'Deeply troubling:' privacy commissioner finds multiple Nanaimo City Hall breaches illegal

By Dominic Abassi
August 2, 2018 - 10:25am Updated: August 2, 2018 - 3:49pm

An investigation by B.C.'s privacy commissioner found there appears to be a lack of understanding at the City of Nanaimo on obligations to protect information.Spencer Sterritt/NanaimoNewsNOW

NANAIMO — B.C.'s privacy commissioner is deeply concerned with the myriad of confidential leaks from the City of Nanaimo.

On Thursday, Michael McEvoy released a report following an investigation by his office into three complaints filed by the City's privacy head. While McEvoy found all three leaks were illegal and breached legislation, investigators were only able to determine who was responsible for one of the releases of private information.

McEvoy said it was a "very unusual investigation" because it appeared, based on the information they received, senior members of staff and some councillors were potentially involved in the unlawful disclosures.

"I find it deeply troubling that people at the senior levels of municipal government would not understand their responsibilities and would disclose personal information the public expects them to properly protect," McEvoy told NanaimoNewsNOW.

"What was clear to my investigators was there was a fundamental lack of understanding among some members of council and the senior administrative team about what their obligations are under protection of privacy legislation."

The investigation came to a head in November 2017, when three complaints filed by City privacy head Sheila Gurrie were rolled into one investigation by the previous acting commissioner.

The complaints involved:

  • The leak of the Goldner Report to the Globe and Mail. The report contained the findings of a labour lawyer based on an investigation into complaints levelled by former chief administrative officer Tracy Samra
  • The leak of a confidential email written by mayor Bill McKay to a consultant containing inflammatory comments about all members of council
  • The posting of legal letters about coun. Diane Brennan on coun. Gord Fuller's Facebook page

With regards to the Goldner Report, the commissioner found only the City's human resources department, the CAO (Samra), and the two individuals named in it (coun. Brennan and mayor McKay) were given copies of the report. While all members of Council received a copy during a closed meeting, the copies were collected at the end of the meeting.

"We asked the CAO if she disclosed the report as she was quoted in the newspaper article saying she was afraid the report would not be made public. The CAO admitted to making that statement but denied disclosing the report to the newspaper," McEvoy's report said, adding all other staff and councillors interviewed denied involvement in the leak.

It said there was insufficient evidence to determine "who at the City" leaked the report.

"We need conclusive evidence of who disclosed the information...We require actual proof, evidence that will stand up in court...In this case, we reviewed a considerable amount of material but were not able to glean the evidence necessary," McEvoy said, adding if they find someone lied under oath it is an offence his office will follow up on.

The commissioner's report made the same determination about the leak of the consulting group email, saying all those who had contact with it denied releasing it.

"The likely source of the email was from within the City, considering that the consulting group had little to gain from its disclosure," the report said.

When it comes to the leak of the legal letters, the report said "one councillor," known to be coun. Fuller, admitted to posting them on Facebook because there was nothing explicitly stating they were confidential.

"The councillor in question is an experienced member of council and knew that documents distributed in-camera were not to be disclosed beyond council chambers. Common sense dictated that the lack of a 'confidential' label could not be interpreted as a green light to release personal information."

McEvoy said their investigation found some of the illegally released documents remain online in Fuller's Facebook group. He said they have ordered that information removed and are monitoring the situation.

"My office is reserving the option to look at prosecution if matters are not resolved satisfactorily," he said.

The privacy commissioner's office made several recommendations to the City to prevent future leaks and McEvoy said his staff will follow up with the City soon to discuss the report and follow implementation of preventative measures.

"We really want to ensure the City of Nanaimo understands its obligations under the law to properly protect people's personal information."

The investigation did not examine the latest leak of City information, when Fuller's brother Robert Fuller posted a confidential financial audit report on Facebook.

You can read the commissioner's full report here.

— Note to readers: a further story with reaction from the City and others will be published separately.


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On Twitter: @domabassi

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