Report finds that City of Nanaimo and councillor violated privacy laws

Office of the Information and Privacy Commissioner releases report about City of Nanaimo breaches

Confidential and private information belonging to the City of Nanaimo was leaked, but the sources of some of those leaks remain unknown.

The Office of the Information and Privacy for British Columbia released a report today, Aug. 2, looking into three breaches at the municipality.

One of those leaks came from a city councillor, the report found.

A privacy breach investigation conducted by Michael McEvoy, commissioner for OIPC, determined that on three separate occasions, City of Nanaimo documents containing personal information were improperly released to the public.

The report failed to determine who the source of two of the leaks were, but McEvoy determined that a city councillor who is the administrator for a Facebook group was responsible for leaking two letters from a law firm in December 2015.

McEvoy has ordered the councillor to remove the posting immediately or face the possibility of the city having to obtain an enforcement order from the Supreme Court of British Columbia.

“I told him right off the bat I had posted it and I have no qualms about having posted it…” said Coun. Gord Fuller, who runs the Facebook group Gord Fuller Municipally (A)Musing. “When I got it by e-mail, it did not say anything about it being involved in any in-camera information.”

He has already removed the letters from his page, but they were re-posted there by another Facebook user, and Fuller said as it stands now he doesn’t plan to remove that user’s post.

“Not at this point … It would be easy for me to remove it, but it’s everywhere,” he said. “It’s public knowledge now. So the reality is, what is the point? Is it just to make a statement, to remove it or not remove it? What’s the point?”

The privacy commissioner’s investigation looked into the leaks of the Goldner report on workplace behaviour and the consulting group e-mail found on a windshield, but could not determine the source of those leaks.

Fuller indicated he didn’t necessarily expect the investigation to come up with those answers.

“Did they try and do everything they could? I think that’s their job, so one would hope they did,” he said. “There were a lot of leaks in the city. It was non-stop. And if I put something out there, I’ll readily admit to it. If I didn’t do it, I’m not going to admit to it.”

McEvoy’s report concludes by stating that a number of city senior staffers and councillors “lack a basic understanding of their privacy obligations” under the Freedom of Information and Protection of Privacy Act.

“The city needs to remedy this to prevent future abuse,” McEvoy’s report reads.

While McEvoy praises city clerk Sheila Gurrie and “other city staff” for co-operating with his investigation, he recommends the city take “immediate steps to implement a privacy management program” that will meet all “obligations under FIPPA.” His report also states that his office will be following up with the city’s implementation of such a program by November.

Gurrie, the city’s freedom of information head, released a statement noting that the City of Nanaimo welcomes the report and respects its findings.

“We will be implementing the recommendations as soon as practicable,” her statement reads. “Training will include all members of mayor and council and will include rigorous training for the incoming council and senior staff as well. During the course of this investigation and over the past year, we have significantly increased our staff education with respect to the protection of privacy and will continue to do so, as recommended.”

Speaking to the News Bulletin, McEvoy said the investigation began under the former commissioner late last year and involved a “considerable” amount of work, which included interviewing 11 witnesses under oath. McEvoy described Nanaimo’s situation as extraordinary, unusual and concerning, particularly because senior city staffers were the ones accused of leaking various information.

“It was apparent, pretty much from the beginning from the reports, that senior members from the government itself, potentially, were involved in some of these unauthorized disclosures. So, that was the reason we got involved … that is not a usual thing that we would be doing,” he said.

While there were accusations, there wasn’t enough concrete evidence to determine the true source of the leaked Goldner Report or the Integrity Group e-mails, according to McEvoy.

“In order for us to advance a case, for example if there is going to be a prosecution, we need really solid evidence and that is what my investigators seek to get and if falls short of that, then that is obviously something that we can’t advance,” he said. “We did get evidence under oath from a number of people, to the extent that it was possible. We followed up on some of those matters. We looked at documentation, we looked at other things to see whether or not we could determine the source, but the evidence was not there to sustain any kind of prosecution.”

McEvoy said what was clear to his investigators was that there was animosity between members of council and senior staff. He said the most troubling aspect of the entire situation was the lack of understanding by a number of elected officials and public officials about their obligations and duty to protect private and confidential information.

“Public officials come into this information in the first place, not because of who they are as individuals, but because they are representatives and entrusted by the public. So, they have an equal responsibility to treat that information, not just respectfully but treat it in compliance with the law,” he said. “I think that lack of understanding of what those obligations are was the most troubling thing.”

When asked what he thought about Fuller’s intention not to remove the Facebook posts, McEvoy did not answer, but did say the city will get to determine how much time Fuller has before legal action is taken.

Nanaimo Mayor Bill McKay said he was satisfied with McEvoy’s report, and was not expecting the investigation to determine the source of the majority of leaks. McKay said while he and Coun. Diane Brennan received a copy of the Goldner Report before council did, as they were the respondents, he didn’t leak it and has no idea who did.

“I took extraordinary steps to ensure it was with me at all times. In other words, I never left it out on my desk, I never left it for anyone to conveniently view. It was always with me,” said McKay.

He added that he’d like the report to be released to the public.

-with files from Greg Sakaki/The News Bulletin

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