ROTHENBURGER – Request from City’s privacy officer was dressed as an order

PRIVACY IS SERIOUS BUSINESS. When it comes to public bodies, it’s the flip side of transparency. In B.C. there’s a lot of regulation around it, particularly in the Freedom of Information and Protection of Privacy Act, known as FIPPA.

Most local governments, at least in bigger cities and regional districts, now have dedicated staff to deal with matters covered by that act. Mainly, they involve applications from the public for access to records created in the course of doing the public’s business.

Sometimes, though, possession of records obtained outside the FOI process may be deemed to be a breach of privacy. For example, if someone receives details of a public servant’s health records or employment status, a demand might be made by City Hall that the records be returned or destroyed.

Such an occasion occurred this week involving Mayor Reid Hamer-Jackson’s email activity. He’s been sending out daily emails to deputy mayors and copying them to local media as part of his transparency pledge. Sometimes, the emails include screenshots of documents or previous communications to back up his point.

One of them came to the attention of the City’s privacy officer Stephanie Nichols, who fired off a demand to those in receipt of the email to delete it.

The subject line was “Direction to Delete Record Containing Personal Information.” The email began, “On September 13, 2026, at 7:16 am. you received an email from Mayor Hamer-Jackson with the subject line ’Fw: O’Reilly NL radio.’ In the email and the two images attached, Mayor Hamer-Jackson disclosed sensitive personal information that he was not authorized to share.

“We have determined this is a breach of privacy and will be reporting this matter to the BC Office of the Information and Privacy Commissioner.”

It was then followed with a “we direct you” to do a whole bunch of things to destroy any copies of the email in existence, with a deadline of 4 p.m. the following day to confirm that this had been done.

Nichols pointed out that the City has the authority under the act to take legal action to recover the information. It was pretty strong stuff.

In reviewing what the mayor had sent out, I had a little trouble understanding what the big deal was. It involved a City employee but it seemed to me the references were nothing that would be embarrassing or damaging to that person’s reputation, so I asked for clarification of why it was considered a breach of privacy, especially since it had previously been published in the media.

Nichols replied simply that it contained sensitive person information and was “an unreasonable invasion of a third party’s personal privacy.” She noted that the City has a legal obligation to protect personal information regardless of whether it’s already in the public realm.

She again mentioned the 4 p.m. “deadline” but this time “asked” me, rather than “directed,” me to comply, calling it a “request.”

It wasn’t much of an answer but I thanked her for changing the terminology from “direct” to “request” and “ask,” “as I don’t believe your authority includes setting such a short timeline for compliance.”

Meanwhile, unbeknownst to yours truly, Kamloops Critic publisher Richard Wilbur was going through a somewhat similar process. When he got his email from Nichols, he asked her to clarify the legal authority for her demand.

She replied that she was “seeking voluntary compliance,” and “we encourage you to comply with the actions requested to avoid the need for further action.”

Again, quite a different tone than the initial “Direction to delete record” email.

Wilbur, who has made a mark with his thorough research on the goings-on at City Hall, wrote in his Kamloops Critic blog on Friday (headlined, ‘The City Directed Me to Delete an Email, Then Said It Was Voluntary’) that he hasn’t deleted the mayor’s email or its attachments, and will wait to be informed whether a Section 73.1 notice is issued. “I have no intention of publishing the employee’s personal information,” he wrote, but says he’s preserving the email and attachments because he has filed an FOI application asking for the City’s records behind Nichols’ Sept. 15 email.

I decided, for two reasons, to delete the mayor’s email as Nichols asked. First of all, the FIPPA doesn’t leave any leeway. While the privacy breach cited by Nichols is, in my view, marginal at best, legislation doesn’t distinguish between marginal and major.

Section 22 clearly states that disclosure of personal information is presumed to be an unreasonable invasion of privacy if, among other things, it “relates to employment, occupational or educational history.” Employment history is defined as any information regarding the individual’s work record, including duties associated with the position.

So, while I’m not a lawyer or privacy expert, it seems pretty certain that, technically, a breach of privacy occurred. I say technically because I can’t conceive of any possible harm this particular employee might suffer from this particular breach.

The second reason I complied is that I have no wish, use nor cause to retain the record. Wilbur’s rationale that he needs it for an FOI application, though, makes sense.

The next step in the process, if the City pushes the matter, is to formally demand compliance under Section 73.1 of the Act. That involves a 20-day deadline to comply. Under Section 73.2, the City could seek enforcement through a court order.

In a broad sense, Nichols was just doing her job. If she becomes aware of a privacy breach, she has an obligation to mitigate it by pursuing destruction or return of documents. What’s annoying, however, is the language used in communicating with those who received the mayor’s email.

Nichols’ email to them made it sound as though she was triggering enforcement she didn’t yet have authority to do. It seemed designed to put the fear of God into the recipients. I can find no reference anywhere to authority to impose a 24-hour deadline.

Requests from the City’s FOI and privacy department should be clear — a request is a request. They should not attempt to “direct” that something be done within 24 hours, in hopes the recipient won’t ask any questions.

Mel Rothenburger is a former regular contributor to CFJC-TV and CBC radio, publishes the ArmchairMayor.ca opinion website, writes for the Kamloops Chronicle and is a recipient of the Jack Webster Foundation Lifetime Achievement Award, and was a Webster Foundation Commentator of the Year finalist. He has served as mayor of Kamloops, school board chair and TNRD director, and is a retired daily newspaper editor.  He can be reached at mrothenburger@armchairmayor.ca.