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Who Received Performance Bonuses?

Background

A representative of an employee association asked the National Research Council of Canada (NRC) for a list of the 1093 individuals who received performance bonuses in 2000. The requester did not seek the performance rating of any person nor the amount of the bonus received by any individual. In response, NRC refused to disclose the requested information on the basis that such information is "personal information" which qualifies for exemption under subsection 19(1) of the Access to Information Act.

The requester complained to the Information Commissioner arguing that, unless there is some transparency in the awarding of performance bonuses, there is the potential for abuse and misapplication of the program. The complainant pointed out that NRC had previously disclosed names of persons who had received awards under the department's internal awards program, awards based on criteria substantially the same as the criteria used to award performance bonuses.

Legal Issues

This complaint required the Information Commissioner to consider the following issues:

1) Does the list of recipients of performance bonuses constitute "personal information" as defined in section 3 of the Privacy Act? In particular, does a performance bonus constitute a discretionary benefit of a financial nature? If so, paragraph 3(l) of the Privacy Act removes such information from the definition of "personal information".

2) Even if the withheld information is "personal information", do any of the provisions of subsection 19(2) of the Access to Information Act authorize disclosure?

With respect to issue #1, the investigation revealed that performance bonuses were based on two criteria. First, all employees who received a performance rating of "outstanding" or "superior" qualified for a performance bonus. Second, certain employees who did not receive one of those two performance ratings could still qualify for a bonus based on team accomplishments which have contributed to the success of NRC. Performance bonuses in this second category were determined subjectively by senior managers based on the recommendations of an awards committee.

Given these facts, the commissioner determined that the employees who received bonuses for individual or team accomplishments, rather than based on performance ratings, had received a "discretionary benefit of a financial nature". On the other hand, the commissioner concluded that those who had received a performance bonus based on their performance rating received an "entitlement" under the performance bonus policy rather than a "discretionary benefit". Consequently, the names of entitled recipients were "personal information" while the names of discretionary recipients were not.

With respect to issue #2 (the applicability of subsection 19(2) of the Access to Information Act), the investigation determined that, prior to the formal access request, NRC had released the names of some of the performance bonus recipients to the requester. The disclosures were made based on the fact that some recipients had given consent for disclosure in response to a number of vaguely worded communications from management which did not clearly explain to employees the purpose of consent nor the employees' options.

The commissioner concluded that the previous consents did not extend to a request under the Access to Information Act, the consents had been limited and the disclosures were made informally and not to the public at large. Similarly, the commissioner concluded that the names previously disclosed could not be considered as "publicly available" because the disclosure was entirely internal to the NRC.

In the end, the commissioner recommended disclosure of the names of the individuals who had received performance bonuses based on individual or group accomplishments (discretionary benefits). The commissioner also took the view that disclosure of this list would provide adequate transparency to allow the employee association to assess the fairness of the program. NRC agreed and accepted the commissioner's recommendation.

Lessons Learned

When subjective criteria become part of a performance bonus program, the awards given thereunder constitute "discretionary benefits of a financial nature" and, hence, cease being protectible personal information.