Articles of Interest
Disclosure of Information under subsection 31(4) of the RCMP Act
by Suzan
Appleby, Case Review Officer
June 2000
Members who submit grievances bear the burden of showing that their grievances are justified and that the redress they seek should be granted. Accomplishing this often requires more supporting information than that initially in their possession. An important tool in acquiring more information in support of the grievance is subsection 31(4) of the RCMP Act. Subsection 31(4) allows members who present grievances to be granted access to such "written or documentary information under the control of the Force and relevant to the grievance as the member reasonably requires to properly present it."
This provision generously affords members the right to a type of free disclosure of written or documentary information relevant to the grievance. The following article will attempt to clarify members' entitlement to information under subsection 31(4).
Interpretation of subsection 31(4)
Disclosure allows a grievor to know the basis for the decision being grieved as well all information relevant to the issue decided. It permits the parties to address the issues based on complete information about the case. This generally results in better, more informed, decisions.
In order to ensure that grievors receive the minimum amount of information they are entitled to under subsection 31(4), the Commissioner's Standing Orders (Grievances), 1990 (the "CSO's"), set out in Administration Manual ("AM") II.20.C., specify the type of information that members must receive during the grievance process, without a request being made, as well as information that they are prohibited from receiving.
CSO 7(1) mandates that grievors be provided with the reasons for the decision, act or omission being grieved, and all documentation that will be considered by the Grievance Advisory Board as well as its report. They must also be provided with any additional documentation that will be considered by the Level I or Level II adjudicator, as the case may be.
However, in many cases, there may be information other than that required to be provided under CSO 7(1) that should be given to the member because it is relevant to the grievance, under the Force's control and is reasonably required to properly present the grievance. Sometimes, the Force will furnish it without a request being made. However, to ensure that the information is provided, the member should request it from the Force, in writing, when presenting the grievance or within a reasonable time thereafter. Space is provided for these requests in Part F of the grievance presentation form (form 3081).
The entitlement to information under subsection 31(4) is not absolute. The information must be: 1) under the Force's control, 2) relevant to the grievance, and 3) reasonably required to properly present the grievance.
1. Under the control of the Force
In order for information to fall within the parameters of subsection 31(4), it must first be determined to be "under the control of the Force". Previous Committee findings which addressed the issue have indicated that the phrase should be interpreted quite broadly.
For example, in ERC 3300-91-004 (G-54), documentation relating to the language requirements of a staffing action and to the establishment of a unit bilingual component for the member's branch was recognized by the Committee to be within the Force's control. In ERC 3200-03-003 (G-121), the Committee found that witness statements made during an investigation into a harassment complaint were under the Force's control.
In ERC 3300-93-0014 (G-125), a CSO was considered by the Committee to be under the Force's control as was correspondence within the Force confirming a division-wide practice concerning medical examinations, the medical profile criteria for non-operational members of a certain directorate and the grievor's previous medical profiles and medical examination results. However, the various statutory materials and copies of certain Government policies were found not to be information under the Force's control, but rather, public documents, obtainable elsewhere, such as from public libraries.
Two specific investigation files concerning an incident involving the grievor were considered to be within the Force's control in ERC 3200-95-001 (G-147) and previous favourable decisions to give members compensation under the Home Equity Assistance Plan were likewise found to be within the Force's control in ERC 3200-99-001 (G-242).
Therefore, to be under the Force's control, information should originate from within the Force or, if it originates from outside sources, it should be in the Force's possession. If the requested information is not under the control of the Force, there is no obligation to provide it.
2. Relevant to the grievance
The information must also be "relevant to the grievance". Information is relevant to the grievance if it is linked to the subject of the grievance or to the facts raised by the member in support of his or her grievance and if it assists the member in proving his or her case.
Although it is preferable that members provide sufficient particulars of the desired information to allow the Force to determine whether the information is under its control and relevant to the grievance, it is recognized that members may not be in a position to provide a lot of detail about the requested information. Members may not be aware of the exact nature and content of the information that was used by the Force in making the decision being grieved. For example, in G-147, the Committee found that the grievor's reference in his subsection 31(4) request to an incident that had been mentioned in his performance appraisal and to specific investigation files about the incident, was sufficient to show that the files in question were relevant to the grievance against the performance appraisal. The Committee observed that it would have been practically impossible for the grievor to supply any more details as he did not know the specific content of the files.
In addition, notwithstanding its obligation under subsection 31(4), the Force may assert solicitor-client privilege with respect to legal opinions that are relevant to grievances. However, where the decision being grieved is based solely on a legal opinion which the Force does not want to disclose, the Force should at least furnish detailed reasons for the decision to the member (see ERC 2200-98-002 (G-234)).
