How B.C.'s Government Tracks, Stalls Muckrakers

Editor's note: In a Vancouver Sun report March 20, free-lance reporter Ann Rees exposed the Liberal government practice of providing its communications advisors with the names of individuals who file Freedom of Information requests for records which might prove politically embarrassing. In this exclusive report for The Tyee, Rees further reveals which government officials are kept in the know, how a $425,000 computer tracking system operates, and how Rees herself was targeted for looking into the safety of those under government care.

The provincial Liberal government has put Freedom of Information under surveillance in order to protect its political image.

B.C.'s Freedom of Information and Privacy Act was introduced 11 years ago to allow citizens a window into government activities so that they may scrutinize its actions and hold it accountable.

But confidential "Advice to Minister" notes show the FOI process in B.C. has been twisted to serve as a communications tool, which allows government to scrutinize the FOI activities of law-abiding citizens who intend to hold it accountable.

The 65 communications notes obtained under FOI show spin doctors, using a sophisticated surveillance system, routinely track and review potentially-damaging requests.

All requests from media, anyone working for the Opposition, lobby groups, and others, who might use records to embarrass government, are automatically flagged as "sensitive" on the government-wide database.

Records deemed politically dangerous are reviewed by Liberal spin doctors prior to releasing them to the requester.

Delays are inevitable - with requests flagged as "high" sensitivity taking almost twice as long to process and release.

In addition, troublesome requesters are often identified by name and brought to the attention of the minister responsible, a breach of privacy protections in the Act.

And the entire exercise has the blessing of cabinet ministers, and the Office of the Premier through its Public Affairs Bureau (PAB) which designed and operates the communications FOI surveillance system.

Spokespersons for the Premier did not respond to repeated requests for comment.

Meanwhile, the Office of the Privacy and Information Commissioner launched an investigation following complaints from several requesters, including this reporter, who were identified in the confidential communications notes.

How FOIs are monitored

Here's how the FOI surveillance system works: Sensitive or politically contentious requests are weeded out through an FOI monitoring system which begins at the ministry which receives the request.

Each ministry logs its FOI requests into a government-wide electronic database called the Corporate Request Tracking System (CRTS) which automatically enters the sensitive flag for targeted categories of requesters such as media.

"There are a bunch of categories and we would check a sensitivity level," said Sharon Plater, director of the Corporate Privacy and Information Access Branch (CPIAB) which operates and maintains the CRTS database for the Ministry of Management Services.

"Our criteria are, if it is media, if it is a political party, lobby group or something we are aware of that is in the media - we would check it as sensitive," said Plater, who said the practice has been in play since 1993.

Additional warning flags may also be entered into the CRTC database by the ministries which receive the requests - designating them as being of low, medium or high sensitivity for the government, according to Plater.

Requester names are not entered into the database, but are available to communications officials through the ministry which received the request.

"The ministries, within themselves, they have their own channels of communication and because they receive the request they would have access to the names," said Plater.

International FOI expert Alasdair Roberts recently reported that the CRTS database used to track FOI requests, with its sensitivity ratings puts B.C. in the "vanguard" of governments which have developed computer programs to track FOI requests.

The CRTC system cost $425,000 to develop and was installed in 2000 under the then-NDP government. It is an upgrade of the 1993 tracking and monitoring system, said Plater.

Spinning a girl's death

The electronic database was introduced as a management tool to help ministries manage the processing of the thousands of FOI requests received
each year.

But the database also serves as an effective surveillance tool for government communications departments, allowing spin doctors to review the records and prepare soothing scripted responses for the minister before the records are released.

The recommended script is often less than candid.

Former Children and Family Development Minister Gordon Hogg was advised to gloss over damning information which had emerged during a review concerning the death of a girl who died while in the care of his ministry.

The August 2002 note warned the minister that the records would show that the internal review found fault with the girl's care, including "a lack of documentation, weakness in case consultation and inadequate follow-up,"

"The Deputy Director's Review found this may be indicative of insufficient supervisory support and inadequate tracking systems," the note said of the records which had yet to be released to the reporter. Communications had by this point been monitoring the request for almost three months - first creating a file on the request on May 31, 2002.

Hogg was not to mention any of this. Instead his script called for him to simply acknowledge the girl's death "is a terrible tragedy."

