2018 BCSC 1981 British Columbia (Attorney General) v. Fuller

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	British Columbia (Attorney General) v. Fuller,
	2018 BCSC 1981

Date: 20181113

Docket: 85562

Registry: Nanaimo

Between:

Attorney General of British Columbia

Petitioner

And

Gordon Fuller, Tim McGrath, Matthew O’Donnell,

also known as Matt Hensock, and Terry Lee Wagar

Respondents

Before: The Honourable Mr. Justice Thompson

Reasons for Judgment

Counsel for the Petitioner:

M. Rankin

K. McKinnon

Respondents, appearing in person:

No other appearances

G. Fuller
T. McGrath

Place and Date of Hearing:

Nanaimo, B.C.

November 7, 2018

Place and Date of Judgment:

Nanaimo, B.C.

November 13, 2018

[1] The Attorney General of British Columbia petitions for orders under s. 73.2 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 [FIPPA], that certain personal information be returned by the respondents to the designated head of privacy at the City of Nanaimo (the “City”), and ancillary orders.

[2] The respondent Gordon Fuller was a City councillor when he came into possession of the information. The respondent Tim McGrath is a Nanaimo citizen who I gather has a keen interest in civic politics. The respondent Matthew O’Donnell did not file a response to the petition; the respondent Terry Lee Wagar entered into a consent arrangement with the petitioner.

[3] Writing for the Court in R. v. Skakun, 2014 BCCA 223, Madam Justice Smith opened her judgment as follows: “In an open and democratic society, protection of personal information in the control of public bodies is an essential counterbalance to the right of access to information from public bodies.” The City is a “public body” that is obligated to protect “personal information” in its custody or under its control (s. 30, FIPPA). Employees, officers and directors of public bodies must not disclose personal information except as specifically authorized (ss. 30, 33, 33.1, 33.2, 33.3, FIPPA). “Personal information” means recorded information (other than business contact information) about an identifiable individual (Schedule 1, FIPPA).

[4] The City possesses documents containing personal information: a March 2015 email written by then Mayor McKay to a consultant, and two December 2015 letters written by a lawyer to the City of Nanaimo. There is no suggestion that disclosure of the personal information was authorized under FIPPA. However, the evidence establishes that these documents, or digital copies, came into the possession of the respondents — who have in turn published them on social media and otherwise caused the personal information to be circulated.

[5] The 2011 amendments to FIPPA included the addition of provisions respecting the recovery and return of personal information in the possession of those not authorized by law to possess it:

Recovery of personal information

73.1 (1) If the head of a public body has reasonable grounds to believe that personal information in the custody or under the control of the public body is in the possession of a person or an entity not authorized by law to possess the information, the head of the public body may issue a written notice demanding that person or entity to do either of the following within 20 calendar days of receiving the notice:

(a) return the information to the public body or, in the case of electronic records, securely destroy the information and confirm in writing the date and the means by which the information was securely destroyed;

(b) respond in writing and declare why the person or entity considers that

(i) the information was not in the custody or under the control of the public body when the person or entity acquired possession of the information, or

(ii) the person or entity is authorized by law to possess the information.

(2) The written notice referred to in subsection (1) must

(a) identify, with reasonable specificity, the personal information claimed to be in the custody or under the control of the public body and in the possession of the person or entity not authorized by law to possess the information, and

(b) state that the public body may undertake legal action to recover the personal information if the person or entity fails to respond in writing within the required time or does not adequately demonstrate that

(i) the information was not in the custody or under the control of the public body when the person or entity acquired possession of the information, or

(ii) the person or entity is authorized by law to possess the information.

Court order for return of personal information

73.2 (1) If a person or an entity that receives a written notice and demand from the public body under section 73.1 (1) fails to

(a) return the described personal information or, in the case of electronic records, to securely destroy the information and confirm in writing the date and the means by which the information was securely destroyed,

(b) respond to the notice and demand within the required time, or

(i) the personal information was not in the custody or under the control of the public body when the person or entity acquired possession of the information, or

(ii) the person or entity is authorized by law to possess the personal information,

the head of the public body may ask the Attorney General to petition the superior court in the jurisdiction in which the personal information is located for an order requiring the return of the personal information.

