A New Danger of Disclosing Staff Information

Councillor Fined for Leaking Confidential Report: A New Danger of Disclosing Staff Information

In a groundbreaking decision released yesterday, a sitting councillor was convicted in BC Provincial Court of an offence under the Freedom of Information and Protection of Privacy Act, for “leaking” a report about a staff issue provided to council in an in camera meeting. The councillor was fined $750. He has indicated that he intends to appeal. If the decision stands, however, it may have significant repercussions for local governments and officials dealing with confidential information and in particular, personal information of staff. Although the decision involved an elected official, the decision may affect anybody who discloses personal information.

Under section 30.4 of the Freedom of Information and Protection of Privacy Act, an officer of a public body who has access to personal information in the custody or control of the public body, must not disclose that information except as authorized under the Act. A person convicted under the Act faces fines of up to $2,000. In the case, council received a report on a staff issue at an in camera meeting. The report identified the staff persons involved and described the conduct at issue. The councillor subsequently provided a copy of the report to the CBC, which published the report on its website. The councillor was charged under section 30.4 of the Act.

At trial, the councillor admitted that he leaked the report to the CBC. He unsuccessfully raised several defences; one was that he was protected from prosecution as a whistleblower. The court held that the defence was not available in the “quasi-judicial” proceeding before the court, but even if it was available, the councillor did not prove he was forced to leak the report to expose an illegal act or to protect anyone’s life, health or safety.

A charge under the Act is a drastic method of handling leaks of personal information. The local government may not have control over whether a charge will be made or proceed. There is also a cost to the local government, in terms of staff time and the effect of publicity within the area. In addition, a charge is an “after the fact” remedy, occurring after the real damage (the disclosure of the information and the harm to the in camera process) has occurred. However, the possibility of a charge and conviction may have a deterrent effect.

There are also other tools available to local governments to handle leaks by elected officials, although there are weaknesses to each. Under section 117 of the Community Charter, all elected officials owe a duty to keep in confidence any confidential information and information considered at in camera meetings. If an elected official acts in breach of the section, the local government may seek damages for losses suffered. The local government may also seek an injunction to prevent publication of the leaked information. In City of Coquitlam v. Lower Mainland Publishing Group Inc. (July 21, 2006), Action No. S064695, Vancouver Registry (BCSC), the City obtained an injunction to prevent a newspaper publishing a privileged and confidential document presented at an in camera meeting. To be successful, however, the local government must act quickly on hearing of the leak. For instance, in the City of Coquitlam case, the City was in court within six hours of becoming aware that the newspaper had received the document.

Local governments, therefore, should choose the remedy most likely to preserve the integrity of the in camera process and the confidentiality of the information, and deter potential leaks, while minimising the costs to the taxpayer.

Gwendoline Allison
Valkyrie Law Group LLP
604.926.6681
gallison@valkyrielaw.com

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