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ACCESS TO INFORMATION AND PRIVACY - Protection of privacy - Personal information

Tuesday, January 21, 2020 @ 5:49 AM  

Application by BC Hydro for judicial review of a decision of the Privacy Commissioner determining that the applicant was required to disclose certain employee names in response to an access to information request relating to an anticipated dam and hydroelectric generating station. The Commissioner concluded s. 22(4)(e) of the Freedom of Information and Protection of Privacy Act applied to the employees' names because the names simply identified them as evaluation committee members and their positions within the applicant, and the records were normal operational documents. She found s. 22(4)(e), which applied to personal information about a public body employee's position, functions or remuneration, applied and that disclosure of the personal information was not an unreasonable invasion of a third party's personal privacy. The Commissioner also found there was an insufficient connection between the disclosure of the employees' names and a threat to those employees' safety, or mental or physical health. Section 19 authorized a public body to refuse to disclose information to an applicant if the disclosure could reasonably be expected to threaten an individual's safety or mental or physical health. The applicant provided evidence of actual physical and verbal violence, including threats of future violence. The Commissioner concluded that employees who worked at the applicant’s offices were likely safe because no threats or violence had occurred at its offices. She assumed the employees whose names were redacted worked at the offices.

HELD: Application allowed in part. The Commissioner’s decision that s. 22(4)(e) applied to require disclosure of the employees' names was reasonable. It was reasonable for the Commissioner to find s. 22(4)(e) applied to the employees' names that were redacted. Although s. 22(4)(e) did not specifically contain the word "name", by implication it could be interpreted as including the word "name". The Commissioner’s application of s. 19(1)(a) was not reasonable. To rely on s. 19(1)(a), the public body did not need to prove the harm would probably occur if the information was disclosed although the mere possibility of harm was also not sufficient. The Commissioner’s interpretation of s. 19(1)(a) required the apprehended harm to rise to the level of either a near certainty or to have already occurred in a similar context which was an unreasonable interpretation. By expecting the applicant to demonstrate that harm would likely result if the names were disclosed, she imposed an unduly high onus on the applicant.

British Columbia Hydro and Power Authority v. British Columbia (Information and Privacy Commissioner), [2019] B.C.J. No. 2371, British Columbia Supreme Court, D.C. MacDonald J., December 9, 2019. Digest No. TLD-January202020005