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 ("PIPA").
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.