He was then to launch into damage control for his ministry:

. "We take all reports of possible child abuse or neglect very seriously," reads the Advice and Recommended Response.

. "As with all child deaths in BC, a deputy director's review was done and may be obtained under the Freedom of Information and Protection of Privacy Act.

. Child Protection Audits are also routinely undertaken to monitor the effectiveness of the ministry's response to its high volume of timely, quality services. The results of these audits are available on the ministry's web site."

Hogg, who has since resigned as CFD minister, refused to comment.

B.C. alone passes on requesters' names

The sensitivity rating appears to mean delays of, on average, twice as long, according to Roberts' December 2003 study, and there is little question that political concerns are a factor in determining the degree of sensitivity.

"Much of the most sensitive material relates to the core policy making activity of government," reported Roberts, who directs a public affairs institute at Syracuse University in New York State.

Requests for polls, minister's travel, briefing notes, budget materials and policy issues -information often targeted by media or the Opposition - were most likely to be flagged as sensitive by the CPIAB. Roberts' study showed all requests for budget information were flagged as "high" sensitivity on the CRTS database.

While communications surveillance of FOI and Access to Information requests is increasingly common in Canada, no other known jurisdiction passes along the names of the requesters.

In B.C., the breach of requesters' personal privacy is not only common, but also approved at the highest levels of government.

The communications notes are signed off and approved by high-ranking officials in the ministers' offices, the Premier's Public Affairs Bureau, deputy ministers and assistant deputy ministers. Also in the loop are program area officials who gather and process the records, and FOI officials.

But B.C.'s top public servant seemed unaware of the practice.

"Thank you for bringing this to my attention," Ken Dobell, deputy minister to the premier and cabinet wrote in an email response to questions on Feb. 22, 2004.

"Speaking personally, those who request FOI information are never identified in the requests that are directed to my office - indeed, sometimes I wonder who could be interested," wrote Dobell.

Names on the list

But there appears to be no shortage of interest. The communications notes obtained under FOI show at least a dozen requesters were identified by name during an 18-month period ending June, 2003.

My name was one of those identified in the confidential communications notes. Also named: Daphne Bramham of the Vancouver Sun, Myke Clark and Duncan McCue of CBC, David Carrigg of the Vancouver Courier newspaper, Russ Francis formerly of Monday Magazine, and Canadian Press reporter Steve Mertl.

As well, Vancouver Sun reporter Kim Pemberton struck raw political nerves with a series of requests during 2002 and 2003 to the Ministry of Children and Family Development, and to the Health Services ministries. Her name was featured in the title of several confidential
communications notes on her requests.

Opposition party requesters identified by name included NDP caucus researcher Paula Gunn. Former NDP spokesman Bill Tieleman was also identified by name as "a consultant with ties to the former government and does a regular commentary panel for CBC radio."

Tielman, who was an aide to NDP Premier Glen Clark, has declared the practice of identifying critics "reminiscent of Richard Nixon's 'enemies list.'"

"During my time as communications director in the office of the premier in 1996," Tieleman wrote in his column last week for the Georgia Straight, "I was occasionally made aware of FOI requests that might prove sensitive but there was no identification of requesters."

Do reporters deserve 'personal' privacy?

But a spokesperson for the Premier's public affairs bureau defended the practice - citing the FOIPP Act as justification. Judy Brachman, director of communications for the Ministry of Management Services, referred to a section of the Act which allows personal information such as names to be revealed if "necessary for the performance of the duties of, or the protection, health or safety of the officer, employee or the minister."

She explained that public affairs spin doctors need to know the names of requesters seeking potentially embarrassing records in order to perform their duties of preparing and protecting the government.

"Where information may have an impact, or result in questions from the news media, it would be part of a communications professional's responsibility to make ensure that they are aware of questions that may arise," said Brachman, whose ministry is responsible for the administration of the Act.

She argued that the practice of identifying reporters is further legitimized because the government regards professional requesters, such as reporters, as corporations rather than people whose privacy rights must be protected.

"Where the requester is part of making the request on behalf of corporate business, that information can be disclosed."

Brachman insisted that communications officials do not interfere with the processing of the records for release, a task assigned to politically neutral civil servants.

Previous government disclosed FOIs, not names

Information and Privacy Commissioner David Flaherty first raised concerns about communications involvement in the FOI process in his 1996-1997 annual report.

