FIPPA applies to Municipal Councillors

In its much anticipated decision in R v. Skakun, the BC Court of Appeal recently held that a municipal councillor is an “officer” under section 30.4 of the Freedom of Information and Protection of Privacy Act (“FIPPA”).

This case involves the long running saga of Brian Skakun, a councillor for the City of Prince George. In May of 2008, a copy of a confidential and privileged report on workplace harassment prepared by an external investigator was tabled with councillors for the city at an in-camera meeting. The report contained sensitive personal information about a number of persons. Mr. Skakun admitted that he divulged the report to the CBC in August of 2008, asserting that he did so in the public interest.

As a result, Mr. Skakun was charged with a breach of s. 30.4 of the FIPPA which prohibits an “employee, officer or director of a public body who has access to personal information in the custody or under the control of the public body” from disclosing such information. As part of his defence, Mr. Skakun argued that the reference to “officer” in s. 30.4 does not include a municipal councillor. The BC Provincial Court rejected this defence and found that Mr. Skakun was the holder of an office in the City of Prince George based on references to terms of office, oaths of office, and “municipal public officer” in the Community Charter and the Local Government Act. Accordingly, Mr. Skakun was convicted of breaching a provincial statute (FIPPA), a quasi-criminal offence, and was fined $750 in May of 2011.

Mr. Skakun then appealed his conviction, in part, based on the argument that the FIPPA reference to an officer in s. 30.4 does not include a municipal councillor. However, the BC Supreme Court concluded that the trial judge’s reasons were sufficiently clear, and dismissed the appeal on this and other grounds.

Mr. Skakun was granted leave to appeal to the BC Court of Appeal on the sole issue of the interpretation of s. 30.4 of FIPPA. In its decision, the Court of Appeal confirmed that the term “officer” is not ambiguous, and its plain and ordinary meaning includes an elected municipal councillor. Accordingly, Mr. Skakun’s appeal was dismissed.

This decision serves as an important reminder to elected officials and others that BC’s privacy legislation has broad application.

R. v. Skakun, 2014 BCCA 223