Mediacheck

The Freedom of Info Maze

Public has right to government records, but just try to get them.

By Russ Francis, 5 Jul 2006, TheTyee.ca

Maze

Officials telling us to get lost?

Like many reporters, I've filed innumerable freedom-of-information requests. Here's why I still cross my fingers every time.

The naïve outsider could be excused for thinking that, with the help of the province's freedom of information and protection of privacy act, barrels-full of evidence of scandal, corruption, wasteful spending and other forms of malfeasance by the 2,000-plus public bodies in B.C. is readily available, on request.

Witness the following, from the legislation's opening lines: "The purposes of the act are to make public bodies more accountable to the public and to protect personal privacy by...giving the public a right of access to records."

Sounds great.

Dear Local School Board Superintendent:

Please send me all the embarrassing stuff you have, so I can write a story that will bring down you and your six-figure bureaucrat colleagues. And if you can courier it to me by our deadline this Friday, that would be great.

In the interest of making public bodies more accountable to the public, I remain, etc.

Sadly, it doesn't quite work that way. Right of access or not, the route to public records is fraught with obstacles, new barriers popping up just as others are cleared.

Virtually from the first request I ever filed, I learned that the legislation's 30-day "maximum" time for responding to requests is, almost without exception, in fact the minimum. It's been a long time since one of my responses came back in less than 30 days.

Sometimes they are a few days late. Often it's more like a few weeks.

Even more often, the public body extends the response time by another 30 days, as permitted under the act. While you can appeal the extension, that in itself takes time.

When a day is not a day

Then there was the Liberals' fiddling with language. In 2002, they passed an amendment that changed the 30 calendar day period to 30 business days. That added nearly one-third to the already-ignored time limit for responding.

Patience is a fundamental requirement in using the legislation.

Not all public records require the use of a freedom-of-information request.

For instance, under amendments made to the public sector employers act, the employment contract of any official in the public sector earning $125,000 or more annually is available on request. Rather, it's supposed to be.

On paper, it's a powerful requirement, implemented via amendments to the act that the Liberals passed in 2002.

If an official's contract contains a provision requiring that all or part of the contract is to remain confidential, that provision is void, says the act. Not only the contract itself, but any reports filed in relation to it, are available for public inspection, in the same way that they would be had a formal freedom-of-information request been filed.

But, public sector employers act or not, things are never quite that simple.

About nine months ago, I asked for the employment contracts, and related records, for several public-sector officials. Despite innumerable phone calls and emails, I have yet to receive the complete records.

The reasons range from "somebody needs to sign off on these" to "the records are not all in the same file," and so on.

But the provision sure looks good in principle.

Look but don't keep

For reporters covering municipal politics, one of the most valuable sets of resources are the campaign donation disclosure forms required from every city councillor following the election. If a developer looking for a rezoning handed over a whack of money to a candidate, that's the place to find it.

Last March, I asked for copies of the disclosure statements for the successful candidates in last November's race for mayor and council of Victoria.

"You can look at them, but you can't have copies," I was told.

Not for the first time, I politely pointed out that section 27 (7) of the interpretation act requires provision of copies of any public record. A few hours later, city officials changed their minds.

"You can have copies, but you may not be able to report anything from them," was the next obstacle. "Consult a lawyer."

So, as well as needing the patience of Job, anyone wanting public records needs access to legal advice. As it turned out, our legal advice was that we could indeed publish stories based on the records.

Still, it isn't supposed to be like this!

Another invaluable tool in a reporter's kit is access to the names of company shareholders. Until March 29, 2004, those names were considered public records. But the business corporations act effectively prevented ordinary citizens from having unrestricted access to the names. In particular, reporters could no longer write stories using information from those records.

Then, almost exactly two years later, last March, the government introduced amendments to the act that included restoring the unrestricted right of access.

Sometimes obstacles pop up for a while, linger, and then go away.

Your rights, or copyright?

Recently a new wrinkle has arrived for reporters hoping to make use of public records.

Earlier this year, using freedom-of-information requests, I obtained copies of the travel expenses of the senior ministers in the Campbell government.

Apart from a few minor deletions, the records were more or less intact.

But at the end of each set of records, came an ominous attachment.

"NOTICE OF COPYRIGHT," it read in bold capitals.

"These records are protected by copyright under the federal copyright act. Reproduction of these records or any portion of them is prohibited except as authorized by the copyright act."

More than a dozen requests I've filed with the provincial government have drawn responses that included the copyright notice, though others have not.

So. You file an information access request, wait the better part of three months for a response, only to receive the documents -- with a copyright notice.

Apparently even blank government forms are protected by copyright. One provincial official told me that meant that I could use excerpts from records obtained under FOI, but could not reproduce a whole document.

