Annual Report: 2003-2004

5. You Can Waive Your Rights

Background

A former employee of the Canadian Space Agency entered into an out-of-court "settlement agreement" with the employer which contained a clause wherein the former employee agreed not to make access requests in the future in respect of his employment with the Canadian Space Agency. Some seven months after the agreement was signed, the former employee asked the Information Commissioner to review the appropriateness of the portion of the agreement preventing future access requests relating to employment issues. The former employee alleged that his agreement had been obtained under duress and that his rights under the Access Act should take precedence over any private agreement.

Legal Issue

May a person’s rights under the Access to Information Act be removed or modified by private agreement between the Crown and an individual? That was the issue before the commissioner in this case. The Space Agency argued that the "no more requests" clause was limited (to matters of employment) and reasonable in the circumstances of a mutual agreement to end an employment relationship. It pointed out that the agreement had been signed by the former employee’s authorized union representative and endorsed in writing by the former employee.

The commissioner concluded that the "no more requests" clause did not contravene any provision of the Access to Information Act. He pointed out that the clause does not prevent government institutions from receiving access requests--indeed, they would be required to process any such request. However, the commissioner pointed out that, were the former employee to make access requests to his former employer about his former employment, he might face repercussions from the Crown for breach of contract. In such a circumstance, it would be open to the former employee to raise the issue of duress in his defence. The commissioner declined to express any view as to whether or not duress was a factor in this case.

Lessons Learned

Individuals may, by private contract, waive their rights to make access requests or complaints to the Information Commissioner. While the commissioner would be concerned if it were to become a standard practice for the Crown to insist on such clauses in employee-employer settlements, such clauses do not contravene the Access to Information Act.