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The extent to which an investigation report must be disclosed is not yet a settled issue in the case law. While solicitor-client privilege is at times used by lawyers to withhold reports from the parties, a recent decision from British Columbia’s Office of the Information and Privacy Commissioner (the “IPC”) has now added privacy legislation as another reason why public organizations can justifiably limit the disclosure of investigation reports.
In this case, a student of the University of British Columbia (“UBC”) had made a sexual harassment and sexual assault complaint against a faculty member. After UBC concluded its investigation, the student requested the resulting investigation report. UBC disclosed portions of the report to the student but withheld the rest, claiming that it would be an invasion of the personal privacy of third parties within the meaning of section 22 of the Freedom of Information and Protection of Privacy Act (“FIPPA”).
Section 22 of FIPPA states:
The head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s personal privacy.
The withheld information related to the faculty member alleged to have engaged in sexual assault and harassment against the student as well as to third parties interviewed by the investigator.
The IPC held that in the absence of overriding factors to require disclosure, the information ought to be withheld. The IPC specifically noted that there were no legal rights (i.e. as part of a legal proceeding) at stake that would require disclosure.
The IPC found that the information was shared in confidence, and that the faculty member or third parties who participated in the investigation did not expect that the information they shared with the investigator would be made public.
Moreover, the IPC found that because the information related to serious allegations of sexual assault and harassment, its disclosure would expose the faculty member to potential mental distress and reputational harm.
The IPC concluded that while it can “empathize with the [student’s] desire to learn more details about the investigation…her desire to learn more about the investigator’s reasoning and other people’s evidence does not outweigh the privacy rights of the faculty member and other third parties in this case.”
The IPC was able to ground its findings on disclosure in privacy law restrictions as UBC fell within the purview of FIPPA. It is important to note that FIPPA only applies to public bodies, which include provincial government departments and agencies and local public bodies. Local public bodies include educational bodies (such as school divisions, universities and colleges), health care bodies (such as hospitals and regional health authorities) and local government bodies (such as the City of Toronto, municipalities, local government districts, planning districts and conservation districts).
As such, the requirements of FIPPA will not enable private sector organizations, wishing to keep their investigation reports from the parties, to automatically withhold the report. In these circumstances, the relationship between the investigator and the organization will be analyzed to determine whether a solicitor-client privilege can be established (i.e. is the investigation being conducted for the purposes of or to assist with the provision of legal advice?), as a result of which the investigation report need not be disclosed. It is, therefore, important that the mandate of an investigator be carefully thought out and presented in a retainer agreement at the beginning of the investigation to avoid unnecessary surprises at the end of the process.