Somehow, that doesn't quite gibe with the freedom-of-information legislation's promise of giving the public a right of access.

Chilling effects

That fact didn't pass unnoticed by B.C. information and privacy commissioner David Loukidelis, who wrote to labour and citizen services minister Mike de Jong, the minister responsible for FOI, to point out his concern.

The copyright notice has also infuriated a number of activists.

As it turns out, the copyright act includes an exception for reporters, under the "fair dealing" provision. As long as the source and the author -- if given in the source -- are cited, fair dealing for news reporting does not infringe copyright.

But the chilling effect of the copyright notices, along with the other obstacles, makes one wonder if the provincial government has quietly changed the purpose of the FOI legislation to one of discouraging public access to government records.

More amendments to B.C.'s freedom of information law are still in the wings, perhaps to be introduced in the fall session of the legislature.

I can't wait to see what new obstacles will be thrown up by the Liberal government, some of whose members, while in opposition, promised to make all public records available without restriction, for the asking.

Russ Francis is a veteran Victoria reporter and researcher.

Related Tyee stories: Francis examined the B.C. Liberal government's record on transparency and accountability in a three-part series. Stanley Tromp dissected information shielding laws proposed (and then dropped) in the last session of the legislature. Ann Rees revealed how B.C. officials track and strategize about people seeking information from the government.  [Tyee]

22  Comments:

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  • Grumpy

    5 years ago

    Comments on "The Freedom of Info Maze"

    Knowledge is power and Campbell and his band of ne'er do wells know this. Campbell & Co.'s absolute power is chilling and the local media kowtow to him at every instance. Independant reporters are thwarted by the Kafkaish/Orwellian nature of a FOI. For a government that preaches freedom of this and freedom of that, they are certainly afraid of the truth.

    Mr. Campbell how many children under state protection died on your watch? Do you give a damn? Do you really care? Can't blame dead children on FastFerries but you can blame dead children on Olympic and RAV over spending! The tuth is out there but hiding the truth under mountains of bureaucratic mumbo jumbo is a good way to hide the truth!

    What are the good liberals afraid of? Certainly not the Asper Press or CORUS Libermercial programs, which kiss ass at every opportunity.

    FOI's are one of the last resort for an open and honest government and Campbell and his band of brigands are doing everything in their power to stop it!

  • Kam Lee

    5 years ago

    DELETED FOR POSSIBLE LIBEL. Tyee editor

  • scnnr_drkly

    5 years ago

    So if i wanted to know my MLA's position on this, what would be good questions to ask?

  • Percy

    5 years ago

    I can't see that the works described meet any definition of copyrightable material. See Section 5 of the Copyright Act. Claiming copyright in a document for the sole purpose of preventing fair public discussion is a tactic regularly used by the Scientologists. It's rather bizarre to see governments doing the same.

  • dorothy

    5 years ago

    Quote:
    "These records are protected by copyright under the federal copyright act. Reproduction of these records or any portion of them is prohibited except as authorized by the copyright act."

    -Eh, say that again?

    NoNoNo, this has got to be super-unconstitutional. Good try, but it ain't possible. Records of factual information does not qualify as intellectual property, nor does the records of the doings of a public official, in regard to how he carries out his public office, qualify for any kind of protection of 'privacy'. This is total hogwash, and I sincerely hope somebody will take it to the supreme court.

    Blank forms - it would depend on what kind of use one would make of them. It is not the reproduction of a piece of paper, which is 'kriminal', but it only becomes so, if one uses it to make a fals representation in order to unlawfully obtain goods/services/benefits/powers one has no right to.

    This reminds me of the idea of forbidding to scan or copy money or other such things. Who cares, as long as they're not presented in place of the real thing?

    There is the old saying, that one cannot stop the birds from flying over one's head, but one can stop them from building a nest in one's hair. The mindset expressed in these prohibitions is, that one should kill all the birds so as not to risk anything. Let us all grow up right now.

    In this case, it is ,oh, so self-serving to those who abhor openness, accountability and scrutiny by those whose hard-earned money they spend. I hope 'shame on them' is not considered potentially libellous by the Tyee gurus. This caution is creepy. Are they being leaned on???

  • gaulois

    5 years ago

    This article was quite awesome. Am glad that someone could look at this without mentionning good old Orwell.

  • IAMC

    5 years ago

    I think anybody should be free from frivolous attempts to tie us up with endless requests for information.
    It's up to someone to sort this out.
    I guess somebody has.
    The rights of scrutiny come with ownership, and we are all owners.
    It's a difficult opportunity we all have, to make sure there are not too many goofy RFI's.

  • mightyfastpig

    5 years ago

    Another reason for copyright reform. Great article.

