Nanaimo must grant former staffer's access to information requests

Nanaimo has lost a bid to disregard current freedom of information requests and limit future ones from a former employee who has filed a complaint against the city with the B.C. Human Rights Tribunal.

“I conclude that the city has failed to meet its burden to prove that the outstanding requests are vexatious. In my view, the outstanding requests are also not frivolous,” adjudicator Ian C. Davis wrote in his Jan. 13 decision for the office of B.C.’s Information and Privacy Commissioner.

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“The respondent wants the records to assist her with her [B.C. Human Rights Tribunal] case.”

Nanaimo argued that it was trivial for the former staffer to ask for various versions of a KPMG audit report, but Davis did not agree.

“The respondent explained that she believes these specific records will assist her in defending against an allegation.”

Nanaimo was not able to establish that responding to the requests would unreasonably interfere with its operations because they are repetitive or systemic, Davis said.

The former employee, who was not named, worked for the city until 2018. Later that year, she filed a human rights complaint against Nanaimo and two individuals, also not named.

An April 15, 2020, the human rights hearing was adjourned after disputes arose about the scope of documents produced by the city, the decision said.

The former employee subsequently submitted three access to information reports to the city, with two of them having multiple parts, it said.

Nanaimo went to the Privacy Commissioner’s office asking to be allowed to disregard the additional multi-part requests submitted in August and September. It also asked for the ability to limit the former employee to one or two requests per year, with a five-hour limit on staff time to respond to each request.

Access to information requests submitted were for drafts of a 2018 KPMG forensic investigative assistance report, as well as a number of emails addressing privacy breaches and other topics.

Nanaimo argued that the requests are repetitious because they “relate to the same topics as each other or to the respondent’s other requests” and that the former employee already has the records, the decision said.

The city described the former employee’s time with the municipality as “tumultuous.” Staff are fearful and dread having to deal with her, the report said.

The former employee said she only made seven access requests via the city’s online system. She denied already possessing requested documents or being aggressive or demeaning to staff, the report said.

She said that some outstanding requests asked for the same type of information but are for different records, events or time frames and that there is no overlap, the decision said.

She maintained that the requests are not frivolous because the human right hearing is “plainly about significant matters,” it said.

Nanaimo Mayor Leonard Krog would not comment Thursday on whether the city is considering an appeal.

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