Yesterday the Court of Appeal for British Columbia restored a finding that the British Columbia Ministry of Children and Family Development breached British Columbia FIPPA by failing to make every reasonable effort to ensure the accuracy of personal information before using it to answer a background check inquiry.
This is a very well-litigated dispute about a communication made by the Ministry to a social services employer who contacted the Ministry, with consent, to check into the background of a new employee. The Ministry disclosed the existence of a complaint made against the employee. It also noticed some irregularities in its file, did a full review of the file (without going behind the file to make inquires) and said to the employer, “to be on the safe side, I would prefer that he may be supervised, if you can do this.”
The employee was terminated and has since been on a long campaign to seek redress. In May 2010, the British Columbia Court of Appeal dismissed the employee’s $520 million action against the Ministry and others as disclosing no reasonable cause of action. About a year earlier, the Court of Appeal heard an appeal of the employee’s privacy complaint and sent it back to the B.C. OIPC so the OIPC could consider whether the Ministry breached section 28 of B.C. FIPPA. Section 28 imposes a duty to make every reasonable effort to ensure the accuracy of personal information that is used to make a “decision that directly affects [an] individual.”
In yesterday’s decision, a 2-1 majority of the Court held that the OIPC was reasonable to conclude that the Ministry’s act of issuing a caution to the employer entailed a use of personal information in making a “decision that directly affects [an] individual.” Madam Justice Bennet wrote for the majority. Most significantly, she affirmed the OIPC’s broad reading of “decision” – to encompass formal and informal decisions – as reasonable. Mr. Justice Hinkson did not take issue with this finding in his dissent. He held that Ministry’s highly qualified advice could not even be elevated to the status of an informal decision.
The public sector access and privacy statutes in Nova Scotia, Newfoundland, Prince Edward Island, Alberta and the three territories contain provisions with similar or identical language to section 28.
Hat tip to Eileen Vanderburgh from the ABHL Information + Privacy Law Blog.