  • massromantic

    5 years ago

    sigh
    this sort of thing is one of the major reasons i quit journalism.
    too much bullshit and not enough ambition to play along, cut through, or work around it.
    it's just not what it used to be, and that's a huge huge shame.

  • geezer75

    5 years ago

    Quote:
    About nine months ago, I asked for the employment contracts, and related records, for several public-sector officials.

    Doesn't this fall under 'send me the embarrassing stuff you have' catagory?

    If my memory is correct, generals of the Canadian military, ranks of brigadeer and above, receive what as know as "merit" pay - which is in addition to the ordinary pay scale of the particular rank. This is an individual bonus type of pay and is based on how well each does his job as well as his responsibilities. Conceivably then, a general could be making almost as much as his next higher rank. Of course this information is guarded very closely because of the dissention it could cause.

    Freedom of information can be a double-edged sword - although it can certainly make good press. Possibly it could be limited to anything that a student can write a term paper on - or a genealogical nut.

  • BC Dude

    5 years ago

    What Campbell is doing about FOI is just a start of "BIG BROTHER" taking over (Orwell 08).
    We, the People of this Great province, BC are 3+ million strong we (for how long?) still have a huge voice & legally we should be able to boot these Thugs out of power!
    Basi, Verk, etal nothing in media why?
    NDP Glen Clark & sundeck (scandal lol) was in media for weeks, plus RCMP went on a witch hunt in Clark’s house.
    Same as Gordo’s Health Minister Penny Ballem’s resignation over Gordo’s cannibalization of OUR health care system and nothing in media, Why? Penny Ballem should be made a hero of and for the people she has the moxie so should we!

    Why are Harper & Bush meeting?
    Not to talk about Iran or N Korea as N Korea is years away from any long range missiles then they have to figure out how to carry a warhead, it's just a ploy to distract the masses "US" from the real issues.
    No, it's to talk about making Canada, USA, & Mexico into one North America & easier to control just like the EU, one dictator one military, one Police Force, wake up!
    We are 30+ million people in this once Great Nation under real Democracy, do we still have a voice?
    Now almost owned and operated by Big Corporations ie big military suppliers of death.
    Consummerizzzzim is a dead end, stop being led down a path of Visa Debit

    "It is dangerous to be right in matters on which the established authorities are wrong.": -- Voltaire - [François Marie Arouet] (1694-1778)

    Make yourself sheep and the wolves will eat you." -- Benjamin Franklin

    DO NOT KEEP SILENT when your own ideas and values are being attacked. ...If a dictatorship ever comes to this country, it will be by the default of those who keep silent. We are still free enough to speak. Do we have time? No one can tell." -- Ayn Rand, Philosophy

  • Colin

    5 years ago

    My office gets a fair number of “Access to Information Requests” (ATIP’s) Pretty much all of us here support the purpose of the Act and try to make sure everything is included. The advice I will give as was noted in the article, know sort of what you are looking for. The shotgun approach rarely works well and can be quite expensive.

    Ask for documents not in the public domain: In other words you don’t want to be paying for 5 copies of a document that is posted on a web site free for downloading and your average ATIP may be sent to several departments all with the same documents on file.

    Giving a timeframe can help reduce the size and cost to you of the response, so if you think an event regarding the decisions made on a particular subject. occurred on March 21st, ask for relevant documents within a month on either side rather than any document that references that general subject which will require a large amount of time and money on both sides.

    I personally believe that the Access to Information is a critical piece of legislation that helps keep governments honest.

    From a user perspective how does the provincial vs the Federal system compare?

  • sdgreen

    5 years ago

    The question is that has to be asked is access to government information being abused by types like Russ Francis?

    While research for a valid reason is logical, it seems to me that the press and some others are indeed using the measure to dig up dirt on the government. Rarely do you see reporters actually using information gathered to deal with the good merits of the issue.

    The Freedom of Information Act has spawned a whole new army of public servants costing the taxpayers millions of dollars. These costs are only partially recovered. The other issue is the matter of time it takes to find the information requested. In a good number of issues, the 30 day period is almost impossible to achieve.

    While it is important to be provided with information, the colossal number of requests quite frankly is a waste of time. Why reporters just rely on printed sheets of paper is beyond me.

    What ever happened to the "Jack Websters' type reporter who used his personal touch to get information from the actual people involved in the story!

  • Alcibiades

    5 years ago

    Colin,
    Why isn't the default position that everything is open to the public? I understand that's the way they do in countries like Sweden. Why should either public servants, or politicians, be ashamed or afraid of having any and all of their work made public. Obviously, privacy concerns would mean blacking out names and addresses but, apart from that, I can see no valid reason for secrecy. Once a contract has been let why shouldn't the public (and all competitors) have the information about the bidding and qualifying processes?

    If the taxpayer is paying the freight then the taxpayer has the right to know and there would be less back room bs all round.

