B.C. attorney general taking Nanaimo city councillor to court over privacy breach

By Spencer Sterritt
September 17, 2018 - 5:07pm

B.C. attorney general David Eby has filed a petition against Nanaimo city councillor Gord Fuller and three other citizens.The Canadian Press/GoFundMe

NANAIMO — B.C.'s attorney general is stepping into the legal ring against a Nanaimo city councillor.

The attorney general's office filed a petition against coun. Gord Fuller and three other citizens over their continued refusal to delete confidential documents posted online. The petition hopes to use the full weight of the law, including fines and further legal action, against Fuller and others to compel them to destroy their copies of confidential documents and any others which still exist online.

The court case is the latest development in an ongoing dispute over a confidential email which was shared on social media. The letter contained the mayor's harshly critical opinions of fellow councillors, supposedly part of ongoing mediation to repair their relationship. It was posted onto the windshield of one of the respondents in 2015 and then shared online in numerous Facebook groups, with the media and during a public council meeting.

Confidential legal emails were also shared to social media.

The privacy breaches led to an official investigation by the Office of the Information and Privacy Commissioner. It found all the leaks contravened the province's privacy legislation but failed to determine who leaked the information.

“Despite the OIPC's letter and conclusions - and despite Nanaimo's ongoing efforts to mitigate the privacy breaches - the Respondents have refused or ignored Nanaimo's demands that the email and letters be removed from Facebook and destroyed,” the petition to the Supreme Court of B.C. said.

University of Victoria political scientist Michael Prince described it as a “highly unusual, very dramatic and very unique” situation which could have serious legal and legislative ramifications.

“It does raise some of the limitations of legislation which was crafted for more reasonable circumstances than the one we've witnessed in Nanaimo over the last couple of years,” he said.

Several pages of the petition detailed the many ways City freedom of information and privacy head Sheila Gurrie tried to resolve the situation, including sending numerous written notices to everyone involved, to no avail.

“The dissemination of information is well beyond the old days of file folders and brown envelopes slid under doors or handed to people quietly on a Friday afternoon,” Prince said. “This is a real technology challenge for all governments.”

As to how the courts would be satisfied all the digital versions of the information were actually deleted, Prince said it would be very costly to track all the individual files and would likely cost far more than anything the respondents would be forced to pay as a fine.

However, despite the challenges of the case, Prince said there's a very real, human element also at play.

“This is still about human behaviour, egos and a willingness to comply with the rule of law. I think that's why the attorney general is now involved. Some people might have expected (him) to step in sooner, but there's little doubt this is an appropriate time.”

Prince said it's purely circumstance the matter is going to the Supreme Court of B.C. roughly a month before the municipal election.

“This has been a number of decisions and choices made by a number of players in this drama. I think the attorney general has stepped in at an appropriate time, it just happens to be in the fourth year of an election cycle. This will not be resolved probably before the election and will play out through the rest of this fall and likely into the winter.”

Fuller and the respondents have until Oct. 5 to file their reply, with one saying in an online comment they look forward to their day in court against the office of the attorney general.

 

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