(2) If, after a hearing, the court determines that the personal information is in the possession of a person or an entity not authorized by law to possess the personal information and the public body is entitled to custody or control of the personal information, the court must order the personal information to be delivered to the head of the public body.

(3) The court may issue any order necessary to protect the personal information from destruction, alteration or transfer by the person or entity in possession of the personal information and may order that the personal information be surrendered into the custody of the head of the public body until the court reaches a decision on the petition.

(4) This section does not limit any remedy otherwise available to a public body, or other person by law.

[6] It follows from these provisions that before a s. 73.2 order may be made, the petitioner must establish the following:

1) the material in question must be “personal information”;

2) the personal information must be “in the custody or under the control” of a “public body”;

3) the personal information must be in the possession of a person or entity “not authorized by law” to possess it;

4) a demand in writing for the return of the personal information (or destruction in the case of electronic records) must be issued; and

5) the recipient of the demand for return or destruction must fail to comply adequately.

[7] The petitioner submits that the respondents have, without authorization, come into possession of the personal information in the email and lawyer’s letters. They have published that information. They have refused to comply with valid demands by the City to recover this material. The petitioner submits that the conditions for issuing a s. 73.2(2) order are met — and, once these conditions are established, the order is mandatory.

[8] Mr. Fuller advances an argument that the former mayor’s email is not “confidential information” and therefore is not exempt from disclosure. With reference to the lawyer’s letters, he argues that they are “not of a private nature” and relies on what was said in that respect by Mr. Justice Baird in his reasons for declining to make an interlocutory injunction order in relation to the letters.

[9] Mr. Fuller and Mr. McGrath each argue that many others possess the documents, including a prominent media outlet, and that they have been selectively and improperly targeted by this petition filed in September 2018, shortly before the municipal election. They also submit that the personal information in their possession is no longer in the custody or control of the City.

[10] Mr. McGrath submits that the petitioner has not proved that the personal information leaked from the City. He also submits that the mayor’s email has not been shown to be sufficiently connected to his role with the City — in this regard, Mr. McGrath points to newspaper articles that say that the City is defending a lawsuit being brought by the consultant that the mayor wrote to, and that in this lawsuit the City is taking the position that there was no contract.

[11] I conclude that the petitioner is entitled to the orders sought. I will address the respondents’ arguments in the course of discussing each of the necessary conditions for making an order under s. 73.2, FIPPA.

Does the Material Contain “Personal Information”?

[12] The broad definition of “personal information” in FIPPA leaves no room for argument that the email and the letters contain such information. The submissions that the email was not written in confidence and that the lawyer’s letters were not private in nature do not have merit at this stage of this proceeding. These confidentiality arguments may be relevant in the context of a freedom of information request made to the public body, or at an Office of the Information and Privacy Commissioner hearing reviewing a public body’s refusal to disclose, or at a judicial review from an OIPC decision in that respect.

[13] Whether the information is of a private nature may also be important in the context of an interlocutory injunction application. In this case, the petitioner sought an interlocutory order enjoining distribution or publication of the information. In making the order sought in relation to the email, Baird J. concluded that the email was a “serious trespass against the privacy and dignity of a number of people referred to in it”. In dismissing the application in relation to the lawyer’s letters, he held that these documents were not of a private nature. While the degree of the ongoing privacy invasion may well have been a legitimate factor for consideration on the interlocutory injunction application, I conclude that it does not properly enter into the analysis of ss. 73.1 and 73.2, FIPPA. Whether documents record private, personal, confidential or embarrassing information, on the one hand, or anodyne and perfectly mundane on the other, if information is recorded about identifiable individuals then the documents contain “personal information.” The email and the lawyer’s letters contain such information.

Is the Personal Information in the Custody or Under the Control of the City?