    Given the internet and the obvious incompetence and unwillingness to actually confront and report of the press it seems pretty logical that the Swedes have it right and we have it wrong.

  • dorothy

    5 years ago

    Alright now! The Swedes are bearers of a long-standing tradition of equality, while we here are paternalistic. We hear stuff like things could be taken out of context, lesser people could be out in a 'non-legitimate' quest for 'dirt-digging'. Both our public and private establishments are beset by a good deal of rank-ism, and to overturn that, you are asking for nothing less than a total cultural shift. I am not saying it can't be done, though, but we must keep chipping away at it, for these things are a two-way street. We have not the right, as members of the public, to remain mum and then boil over in some kind of riotous outburst, when we get too ticked off by the arrogance shown by those who do not realize from where their power derives. It is our job to voice criticism of high-handedness and abuse of power, and so we may, in time, affect real progress.

  • Alcibiades

    5 years ago

    Absolutely agree Dorothy. Funnily enough though, I don't even see the current crop of elected officials as even mildly avuncular, let alone as appropriate father figures. In fact, quite the contrary, it would seem that the inmates have taken over the running of the asylum and a group of sociopaths, moving out of their normal business haunts, are utilizing the levers of power quite secretively and for their own selfish purposes.

    Those political parties that feel equality and real access to information for all ought to make it part of their election platform and then, when they gain power, such a government could not let itself be bought off by bureaucratic niceties. In the meantime, since the press appears perfectly inured to continuing with things more or less as they are, it's time for ordinary folks to speak up directly to their MP or MLA. Enough of that kind of activism and someone will eventually get the message.

  • IAMC

    5 years ago

    How much does Jim Sinclair make as head of the BC Fed ? Where does Carol James live ? Can I get Gordon Campbell's cell phone number ? What kind of car does Jinny Simms drive ? These are questions I have. Why do I have the right to ask these questions? Because I pay for these people through my taxes.
    Reporters don't care, they are useless and lazy. I think FOI has gone way too far.

  • G West

    5 years ago

    IAMC
    I think you miss the point, as usual. With the possible exception of data about Jim Sinclair's salary - which I'd expect is readily available for your curious scrutiny; the other information you apparently want is private and should not be divulged. I'm sure it wouldn't be difficult for you to find out where Ms James lives but I certainly wouldn't criticize her for wanting to keep that information private as well – especially from persons such as yourself who are curious about such matters. If that, and the other questions you cite, seem important to you have just disclosed another reason to question your sanity.

    Apart from that, you clearly haven't got a clue.

  • Colin

    5 years ago

    Alcibiades

    I guess there hasn’t been much of a push for it. Whatever party gets into power, has little interest in it’s mistakes being made public. Plus there is a huge cost to doing so. With the advent of computers, there is a huge amount of information wandering around, if it all was made public it would require a large department to do so.

    I think reducing the limitations on the current access Acts and more posting of critical documents is required. I find the resistances to openness starts around the middle senior management. At the field level there is desire to be open and honest for the most part.

  • Alcibiades

    5 years ago

    Colin
    I'm sure that's true - that most lower-level bureaucrats would much rather be open about things. It would, after all, protect them too from the shenanigans of senior management. Screw 'em I say; they're public servants too. If they don't like it, they can take a hike and get a job with Harmony Airlines. We're always being told what sacrifices senior political appointees are making to leave their highly paid jobs in the private sector. My view, they aren't really making any sacrifice since they step into sinecures the minute they resign anyway. If they fear openness, they ought not to be in the public service.

    I think the BC Public Service used to be one of the most professional and dedicated in Canada. It's high time we got rid of some of the politically appointed scum at the top and turned it back into a service that can be both open and proud of its values and its professionalism. The government with the jam to do that would be doing the government and the people a real service and not just paying lip service to something they neither believe in not care about.

    I think you may be right about the costs of retroactive openness but, as you say, it could start anytime and proceed from there.

    On the other hand, why not just make everything wide open, put it all online (over a period of years) and ‘Bob's your Uncle’ from then on. I don't think it would cost an arm and a leg and there'd be no more need for FOI as a separate operation - except to ensure privacy for individuals, obviously.

  • blueswag

    5 years ago

    Has anyone tried visiting a Justice of the Peace to lodge a(Non-Political!!) complaint under #337 the of Criminal Code of Canada?

  • rlbolin

    5 years ago

    The Napoleonic code presumes guilt in facing the law.

    Since when did we adopt the Napoleonic code in dealing with information? How did we get to a state whereby information is presumed to be privileged until the bureaucracy allows us to have it. Under our previous common law system where the citizen is presumed innocent, governments should have to file –and quickly- any reasons why the information should NOT be provided.

    We have allowed the world to be turned on its head.

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