It should be noted that the fact that information was not considered in making the decision being grieved does not necessarily mean that the information is irrelevant to the grievance. For example, in ERC 2700-99-002 (G-247), the Committee observed that the material to which a member is entitled under subsection 31(4) of the RCMP Act "is not limited to what the Appropriate Officer considered" in making the decision. It stated that information may be relevant to a grievance "if it provides an indication that the decision taken was not appropriate, such as if an applicable policy was not considered...How previous cases were decided is also relevant because the Force has an obligation, arising out a general duty of fairness, to treat like situations in like fashion".
3. Reasonably necessary to properly present the grievance
Generally, this aspect of subsection 31(4) is part of the relevancy issue. If the information requested is relevant to the grievance, it normally would be reasonably required to properly present the grievance. It is conceivable, however, that there may be relevant information under the Force's control that is not reasonably necessary for the presentation of the grievance, for example where the Force does not contest the particular fact or issue for which the information is requested.
Obligation of the Force
In a November 1992 special edition of the Pony Express entitled "Grievance Presentation Guide", reference in an article directed to Appropriate Officers was made to the obligation of the Force to provide relevant information to aggrieved members. In G-147, this reference was cited with approval by the Committee, which indicated that although it was not a formal policy, like that contained in the Administration Manual, "the article was meant to be a message within the RCMP that, in the grievance context, the Force should be liberal in its sharing of information with its members".
The article observed that lack of management response to requests for relevant information by members may negatively impact on the credibility of the grievance system and may cause an increase in grievances. The article stated:
...Grievors have a legislated right to such information. Policy only recognizes two exceptions. It is not sufficient to cite third-party information or the Privacy Act, etc. Efforts must be made to provide all relevant information by memorandum or other means. The system is based on documentary evidence. The onus is on the Force to produce records in its possession. ...
These principles are equally applicable today. Every effort should be made to respond to a grievor's request within a reasonable time and, if necessary, to work with the member to narrow down the request to relevant information under the Force's control. If the Force decides not to provide access to the information needed by the member, it should provide the basis for its decision.
Since the Force is obliged only to provide the member with "access" to the information, it does not necessarily have to furnish copies. There may be cases where the information originates from an outside source, is publicly available, and the Force knows that the member can obtain it within a reasonable time, free of charge, simply by requesting it from the other source. In that event, providing the member with the information to enable him or her to so access the information will normally suffice to comply with the Force's obligation under subsection 31(4).
It should be noted that decision by the Force not to provide the information requested pursuant to subsection 31(4) constitutes a separate grievable decision.
Interaction with the Access to Information Act
While members are free to use the Access to Information Act to acquire information from the Force, subsection 31(4) is the principal means for a grievor to obtain relevant information to support a grievance. Therefore, members who have requested information under subsection 31(4) should not be advised to use the Access to Information Act procedures to access that information unless the Force explains why it believes that the information is not under its control, is irrelevant or not reasonably necessary to properly present the grievance.
Interaction with the Privacy Act
Sometimes, the Force declines to release requested information on the ground that it contains personal references to other individuals and its release would violate the Privacy Act. The Privacy Act prohibits disclosure of personal information about other individuals unless: the individual consents to the disclosure; the disclosure is for the purpose for which the information was obtained or compiled by the government institution; or is for a use consistent with that purpose.
However, the Committee has previously indicated, in G-121, that where the information is relevant to the grievance but includes personal references about other named individuals, the Force should nevertheless make every effort to ensure that the grievor receives some information. The Force should either seek and obtain the consent of the other person(s) to disclosure or if, unsuccessful, should provide a depersonalized version of the material requested. Alternatively, where the grievance is directly related to the purpose for which the information was collected, the Force could release it, in an unvetted form, through the "consistent use" exception in the Privacy Act. For example, in G-121, the Committee found that witness statements taken during a harassment investigation were highly relevant to a grievance alleging harassment against the member investigated, and that their release to the grievor would be for a purpose consistent with that for which the statements were taken.
Framing request under subsection 31(4)
In making requests for information pursuant to subsection 31(4), members should try to:
- identify the desired information as specifically as possible in order to allow the Force to ascertain whether the information exists and is under its control;
- explain why the information is relevant to the grievance in terms of showing a relationship or connection between the information and the subject of the grievance or a contested fact or interpretation of facts; and
- indicate the purpose for which the information is desired in terms of how it might support the member's version of the facts or the development of the member's arguments.
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