Annual Report: 2002-2003

Background

As part of a settlement of a dispute with the Canadian Space Agency concerning his termination of employment, an individual agreed not to make future access (or privacy) requests relating to his employment with the Canadian Space Agency. Later, the individual asked the Information Commissioner to determine whether or not the settlement agreement could legally extinguish his right to make access requests relating to his employment with the Canadian Space Agency.

Legal Issue

What is the legal effect of a term in a private contract wherein one of the parties agrees to limit his or her use of the Access to Information Act?

In considering this issue, the commissioner noted that the settlement agreement does not purport to impose obligations on government institutions (not to receive and process access requests) or upon the Information Commissioner (not to accept and investigate complaints). Rather, the settlement agreement records an undertaking by one of the parties to a limited constraint on exercising his right of access.

Thus, in these circumstances, the commissioner concluded that the settlement agreement did not contravene any provision of the Access to Information Act. With respect to the consequences for the individual should he decide to make access requests in contravention of his agreement, the commissioner concluded that he is not the appropriate body to make a determination as to whether or not the agreement might be invalid for other reasons, such as duress.

Lessons Learned

Employees involved in labour-management disputes often make access requests to the department with which they are (or were) employed. From time to time, as part of settlement agreements, the Crown will ask the employee to promise not to make further access requests concerning the dispute and, from time to time, employees agree to so promise. There is nothing in the Access to Information Act or public policy to prevent such agreement provided the agreements are not void for one or more of the many other reasons (mistake, vagueness, duress, inequity, previous breach by the other party, for example) which may invalidate a contract.