The province's privacy commissioner says Mount Pearl city council should not have forwarded employee complaints about alleged harassment to the person they had accused of harassing them.
In a report issued Friday afternoon, privacy commissioner Michael Harvey said council's handling of the situation was a violation of the Access to Information and Protection of Privacy Act (ATIPPA).
Council's decision to hand over the letters to Steve Kent — who at the time was suspended from his job as the city's top bureaucrat — "cannot be justified," Harvey wrote in his report.
The privacy watchdog said he is not pursuing a prosecution under the law, noting that the city did not believe it was breaching the employees' privacy.
But Harvey suggested that council "consider means by which to make amends … such as written letters of apology."
The privacy commissioner's report is the latest chapter in a saga that has gripped municipal politics in Mount Pearl since last fall, and fills in some blanks in the story.
According to the report, a city employee wrote a letter of complaint to the mayor on Sept. 26, 2019, alleging harassment by Kent. Around the same time, another employee wrote a separate signed letter of complaint. Other employees anonymously made similar allegations.
Council voted to place Kent on paid leave at a private meeting on Oct. 1, and called in an independent external investigator.
In mid-November, a majority of council decided to give those signed complaint letters directly to Kent — even though no formal access to information request had been made for them at that point.
According to Harvey's report, that happened "without asking the writers or any of the individuals named in the letters for their consent," or giving them any notice.
The two employees who wrote the letters say they were assured by the investigator that their complaints would remain confidential. Both feared "retaliation," according to the report.
However, the city felt it had to notify Kent of the identity of the complainants "in order to comply with the requirement of a fair and impartial investigation," Harvey wrote.
Council took the position that, under the access to information act, the identity of a complainant is "relevant information" that can be disclosed to the subject of the complaint. According to the report, they believed they had a statutory obligation to provide the complaint letters to Kent.
But Harvey's report stressed that no access to information request had actually been made when council decided to release the letters, so that section of the law didn't apply.
The commissioner was critical of council's decision to provide Kent with the complaint letters, noting that they had already sent the matter off for an independent review.
"Having retained an external investigator to carry out the investigation, it is clear that council was not directing the investigation," he wrote in the report.
"Therefore, this disclosure cannot be considered to have been necessary for conducting a proper investigation, and may even have constituted interference in the investigation."
The commissioner said the investigator, not council, should have made the decision on whether the identities of the complainants would be disclosed, in the absence of a formal access to information request.
Harvey's report made three recommendations:
- That the city acknowledge that its actions were an unreasonable invasion of privacy;
- That the city review its current respectful workplace policy to ensure that it reflects the principles of confidentiality and privacy legislation;
- Privacy training for members of council.
By law, Mount Pearl council now has 10 business days to reply.
The city declined comment late Friday, noting that it had just received the report.
Kent was on paid leave for nearly nine months.
He quit in late June before council could vote to fire him for allegedly violating the city's code of conduct, for reasons outside the harassment probe.
Kent is suing Mount Pearl for constructive dismissal and breach of privacy.
That matter remains before the courts.