On July 4th, the Supreme Court of British Columbia quashed a British Columbia OIPC order to provide an FOI requester with access to information about Airbnbs operating in the City of Vancouver.
The City licenses short term rentals. It publicly discloses license information, presumably to enable renter inquires. However, the City stopped publishing host names and rental addresses with license information in 2018 based on credible reports of safety risks. Evidence of the safety risks was on the record before the OIPC – general evidence about “concerned vigilante activity” and harassment, evidence about a particular stalking episode in 2019 and evidence that raised a concern about enabling criminals to determine when renters likely to be out of the country.
The OIPC nonetheless ordered the City to disclose:
- License numbers of individuals;
- Home addresses of all hosts (also principle residences given licensing requirements); and
- License numbers associated with the home adresses.
It was common ground that the above information could be readily linked to hosts by using publicly available information, rendering the order upsetting to Airbnb’s means of protecting its hosts. Airbnb only discloses the general area of rentals on its platform, which allows hosts to screen renters before disclosing their address.
The evidence affirmed the OIPC dismissal of the City’s safety concern as a reasonable application of the Merck test, but held that the OIPC erred on two other grounds.
First, the Court held that the OIPC unreasonably held that home address information was contact information rather than personal information. It failed to consider the context in making a simplistic finding that home address information was “contact information” because the home address was used as a place of business. The disclosure of the home address information, in the context, had a significant privacy impact that the OIPC ought to have considered.
Second, the Court held that the OIPC erred in not giving notice to the affected hosts – who numbered at least 20,000 – and for not providing reasons for its failure. The Court said this was a breach of procedural fairness, a breach punctuated by the evidence of a stalking and harassment risk that the OIPC acknowledged but held did not meet the Merck threshold.
This is a wonderful case that illustrates how judicial review works. In my view, the evidence about the risk of harm drove the outcome despite the Court’s affirmation of the OIPC finding. The Court simply found an easier way to address the problem with the OIPC’s outcome – a procedural fairness finding. The notice obligation is no small obligation in cases like this, but cannot be rightly ignored.
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