Flaherty launched an investigation into such breaches of privacy following a complaint by FOI researcher and reporter Stanley Tromp. The then-NDP government assured Flaherty that requesters' names were not disclosed to communications advisors.

"The Commissioner's Office investigation revealed that it was not the Ministry's practice to routinely disclose applicant's names. Further, although the Deputy Minister was routinely advised when a member of the media had made an access request, only the substance of the request was provided, not the name of applicant," Flaherty concluded.

But that is no longer true. Today, names of applicants who request sensitive records are provided to communications spin doctors, when deemed politically necessary.

Tromp, whose complaint triggered the commissioner's investigation, was identified by name in a 2002 confidential communications memo written for the attention of Liberal cabinet minister Kevin Falcon. The minister's office did not respond to an emailed request for comment.

The memo is titled "Stanley Tromp's FOI request to Deregulation Office," and explains that the request has been delayed for almost a year and that the records had been heavily-censored because of cabinet confidentiality protections in the Act.

Official: New privacy act makes it ok

Meanwhile Plater, whose ministry sets the standards in government for the administration of FOI, defends spin doctor's need to know the names of individuals who make requests for "sensitive" records.

Like Brachman, Plater claims that these individuals are not entitled to privacy protection because they are often making requests as part of their profession.

"Usually with the names of businesses, MPs or media etc., most public bodies don't consider that to be personal information because it is used in a business context," said Plater whose branch sets government guidelines for processing of requests.

Plater, one of the government's leading experts on FOIPP, could not cite any section of the Act to support the reclassification policy. "It is not specifically stated in the FOI Act," she admitted.

Instead, Plater used a hypothetical example to explain the government's rationale.

"So I'm Sharon Plater and I'm representing Cosmos newspaper or something. That would be considered my business identity," she hypothesized. "And therefore it doesn't have the same unreasonable invasion of personal privacy content to it."

Plater then cited the new Personal Information Act, which governs the private, rather than public sector.

"We have put that in there," she said of the new Act which her branch helped draft. Commercial requesters' "contact name, contact address, is not considered personal information."

Ironically, the Personal Information Protection Act was implemented in January in compliance with federal regulatory requirements aimed at curtailing unauthorized dissemination of personal information by private sector businesses.

Both the public and private sector privacy laws require that an individual consent to having their personal information used for any reason or purpose other than that for which it was provided. They must be informed of any other purpose.

But individuals who file sensitive FOI requests in B.C. are not told that the personal information they provide will be passed on to spin doctors. Nor are they told that their requests will be reclassified as commercial, meaning they lose their right to protection of private
information.

Health and safety queries often tagged

Unknown to me at the time, my name was brought to the attention of former Children and Family Development Minister Gordon Hogg in a 2002 minister's memo.

The FOI request was for health and safety inspection reports filed by a private agency, called Provincial Monitoring Group, which was under contract to conduct routine inspections of government-funded group homes.

The memo begins: "Under an FOI request the MFD is releasing information to Ann Rees of the Vancouver Province newspaper," where I was then working as a reporter.

It is clear a number of ministry staff, other than FOI officials, reviewed the records. "The records to be released had been reviewed both by "FOI representatives" and by "MCFD staff," reads the confidential memo, dated June 26, 2002.

Not only did the ministry track requests which I had filed to MCFD directly, it also tracked related FOI requests which I had submitted to Regional Health Authorities which operate separate FOI systems - logging my legal activities across different levels of government and flaggingthem to the attention of the minister.

Many of the other flagged requests received under FOI concerned issues of concern to the health and safety of vulnerable individuals living under government care and protection.

In addition to the young girl who died while in the care of the MCFD, the requests singled out for communications scrutiny also included information about the death of a mentally-handicapped individual living in a government group home, inspection and incident reports for a number of group homes and seniors facilities, and annual reports concerning the health and safety of young offenders incarcerated at the Burnaby Youth Secure Custody in Burnaby.

Under the Act, information of concern to public health and safety has to be released immediately, whether or not an FOI request has been received. To delay release of these requests for any purpose goes against the overriding principle of the FOIPP Act which states "the public interest is paramount."

In essence the Act allows the government to manage its public image, but it may not do so at the expense of the public interest. Political interest does not trump the public right to know.

Veteran reporter Ann Rees is coordinator of the Journalism Program at Kwantlen University College in Langley.