B.C. Jehovah’s Witness congregations in Coldstream and Grand Forks have challenged an information commissioner’s order to turn over documents to B.C.’s Office of the Information and Privacy Commissioner (OIPC).
The June 20 order from OIPC director of adjudication Elizabeth Barker determined the church must hand over records on two former members so it can decide "what access to the records, if any, the applicants should be given."
And, in challenging the order, the congregations are also challenging the constitutionality of the provincial Personal Information Protection Act (PIPA). They say the order is beyond the OIPC’s jurisdiction and, in a B.C. Supreme Court petition filed Aug. 2, requested the order be quashed.
The church had refused to turn over personal records sought by former Jehovah's Witnesses Gregory Westgarde and Gabriel-Liberty Wall, who are seeking return of their personal records.
The congregations refused the requests, claiming the records are confidential and that compelling production violates their constitutional rights.
The church argued at the OIPC that PIPA did not apply to it, an assertion with which Barker disagreed.
While Barker found measures in PIPA do infringe freedom of religion, that infringement is justifiable under the Canadian Charter of Rights and Freedoms.
She said the congregations did not establish that PIPA infringes freedom of expression, freedom of association or unreasonable search and seizure under the charter.
Much of the issues hinge around records made by church elders after members left the church.
Jehovah's Witnesses do not have paid clergy. Instead, each congregation has a group of voluntary, appointed elders who are responsible for taking the spiritual lead.
Several years after Westgarde left the Jehovah’s Witnesses, he requested the Grand Forks congregation provide him a copy of all records that contain information about him.
Liberty Wall did the same a decade later when leaving the Coldstream congregation. The church initially told him it did not have any of his personal information, but later revised its response to say that his personal information was in a record that "constitutes a confidential religious communication, privileged under the common law and charter."
Barker, however, said the congregations had not produced the disputed records for her to review, claiming disclosure to anyone would violate the charter rights and freedoms of all the elders in the two congregations and all other elders and B.C. Jehovah’s Witnesses.
"The respondents' uncontradicted evidence is that the elders are ecclesiastical appointees,” Barker said. “In particular, the elders say they did not prepare the records as part of their responsibilities to the congregations; rather they prepared them 'as part of a ‘sacred ecclesiastical duty' to God to help 'restore erring ones' and maintain the 'scripturally moral and spiritual integrity of our congregations' in the collective sense of the religious denomination of Jehovah's Witnesses."
That duty, the court petition explained, includes the preparation of documents when someone decides to leave the church.
The petition further explains that the records contain records of “elders’ private and prayerful religious deliberations and expression.”
“There is no evidence that any of the elders breached their scriptural requirement of confidentiality,” the petition said.
The elders said disclosing the records would violate religious practice and conscience.
Barker wrote that without seeing the documents, "it is not possible to decide whether they contain personal information or whose personal information may be included."
A decision in the matter could have ramifications across the country for congregations holding records on former members.