Checking Additional References Without Consent When Hiring New Employees Contrary to FIPPA

The Office of Information and Privacy Commissioner (“OIPC”) recently published a guidance document and issued an Order which set out limits to how public bodies collect and check references for job applicants. The OIPC has made it clear that checking additional references, without the knowledge or consent of the job applicant, is contrary to the Freedom of Information and Protection of Privacy Act ("FIPPA").

Section 26 of FIPPA allows public bodies to collect personal information that “relates directly to and is necessary for a program or activity of the public body”. However, section 27 of FIPPA requires a public body to collect personal information directly from the individual the information is about, unless indirect collection is authorized by one of the provisions in section 27(1). Although section 27(1)(f) permits indirect collection of personal information if it is necessary for the purposes of “managing or terminating” an employment relationship between a public body and the employee, there is no language to permit indirect collection of personal information in the context of hiring new employees. Therefore, indirect collection of personal information for the purpose of a reference check requires consent of the job applicant under section 27(1)(a)(i).

On a practical note, if a public body determines that a job applicant’s choice of references is inadequate for a proper assessment of past performance, it should ask the applicant to supply additional references or seek the applicant’s consent to collect personal information from specific individuals that it deems necessary. In doing so, the public body is giving an opportunity to the applicant to clarify or amend their choice of references, and agree or disagree to the collection of personal information from other individuals. If the applicant refuses to provide suitable references upon request, the public body can take the applicant’s refusal into account in its hiring decision.

Maria Kim