The Alberta Human Rights Commission must reconsider its decision to withhold parts of an older strategic report, disclose information not protected by access exceptions and search again for a project-tracking document, an Alberta privacy adjudicator has ruled.
In Order FOIP2026-32, dated October 21, 2026, adjudicator Teresa Cunningham found that the commission relied on irrelevant considerations when exercising its discretion to withhold advice. It also failed to establish that its search for the requested tracking document was reasonable.
The order does not require release of an entire employment-investigation report sought by the same applicant. Cunningham required the commission to withhold third-party information in that report, while directing it to make a fresh privacy decision about information the applicant had supplied to the investigator.
Advice protection is not a shield against misunderstanding
The strategic report was dated September 9, 2020. The commission said it was prepared at an early stage, that the contractor ended the work before the project was complete and that there was no direct connection between its recommendations and the plans ultimately implemented. It argued that releasing the unfinished material would produce misinformation.
Cunningham separated two questions: whether information qualified for the advice exception in section 24 of the Freedom of Information and Protection of Privacy Act, and whether the commission had properly exercised its discretion to withhold information that did qualify. Meeting the exception’s terms did not end the analysis.
Her passage-by-passage review found that some recommendations and related analysis qualified as advice, including material about education, communications and complaint-handling initiatives. Other passages merely described the paper’s purpose, identified topics or supplied factual information. Those did not become protected advice simply because they appeared in the same report.
The commission also relied on protection for plans that had not been implemented. Cunningham distinguished an adopted course of action awaiting implementation from preliminary possibilities. She found no such adopted but unimplemented plans in the report, and noted that the commission’s own account stressed the absence of a direct connection between the report and its eventual decisions.
For the advice that did qualify, the commission still had to connect its withholding decision to the exception’s purpose. Section 24 protects the ability to obtain advice and debate policy without interference; it does not exist to protect the public from information an institution considers misleading. Cunningham rejected the commission’s reliance on possible misunderstanding, noting that there was no evidence about the information’s accuracy.
Nor did saying the report was confidential resolve the issue. The commission had not shown how disclosure would interfere with its decision-making processes. It had also failed to consider the information’s age and continuing relevance. Once irrelevant considerations were removed, Cunningham said the considerations favouring disclosure appeared to outweigh those against it.
She nevertheless ordered reconsideration, rather than automatic disclosure of all the advice. If the commission again refuses access, it must demonstrate that it considered relevant factors and explain how withholding each piece serves section 24’s purpose despite the information’s age.
File counts were not established to be personal evaluations
The commission also withheld information about other employees under section 19, which concerns confidential evaluative or opinion material compiled to assess an applicant’s suitability, eligibility or qualifications for employment, contracts or other benefits. Cunningham found that the provision could not be used to withhold evaluations of people other than the applicant.
There was a further evidentiary problem. The commission described a chart of file counts and distribution as showing employee performance and timeliness, but did not explain how it was used. The chart did not show when files were received, their complexity or the suitability of outcomes. Cunningham could not conclude that it supported accurate inferences about employee performance.
In her separate privacy analysis, she found no demonstrated personal dimension to the statistics, despite the inclusion of employee initials. She also ordered disclosure of a report author’s contact email because the author appeared to be acting in a professional or representative role and no personal dimension was established. These were findings about the records and evidence before her, not a rule that all employee statistics or contact details must be released.
A general search description was not enough
The missing record was a Case Inventory Resolution Project tracking document. The commission said it had supplied a file-count document as its best understanding of the request and had conducted a second search without finding anything further. It described its usual process of contacting three internal units and searching different kinds of records.
The applicant provided more specific evidence: a spreadsheet had been maintained in SharePoint, and employees responsible for it could help identify its location. Cunningham found that the commission had not adequately explained who searched, which repositories were searched, what the searches found or why the requested document could not be located. Describing general practices did not establish what had happened in this particular search.
The new search must include SharePoint and consultation with employees who were responsible for updating the document. If the commission cannot locate it, it must account to both the applicant and the adjudicator for the steps taken and explain why it believes the record cannot be produced. The order does not establish whether the document can still be located.
Employment-investigation privacy remains protected
The commission had initially treated some information as outside the request rather than applying a statutory exception. Cunningham explained that the scope of a request must be clear: information within expressly requested records cannot simply be withheld as non-responsive where the real issue is third-party privacy. Ambiguity about what the applicant wanted called for clarification.
Applying section 17, she found that the investigation report contained personal information about other employees, including employment-history information. The resulting presumption that disclosure would unreasonably invade their privacy had not been rebutted. That information must remain withheld.
The applicant’s own statement required a different analysis. It included information about a third party who was not the subject of the investigation. The fact that the applicant had supplied the information was a statutory factor favouring disclosure, but it was unclear whether the commission had considered it or why access had been refused.
Cunningham directed the commission to make a new decision on that statement, considering the applicant’s role as its source and any other relevant privacy factors. She did not order its unconditional release. The access ruling does not decide the merits of the underlying workplace allegations or establish a human-rights violation.
The final directions therefore require several distinct steps: preserve the protected third-party investigation information, reassess the applicant-supplied statement, reconsider withholding the qualifying advice, disclose all other information in the records and conduct the specified new search.
The commission must notify the adjudicator in writing, within 50 days of receiving a copy of the order, that it has complied. That period runs from receipt, not simply from the October 21 decision date. The order itself does not establish that disclosure, a new search or the required reconsiderations have since occurred.