[14] The City possesses the email and the letters. The fact that the respondents have a copy of these documents does not detract from the City’s custody of the documents and the personal information contained in them. I think it likely that the City was the source of the leak of this personal information, but I am not sure it matters. The City is a custodian of this personal information, and its privacy head had reasonable grounds to believe that it was in the possession of persons not authorized by law to possess it. In those circumstances, she was permitted to issue the s. 73.1 notices.

[15] I turn to Mr. McGrath’s submission that the email has not been shown to be a document in the custody of a public body. It does not assist the respondents if, in other litigation, the City is taking the position against the consultant that received the mayor’s email that there was no contract in place between the consultant and the City. It cannot be seriously suggested that the mayor was acting outside the bounds of his mayoral duties when writing the email. The email’s subject is City governance. It was clearly written by Mr. McKay in his capacity as mayor.

Is the Personal Information in the Possession of Persons Not Authorized by Law to Possess It?

[16] This is not in issue. The evidence establishes possession, and no argument was advanced that possession was authorized. As Mr. Rankin submits, the question of whether some or all of this personal information might properly be disclosed on a FIPPA request to the public body is a separate question that is not before me.

Were Demands for Return or Destruction Issued?

[17] This is not in issue. Sheila Gurrie, designated as the City’s “head” for freedom of information purposes under s. 77, FIPPA, issued the s. 73.1 notices.

Have the Respondents Failed to Comply Adequately with the Demands?

[18] Again, this is not in issue. I am satisfied that this requirement is established.

[19] Before addressing the remedy sought by the petitioner, it remains to deal with the suggestion that the City instigated this petition for improper purposes, and selectively targeted the respondents. (I interpret these arguments as submissions that the petition is an abuse of process, or other extraordinary circumstance that might justify not making the order sought even though the statutory requirements are satisfied.)

[20] I am not satisfied that there is any merit in these complaints. Ms. Gurrie made a series of reports about the personal information disclosures to the OIPC, the first of which was on 22 November 2016. The OIPC conducted an investigation, including a series of interviews under oath of City employees and councillors. The OIPC report issued a seven-page report on 2 August 2018. In the course of that report, the Commissioner commended Ms. Gurrie for her efforts to contain the privacy breaches by her efforts to recover the documents via s. 73.1 demands. His report also mentions that the City might ask the Attorney General to petition this court in the event of non-compliance with the s. 73.1 demands. Ms. Gurrie followed this suggestion, and the Attorney General elected to commence this proceeding. I am not satisfied that there is any substance to the suggestion that the City’s timing was politically motivated.

[21] Both Mr. Fuller and Mr. McGrath wonder why they are named as respondents but so many people now in possession of the personal information are not. My impression is that Ms. Gurrie chose to issue s. 73.1 notices to the persons she perceived were primarily responsible for disseminating the personal information via social media. I conclude that there is much irony but no merit in this complaint by Messrs. Fuller and McGrath.

[22] Being satisfied pursuant to s. 73.2(2), FIPPA, that personal information is in the possession of the respondents Fuller, McGrath and O’Donnell, persons not authorized by law to possess it, and that the City is entitled to custody or control of the personal information, I order these respondents within seven days to: (1) delete all electronic copies of the email and the two letters and (2) deliver all physical copies of the email and the two letters to Ms. Gurrie, the City’s designated privacy “head”.

[23] I agree with the petitioner that the s. 73.2(2) order is not sufficient to remedy the privacy breach, given the publication of electronic copies of the documents on social media accounts. Further orders under s. 73.2(3) are necessary to protect the personal information from transfer by these respondents. Accordingly, the respondents Fuller, McGrath and O’Donnell are ordered within 14 days to delete any copies of the email or letters that they have transferred, published or disseminated on social media platforms, but only to the extent that they are reasonably capable of exercising control over or deleting copies of the email or letters. They are also prohibited hereafter from transferring, publishing, transmitting or otherwise disseminating the email or letters, unless and until they receive the email or letters pursuant to a FIPPA request.

[24] The petitioner is entitled to costs of the proceeding.

“Thompson J.”