Pension plan sponsors may be surprised to learn that information
provided to pension regulators pursuant to statutory filing
obligations could be more widely disclosed through an "access
to information" request. In a recent decision, the B.C. Assistant
Information and Privacy Commissioner ordered the B.C. Financial
Institutions Commission (FICOM), which regulates B.C. registered
pension plans, to disclose information related to benefits paid
under and the funded status of various multi-employer pension plans
(MEPPs) pursuant to a request under the B.C. Freedom of
Information and Protection of Privacy Act (FIPPA).
Overview of the Case
The Independent Contractors and Business Association (ICBA)
requested information about certain union MEPPs filed with FICOM.
The request was made under FIPPA, which applies to B.C. public
bodies. Specifically, ICBA requested: the average annual pension
paid; the average accrued monthly pension; the surplus or unfunded
liability from the previous valuation report; and the surplus or
unfunded liability from the current valuation report for each of
the pension plans.
After initially withholding some of the information requested by
ICBA, FICOM decided to disclose all of the requested information.
The trustees of the pension plans requested a review of FICOM's
decision, arguing that per s. 21(1) of FIPPA, disclosure is not
permitted where there is a reasonable expectation of harm to third
party business interests.
While the first two requirements for the application of s. 21(1)
of FIPPA were met – the information was financial information
and it was provided in confidence – the Assistant
Commissioner concluded that the trustees and unions failed to prove
the final requirement, that one of the harms enumerated in s.
21(1)(c) could reasonably be expected to occur. Section 21(1)(c)
requires the party opposing the release of the information to show
that the disclosure could reasonably be expected to:
(i) harm significantly the competitive position or interfere
significantly with the negotiating position of the third party,
(ii) result in similar information no longer being supplied to
the public body when it is in the public interest that similar
information continue to be supplied,
(iii) result in undue financial loss or gain to any person or
(iv) reveal information supplied to, or the report of, an
arbitrator, mediator, labour relations officer or other person or
body appointed to resolve or inquire into a labour relations
The Assistant Commissioner was not persuaded that the disclosure
would cause the unions to lose members, noting:
it is publically known that most defined benefit pension plans
there was no explanation given as to how ICBA could develop a
more attractive plan to lure away members – in light of
current economic conditions, a similar kind of plan would likely
face the same funding difficulties; and
the members would have access to this information anyway under
the B.C. Pension Benefits Standards Act.
Further, the Assistant Commissioner was also not persuaded that
the disclosure would interfere with the union's negotiation
with employers over pension contributions, noting the age of the
data at issue. Accordingly, the Assistant Commissioner ordered the
requested information to be disclosed to ICBA.
Although the facts of this case arise in the context of a B.C.
employers' association's request for information with
respect to B.C. MEPPs, it would be possible for similar requests to
be made in other jurisdictions with similar freedom of information
legislation. For example, Ontario's freedom of information
legislation has very similar provisions to the FIPPA provisions
considered in this case.
Sponsors of single employer plans may also want to consider this
decision, as it is not clear that it is restricted to MEPPs. For
example, the Assistant Commissioner indicated that the
"motivations in seeking release of the information cannot be
relevant to the outcome of the s. 21(1) analysis." Could an
access to information request be used to gain information about a
competitor? As indicated above, the Assistant Commissioner did note
that the "age of the data was such that its release would not
significantly interfere with labour relations." Presumably, if
the request related to more current data, the case against
disclosure based on damage to the competitive position of the third
party would have been more compelling.
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Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
Businesses and employers face exposure to a variety of claims for mismanagement or misuse of personal information by employees. Damages may depend on how sensitive the information is and how it is misused.
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