Nanaimo councillor broke privacy rules, commissioner says

A Nanaimo councillor posted confidential letters from a law firm to the city on his Facebook page, contrary to provincial privacy rules, B.C.’s information and privacy commissioner says in a report.

But the sources of two other leaks of confidential city information could not be determined during a lengthy investigation by the privacy commissioner’s office.

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The probe of all three matters was carried out after Sheila Gurrie, City of Nanaimo corporate officer, contacted the privacy office. Council members and senior staff were interviewed under oath.

Privacy commissioner Michael McEvoy’s seven-page report did not identify the councillor who posted the December 2015 legal letters. However, Coun. Gord Fuller said in an interview on Thursday that he posted the letters on his Municipally (A)Musing public Facebook page.

McEvoy said: “The letters set out concerns about how certain city personnel matters were handled by council. The letters name several individuals in relation to those concerns.”

At least one of the letters was distributed by city staff for discussion at an in-camera meeting of city council, McEvoy said.

On May 25, 2016, Nanaimo issued Fuller a notice to remove the posts from his Facebook page and he did so.

“The councillor in question is an experienced member of council and knew that the documents distributed in-camera were not to be disclosed beyond council chambers,” McEvoy said.

“Common sense dictated that the lack of a ‘confidential’ label could not be interpreted as a green light to release personal information in contravention of FIPPA [Freedom of Information and Protection of Privacy Act], particularly given that the meeting was in-camera.”

The office also found that a member of the public posted one of the letters to Fuller’s page.

The city told the privacy office that the councillor was ordered to destroy the documents posted on the Facebook page.

“If the councillor refuses the city’s demands, the city can ask the attorney general of B.C. to petition the Supreme Court of B.C. to enforce them,” McEvoy said.

“The city advises my office that it intends to do so if the councillor does not comply.”

McEvoy said prosecution is an option under B.C.’s Freedom of Information and Protection of Privacy Act.

Fuller said he does not believe he did anything wrong, and there was nothing to indicate that the letters were confidential. He characterized the situation as “much ado about nothing.”

He said he took down the letters from his Facebook page as a courtesy when the city made its request.

He has no plan to take down the post from the member of the public, he said.

The three privacy concerns are in addition to about 14 other privacy breaches, Fuller said, describing city hall leaks as “prevalent.”

The investigation also looked into a story published in a newspaper last year, which stated it had a copy of a confidential consultant’s report done for the city. The report followed a complaint by the then-chief administrative officer, Tracy Samra, that certain conduct toward her had violated the city’s respectful-workplace policy.

This report contained “sensitive personal information about the complainant and several other individuals. In general terms, the report concerns allegations of conflict and dysfunction between some members of city council and city administration.”

Those named in the report said they did not disclose it, McEvoy said.

“Having carefully assessed it, my staff were unable to conclusively establish who disclosed the report to the newspaper.”

The office was also stymied in efforts to find out who distributed a confidential email from Mayor Bill McKay to a labour-relations consultant hired to help resolve ongoing “adversarial relationships on council.”

McKay’s email contained critical assessments of some council members.

Nanaimo resident Tim McGrath distributed a copy of that email at a city council meeting, saying he found it under the windshield of his vehicle.

McEvoy has called on Nanaimo to immediately implement a privacy-management program, and said his office would follow up on his recommendations by Nov. 20.

Privacy commission staff will meet council members and senior staff to discuss their legal responsibilities, McEvoy said.

“I trust that the remedial approach I am taking in this case will ensure that I do not see a repeat of such incidents in Nanaimo.”

The City of Nanaimo issued a statement saying it welcomes the report and respects its findings. “We will be implementing the recommendations as soon as possible. Training will include all members of mayor and council, and will include rigorous training for the incoming council and senior staff as well.” Municipal elections are set for Oct. 20.

McKay said in an interview that the investigation took a year and a half, and “I would have hoped that they would have had the technology to be able to have more closely pinpointed who was responsible for the other two leaks.”

Online links:

Letter to the city of Nanaimo from the Privacy Commissioner

Privacy Commissioner’s news release

City of Nanaimo response

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