The BC Supreme Court has affirmed the conviction of Prince George Councillor Brian Skakun in a prosecution for breaches of the Freedom of Information and Protection of Privacy Act (FOIPPA).  This case has implications for public employees and officials with respect to the handling and disclosure of personal information. 

As we reported in a previous Alert, Councillor Skakun was convicted on May 24, 2011 because he released a City investigation report into interpersonal workplace conflict involving civilian staff working in the City’s RCMP detachment.  Councillor Skakun appealed his Provincial Court conviction to the Supreme Court on a number of grounds, including bias by the Judge and that he was not afforded due diligence or whistleblower defences.  Councillor Skakun also argued that the trial Judge was wrong in applying the FOIPPA prohibitions since he was not an officer of the City in accordance with FOIPPA.

On appeal, the Judge restated a number of reasons why a Councillor is an official of the City.  The Court relied on the language in the Local Government Act describing Councillors as municipal public officers.

The Court affirmed that public bodies may only release personal information about individuals in its possession or control through the processes set forth in FOIPPA.  In this case, the Court confirmed that none of the processes specified in FOIPPA for the release of personal information were followed.  This included the fact that the head of the public body, who in this case was the City Manager, was not asked to review the report to determine what, if anything, could be the subject of lawful disclosure.  The Court concluded that nothing in FOIPPA authorizes the release of personal information by a Councillor acting alone as an officer of the municipality. 

The Supreme Court also restated that the FOIPPA statutory obligations are subject to a due diligence defence.  Councillor Skakun took the position that he ought to have been afforded a whistleblower defence, as a sort of due diligence defence.  Skakun argued the public had the right to know about the contents of the report and so he should not have been prosecuted.  The Court rejected this on the basis that FOIPPA balanced privacy and public interest, and Councillor Skakun had not followed the disclosure provisions in FOIPPA.

This case has a number of implications for public bodies and their employees and officers.  It is a reminder that employees, officers and directors of public bodies may be subject to prosecution if they disclose personal information without authority pursuant to FOIPPA.  While the fine imposed of $750 in this case was not monetarily significant, there were other practical issues: the Councillor faced the prospect of sanctions by Council and incurred significant legal fees.  With respect to the law and procedure, it is not yet clear what will be required to establish a due diligence defence in future cases.  Given the comments of the two courts in this case, employees and officers ought to remember that they may be acting in an official capacity when dealing with personal information and ought to take care to follow the privacy protection requirements and access procedures contemplated by FOIPPA.