A B.C. judge has ordered a former Nanaimo councillor and two others to delete confidential information they posted on social media.
Gord Fuller, an ex-city councillor, along with Matthew O’Donnell and Tim McGrath, were ordered by Judge Douglas Thompson to remove copies of an e-mail written by former Nanaimo mayor Bill McKay and two letters written by a lawyer to the City of Nanaimo.
Thompson’s ruling comes after the province’s attorney general filed a petition in the Supreme Court of British Columbia against Fuller, McGrath, O’Donnell and Terry Lee Wagar. However, Wagar, according to Thompson’s ruling, reached a deal with the attorney general.
The attorney general as well as the City of Nanaimo had demanded that the individuals remove letters written in December 2015 from the legal firm Ramsay Lampman Rhodes to McKay and Tracy Samra, the city’s former chief administrative officer, as well as a 2015 e-mail from McKay to the consulting firm Integrity Group, which contained sensitive comments about city councillors.
McGrath had distributed printed copies of McKay’s e-mail to councillors at a council meeting in November 2016. McGrath claimed a copy of the e-mail was left on the windshield of his vehicle. The province had also accused McGrath, O’Donnell, Wager and Fuller of posting the RLR letters on Facebook.
The Office of the Information and Privacy for British Columbia and Sheila Gurrie, the city’s clerk and privacy head, both demanded that the information be removed from social media and destroyed.
A hearing was held on Nov. 7, when Fuller and McGrath both argued that many other people were in possession of the leaked documents. Fuller also argued that council received the RLR letters long before council contemplated going in camera with them. He had also argued that there was nothing on the letters to suggest they were confidential and suggested the timing of the attorney general’s case against him was suspect.
In his ruling, Thompson said the leaked material contained personal information and was in fact in the city’s “custody.” He said even though individuals had copies of the information, it doesn’t mean the city is still not in custody of the information and that Gurrie had the right to demand the individuals remove and destroy the information they shared, even if the city may have been responsible for the leaks.
“The city possesses the e-mail and letters. The fact that the respondents have a copy of these documents does not detract from the city’s custody of the documents and the personal information contained in them,” Thompson said. “I think it likely that the city was the source of the leak of this personal information, but I am not sure that matters.”
Fuller’s claim that he was selectively targeted by the city because he was planning to run in the upcoming municipal election is meritless, according to Thompson, citing Gurrie’s multiple reports about the breaches going as far back as November 2016. He said it was his “impression” that Gurrie made the requests of Fuller and McGrath because she believed they were “primarily responsible for disseminating” the information.
“I am not satisfied that there is any substance to the suggestion that the city’s timing was politically motivated,” Thompson said.
Thompson ordered Fuller, O’Donnell and McGrath to delete all electronic copies of the e-mail and letters within seven days and deliver any physical copies to the city. The trio also have 14 days to remove the leaked material from all social media platforms “to the extent that they are reasonably capable of excessing control over.” Additionally, the three cannot publish the letters or e-mail unless they receive them via an FOI request.
The city is not responsible for court costs, which are unknown at this time.
Fuller told the News Bulletin he was “a little bit” disappointed by the outcome of the ruling and he still hasn’t complied with the court order.
“At this point I haven’t. Ultimately, I will likely follow the order, but right at this moment I have other things to do,” he said. “If people want to point out the links to all of those posts to me, feel free, then at least I will be able to find them because I am not going to spend hours doing this.”
The former councillor said he isn’t sure how much money he will have to pay in legal fees, if any, and doesn’t believe his legal costs would be covered under the city’s indemnity clause because of the municipality’s involvement in the case. He said while he would like to launch an appeal, he probably won’t because he doesn’t have the financial means.
“It’s a sad statement on society when the courts can come after you, but defending yourself is next to impossible unless you have the money to do so,” Fuller said.
Wagar told the News Bulletin he reached an agreement with the attorney general in which he agreed to take down the RLR letters and the Integrity Group e-mail, which he had shared on social media. He said he has taken down the posts, explaining that he decided to reach an agreement because the case was simply about the information being posted on social media.
“Gord and all those guys thought that there was some behind-the-scenes plot and all this stuff and I thought, well, whether that is true or not is irrelevant because all the court case was about was the materials being on Facebook and what not,” he said.
Wagar said he knew sharing the information with the public was wrong, but never believed he would get in trouble.
“At the time, I thought, this is juicy stuff and people are going to want to know about it,” he said.
Meanwhile, Gurrie said in an e-mailed statement that she is satisfied with the outcome and that the city will continue to work with the attorney general’s office to ensure compliance is met.
“I am pleased with the judgment as I believe it is an accurate reflection of the Freedom of Information and Protection of Privacy Act legislation as well as the sequence of events leading up to it,” she said.