Graham Steele, Nunavut’s Information and Privacy Commissioner, has ruled that the Department of Human Resources (HR) must undertake further searches for records that may reveal whether a former Department of Health employee has been “blacklisted” from future employment with the territorial government.
The ruling stems from an employee’s request for access to specific records related to their employment, which included concerns over a possible “Do Not Hire” or “Hire with Caution” list.
The case, summarized in Report Number 24-272-RR, involved three separate access to information requests filed by the employee. The requests were directed to HR, seeking detailed employment records, which were partially disclosed with certain redactions. The employee subsequently requested a review of those redactions and the thoroughness of HR’s search for records.
The Commissioner found that, while HR applied most of the redactions correctly under section 23(1) of the Access to Information and Protection of Privacy Act (ATIPPA), which protects third-party personal information from unreasonable disclosure, there was one instance where HR misapplied this exemption.
Specifically, HR redacted the name of a GN employee who was the recipient of an email. Commissioner Steele ruled that the employee’s name should be disclosed, stating, “I see no reason for this addressee’s name to be redacted. To do so would not be an unreasonable invasion of their personal privacy.”
Similar case in Saskatchewan
Beyond the redaction issues, the Commissioner identified deficiencies in HR’s search for records. The most notable concern was whether HR had adequately searched for records related to the employee’s alleged blacklisting. The employee had raised the issue in their access request, asking for all communications related to their termination, non-renewal, or potential blacklisting from future GN employment.
Commissioner Steele acknowledged that the existence of “Do Not Hire” and “Hire with Caution” lists is a plausible concern, given that similar cases have arisen in other jurisdictions, including a recent decision by the Saskatchewan Information and Privacy Commissioner.
“If the lists exist, they are records held by the GN,” Steele emphasized, noting that the employee would be entitled to receive a copy of any record placing them on such a list under ATIPPA.
Criticism of HR
The Commissioner criticized HR for not providing a clear explanation of its search efforts regarding the blacklist issue. He outlined three potential reasons for the absence of responsive records: either the employee was not blacklisted, the records are held by another department, or HR did not conduct a proper search.
To address this, the Commissioner recommended that HR, in collaboration with the Department of Health, conduct a more thorough search for any records related to the alleged blacklist, including disclosing whether such lists exist, where they are kept, and if the employee’s name appears on them.
Another issue requiring further search was related to an HRM1010 complaint filed by the employee in 2022, concerning workplace harassment. The employee sought records detailing discussions and minutes of meetings related to the intake panel’s decision not to advance their complaint to the investigation stage. Although HR provided some relevant records, the Commissioner found it “implausible” that no records existed of the intake panel’s discussions or decisions.
“The HRM1010 policy is an important piece of the GN’s management of its human resources,” Steele noted, referencing the significant number of complaints processed annually under this policy. He found it difficult to believe that no documentation existed to explain why the employee’s complaint was dismissed without investigation.
The Commissioner concluded that HR’s search for records in both the blacklist and HRM1010 cases was inadequate. He recommended that HR, again in cooperation with the Department of Health, undertake further searches and disclose any additional records found.
For more information, see Department of Human Resources (Re), 2024 NUIPC 21 (CanLII).
