Planning & Employment Strategies.”
The commissioner also noted that it appears different departments have access to the list, raising the issue of privacy which the SHA used as reasoning for not providing the requested information to the worker.
“Who all has access to this list across the SHA is a privacy concern. How are potential breaches of privacy related to this list being caught and handled? If the SHA is reluctant to be transparent with individuals about being on the list and why, how are individuals supposed to challenge these decisions?
“I encourage the SHA to reconsider its use of these lists unless it can demonstrate that all access and privacy related concerns are adequately addressed.”
The privacy commissioner recommends that the SHA release the document to the worker within 30 days of the issuance of the commissioner’s report.
The report was dated July 26, 2024.
Canadian employers are increasingly hiring “underqualified” staff, according to a previous report by recruiter Robert Walters.
