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 organization, 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 dispute.
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 are underfunded;
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.