Does an employee have a right to see his or her own personnel file, without first obtaining the employer’s approval?
If you are an employer, and an employee demands to see his or her personnel file, must you oblige?
In B.C., Alberta and federally, subject to certain exceptions, an employee is able to view his or her own personnel file.
The employee need not obtain anyone’s approval to request access to his or her file. However, the employer may need time to ensure it allows the employee to see only that information that the employer is permitted to share. For this reason, the employee may not be able to see the file immediately upon request. Certain time limits may apply to the employer, however.
In typical Canadian fashion, a more complete answer depends on which laws govern the employer.
Which Law Applies?
The federal Personal Information Protection and Electronic Documents Act (PIPEDA) applies to employee information in connection with a federal work, undertaking or business (FWUB). Examples of FWUBs include banks, telecommunication companies, airlines and interprovincial trucking, shipping and railway organizations.
The federal Privacy Act applies to employee information in federal government institutions.
In British Columbia, employee information held by provincially-regulated organizations is covered by the B.C. Personal Information Protection Act. In Alberta, such information held by provincially regulated organizations is covered by the Alberta Personal Information Protection Act.
While these various statutes have many similarities, there are also several differences.
What Is Personal Information?
In general, “personal information” is broadly defined to mean information about an identifiable individual. It includes factual or subjective information about that individual. Examples of personal information may include the individual’s name, birth date, address, gender, physical description, education, medical history, religion, political affiliations and beliefs, income, employment related information, opinions about the individual, and visual images such as photographs and videotape where individuals may be identified.
What Rights do Employees Have?
Employees in B.C. and Alberta, and those of federally regulated organizations have the right to access any or all of their own personal information, at little or no cost to the employee.
Unionized employees under an applicable collective agreement may be able to take advantage of a clause that allows employees to view their personnel files.
An employer’s policies might also contain provisions relating to a right to access personal information.
Generally, employees in B.C. and Alberta, and those of federally regulated organizations have a fairly broad right to access their own personal information in their personnel files. There are exceptions, though. This means that the employee may not be able to see some information in those files.
The exceptions are generally construed narrowly. The exceptions include, for example, restrictions on sharing information about third parties or ongoing investigations.
Some records containing information within exceptions may be released only in part.
Employees in B.C. and Alberta, and those of federally regulated organizations also have the right to challenge the accuracy and completeness of information held by their employers, and to request that such information be amended if it is inaccurate or outdated.
Employees who believe their employer has not complied with applicable privacy legislation may, within certain narrow time limits, request a review by the applicable Privacy Commissioner.
This is a modified version of an article that appeared in the Kelowna Daily Courier on March 22, 2019, the Kelowna Capital News on March 31, 2019 and other online publications. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or firstname.lastname@example.org. Check out our website, www.inspirelaw.ca.