Chapter 15: Confidentiality
Section 314 provides:
314 (1) Members of the appeal tribunal and officers, employees and contractors of the appeal tribunal must not disclose any information obtained by them or of which they have been informed while performing their duties and functions under this Part, except as may be necessary to discharge their obligations under this Part.
(2) If information is disclosed for the purposes of this Part to a person other than the person the information is about, the person to whom the information is disclosed must not disclose the information except in the circumstances listed in section 235(1)(a) to (d).
(3) A person who violates subsection (1) or (2) commits an offence.
Section 235(1) provides:
235(1) If information in a claim file, or in any other material relating to the claim of an injured or disabled worker, is disclosed for the purposes of the [WCA] by an officer or employee of the Board to a person other than the worker, that person must not disclose the information except as follows:
(a) in compliance with an enactment of British Columbia or Canada;
(b) in compliance with a subpoena, warrant or order issued or made by a court, tribunal, person or body with jurisdiction to compel the production of information;
(c) for the purpose of preparing a submission or argument for a proceeding under a compensation provision, an OHS provision or Part 7 [Appeals to Appeal Tribunal];
(d) if the information is about a person, the person has identified the information and consented, in the manner required by the Board, to disclosure of that information.
WCAT members must not, except in the proper performance of their duties, disclose any information obtained as a member [s. 30 ATA]. Members must not be required to give evidence in any proceeding, other than a criminal proceeding, about records or information obtained in the discharge of their duties under the WCA or the ATA [s. 55 ATA].
Members, officers, employees, and contractors of WCAT who cease to hold office, or who cease to be employees or contractors, continue to be bound by the obligations of confidentiality in respect of any matter arising while they were a member, officer, employee, or contractor of WCAT (21.2).
15.1 Freedom of Information and Protection of Privacy Act (FIPPA)
The FIPPA prohibits a public body from using personal information in its custody and control other than for the performance of that body’s statutory duties [ss. 32 and 34, FIPPA]. This means that WCAT members and support staff are prohibited from accessing or using personal information except as required in the performance of their work duties.
Under FIPPA, an applicant may apply in writing to a public body for access to any record within the custody and control of that body. WCAT is a public body within the meaning of FIPPA.
WCAT is obliged by sections 6 and 7 of FIPPA to respond to requests within 30 days and to make every effort to respond openly, accurately, and completely. If access is denied, WCAT’s response will include reasons for the refusal and explain the applicant’s right to request a review of the decision by the Information and Privacy Commissioner.
Section 66 provides that the head of a public body may delegate any person to carry out their duties under FIPPA. Tribunal counsel has the delegated authority to respond to applications. Inquiries regarding disclosure under FIPPA should be directed to tribunal counsel.
Section 20 of FIPPA provides that a public body need not disclose information which is to be published or released to the public within 60 days. As WCAT decisions are publicly accessible on the internet within 60 days, WCAT will refer persons with inquiries concerning WCAT decisions to the internet site.
15.1.1 Freedom of Information and Protection of Privacy Act (FIPPA) and WCAT Proceedings (13.3)
Once a panel issues a decision on an appeal, WCAT forwards all new documentation and correspondence pertaining to the appeal, including evidence and submissions, to the Board to be placed on the Board’s file. The only exception is section 311 applications for certifications to a court. WCAT also maintains an electronic case management system which is an electronic record of appeal activity. All that WCAT keeps as a permanent record after the decision is issued is an electronic copy of the decision itself and the electronic record of appeal activity.
Certain categories of records are exempt from disclosure because they do not fall within the scope of FIPPA or FIPPA does not apply [s. 61 ATA]. These include:
- personal notes, communications, or draft decisions of a decision maker;
- personal information, the disclosure of which would be an unreasonable invasion of a third party’s personal privacy;
- information that would reveal advice or recommendations developed by or for a public body or a minister;
- information that is subject to solicitor client privilege;
- information relating to the exercise of the Ombudsman’s function;
- notes or records kept by a person appointed to conduct a dispute resolution process;
- any information WCAT receives in a hearing from which the public, a party, or participating person/representative group was excluded;
- a transcription or audio recording of a proceeding;
- a WCAT decision which is publicly accessible.
15.2 Disclosure to Third Parties
WCAT may receive requests for information regarding appeals from third parties such as private disability insurance carriers and provincial government agencies. To protect workers’ privacy, WCAT will not disclose such information without a signed authorization form from the worker, unless required by law. Where the request for information does not specifically authorize WCAT to disclose information, but it specifically authorizes the Board to do so, WCAT will refer the third party to the Board.