A recent decision of the Assistant Information & Privacy Commissioner of BC may be of interest to employers or related associations wanting access to information about the financial status of union-sponsored pension plans. Such information might prove valuable when establishing competitive retirement arrangements or negotiating collective agreements. Motivation for requesting the information appears to be irrelevant.
The Independent Contractors and Business Association (ICBA) applied to the BC Financial Institutions Commission (FICOM) under the Freedom of Information and Protection of Privacy Act (FIPPA) for access to pension plan filings for 16 pension plans sponsored by industry trade unions. FICOM provided notice to the pension trustees that it had decided to release the information. Pension trustees for 13 of the 16 plans asked the Commissioner to review FICOM’s decision. The corresponding 13 unions were granted standing at the inquiry.
At issue was whether FIPPA required FICOM to withhold the requested information which included, for each of the 13 plans, average compensation for plan members, actuarial opinions relating to the financial liability that the plan imposes on employers and members, and data relating to the financial position of the plan.
In opposing the disclosure, the unions and trustees argued that release of the requested information would ham the business interests of the pension plan. They attributed anti-union motives to the ICBA’s request, and suggested ICBA would use the information to undermine political and economic support for the pension plans, and to convince members to abandon the union. This would inflict financial loss on the unions and the plans, and harm their competitive positions. The unions also submitted that disclosure would harm their financial interests in collective bargaining by negatively affecting their bargaining position when negotiating future employer contributions to the pension plans.
ICBA claimed its motives in seeking the information were irrelevant to the application of the FIPPA, and submitted that the opposing parties had failed to satisfy their onus to draw a clear connection between the release of the information and the harms they alleged. It also submitted that the unions had not proved that the release of the information would unduly interfere with their negotiating position during collective bargaining.
The Assistant Commissioner agreed that ICBA’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 unions had established on the evidence that release of the information could reasonably be expected to cause the harms they alleged. Based on that evidence, the Assistant Commissioner was not persuaded that disclosure would cause the plans to lose members. In addition, he concluded that the unions and trustees had failed to show how the disclosure of 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 provide ICBA access to the requested information.