A recent decision of the AssistantInformation & Privacy Commissioner of BC may be of interest to employers orrelated associations wanting access to information about the financial statusof union-sponsored pension plans. Such information might prove valuable whenestablishing competitive retirement arrangements or negotiating collectiveagreements. Motivation for requesting the information appears to be irrelevant.
The Independent Contractors andBusiness Association (ICBA) applied to the BC Financial Institutions Commission(FICOM) under the Freedom of Informationand Protection of Privacy Act (FIPPA) for access to pension plan filingsfor 16 pension plans sponsored by industry trade unions. FICOM provided notice to the pension trusteesthat it had decided to release the information. Pension trustees for 13 of the16 plans asked the Commissioner to review FICOM’s decision. The corresponding 13 unions were granted standingat the inquiry.
At issue was whether FIPPArequired FICOM to withhold the requested information which included, for eachof the 13 plans, average compensation for plan members, actuarial opinionsrelating to the financial liability that the plan imposes on employers andmembers, and data relating to the financial position of the plan.
In opposing the disclosure, theunions and trustees argued that release of the requested information would hamthe business interests of the pension plan. They attributed anti-union motivesto the ICBA’s request, and suggested ICBA would use the information toundermine political and economic support for the pension plans, and to convincemembers to abandon the union. This would inflict financial loss on the unionsand the plans, and harm their competitive positions. The unions also submittedthat disclosure would harm their financial interests in collective bargainingby negatively affecting their bargaining position when negotiating future employercontributions to the pension plans.
ICBA claimed its motives inseeking the information were irrelevant to the application of the FIPPA, andsubmitted that the opposing parties had failed to satisfy their onus to draw aclear connection between the release of the information and the harms theyalleged. It also submitted that the unions had not proved that the release ofthe information would unduly interfere with their negotiating position duringcollective bargaining.
The Assistant Commissioner agreed thatICBA’s motives were not relevant to the outcome of his analysis under the Act.The question under the FIPPA was simply whether or not the trustees and unionshad established on the evidence that release of the information couldreasonably be expected to cause the harms they alleged. Based on that evidence,the Assistant Commissioner was notpersuaded that disclosure would cause the plans to lose members. In addition,he concluded that the unions and trustees had failed to show how the disclosureof the information would be likely to interfere significantly with the unions’negotiating position, given the age of the data. As a result, FICOM was ordered to provideICBA access to the requested information.
If you have any questions regarding the information in this article, please contact Claude Marchessault.