The British Columbia Court of Appeal in B.C. (Ministry of Children and
Family Development) v. Harrison has confirmed a broad
interpretation of the obligation on a public body under the
Freedom of Information and Protection of Privacy Act
("FIPPA") to make every reasonable effort to ensure
the accuracy of personal information used in decisions that
directly affect an individual. Although this decision was made
under section 28 of FIPPA, it has implications for the obligations
of private sector organizations under the comparable section in
the Personal Information Protection Act
As the Court noted, this decision was part of long and
protracted litigation between Mr. Harrison and the Ministry of
Children and Family Development related to Mr. Harrison's
termination from his employment with Access House, a
residential youth program operating under contract to the Ministry.
Shortly after Mr. Harrison commenced employment with Access House,
the Ministry learned of a 1996 unsubstantiated allegation of abuse
against him and a Ministry social worker advised the program
director for Access House that there was something on his
file. In response to the program director's email
asking if the Ministry wanted Mr. Harrison supervised while working
one-on-one with a youth, the social worker replied "to be on
the safe side I would prefer that he may be supervised if you can
do this." Mr. Harrison was terminated approximately one week
later as Access House was unable to supervise him while he was
working. One month later, the Director of Child Welfare
placed a letter on Mr. Harrison's file that the
allegations of abuse was not a barrier to Mr. Harrison's
employment in a position of trust involving children.
The issue for the Court was whether or not the Ministry had used
the unsubstantiated allegation to make a "decision" about
Mr. Harrison that "directly affected" him. The
Ministry did not take the position in the Court of Appeal that the
social worker had made "every reasonable effort" to
ensure the accuracy of the information. The evidence from the
inquiry proceedings before the Commissioner's delegate and in
the Supreme Court was that the social worker took no steps to
investigate whether the information was accurate.
The Ministry argued that it had not used the information
to make a decision about Mr. Harrison, but rather used the
information to recommend to Access House that Mr. Harrison be
supervised. The Ministry interpreted the word
"decision" as involving something of substance such as
hiring or firing an employee, granting or denying a licence
or a benefit, or taking a child into care. an interpretation that
was consistent with the B.C. Government's Policy and
Procedures Manual for FIPPA. The majority of
the Court accepted as reasonable the broader interpretation of
the Commissioner's delegate that
included recommendations within the scope of
"decisions" that directly affect individuals.
The Court concluded that the broader interpretation was consistent
with the purpose of section 28, that is, to ensure that public
bodies do not make decisions directly and indirectly affecting
individuals based on inaccurate personal information.
Mr. Justice Hinkson in dissent found that the email from
the Social worker to Access House was not a decision nor was it a
recommendation that Mr. Harrison be removed from unsupervised
access to clients. He found that the Delegate's
characterization of the email as a "recommendation" was
not reasonable, given the entire content of the email. He found
that the communication by the social worker of her preference that
Mr. Harrison be supervised if Access House could do so, could not
be elevated to the status of even an informal decision.
Public bodies who may have developed privacy policies in
reliance on the interpretive guidelines in the B. C
Government Manual will need to review their policies to ensure
their use of personal information in formal and informal decisions,
recommendations and communications complies with this decision.
Private sector organizations should also ensure that their privacy
policies address the accuracy of personal information
used by the organization to make decisions affecting
individuals or disclosed to another organization
who will use it to make decisions affecting individuals.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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