How to Revive an 'Eviscerated' Freedom of Info Act

A special committee held two days of public consultations this week on British Columbia's freedom of information and protection of privacy laws. The dozen MLAs heard a long list of concerns, most of which will be familiar to regular users of the province's FOI laws.

Several presenters pointed out that legislation that was considered groundbreaking when Mike Harcourt's NDP government introduced it in 1992 has since fallen behind other jurisdictions. It has been weakened over the years and the government has ignored many of the suggestions to improve it made during earlier reviews.

Here's how Darrell Evans, the executive director of the Freedom of Information and Privacy Association, put it in his Feb. 2 comments to the committee in Vancouver, according to the draft of Hansard from the hearing: "I can tell you that we can say with some authority that the act has not fared well over this 18 years, that B.C. has fallen behind, in many ways, other legislation around the world and really is now lagging behind in providing open government, transparency and privacy protection to its citizens."

He used words like "eviscerated" to describe what had been done to the act by successive governments, and there was plenty of blame to go around.

"This committee is composed of both NDP and Liberal members, and one of the facts you need to hear is that freedom of information has suffered under both NDP and Liberal governments," he said. "The effort to eviscerate the FOI Act and make it progressively more difficult to use began seriously under the NDP administration in 1998.

"These efforts were greatly increased and became much more sophisticated under the Liberal administrations of the last decade. Just lately we've started receiving reports that the situation has grown even more difficult for our sturdy citizens who are able to make FOI requests and still remain standing."

Sophisticated denial

Responding to a question from Doug Routley, the NDP MLA for Nanaimo-North Cowichan, the committee's co-chair, Evans elaborated on the "sophisticated" methods for denying and delaying access.

"First of all, the burden on individual FOI managers is huge," he said. "It's estimated to be four times what it should be. Ditto the Information Commissioner's office. So the first method used is by under-funding the whole process within government and with the Information Commissioner."

If you fight the government's refusal, if you go about it "kicking and screaming," the government's decisions often get overturned, he said. His organization has been trying to get the Citizens' Services contract with IBM for five years and has been long delayed in getting the Maximus contract with the health ministry as well, he said. "At the end of the day, we found that going through a four- or five- or six-year process, very little is actually going to be withheld," he said.

Many of the recommendations the organization had for the committee were similar to ones that he'd raised six years ago at the last review, he said, several of which were accepted by the committee at that time.

"The six years between the committee reports have seen problems with certain parts of the act escalate into what can only be called a crisis," he said. "If action is not taken soon, we really risk that the FOI and privacy rights of citizens become irrelevant, and that's something that we really don't want to see happen."

Areas to improve

Vincent Gogolek, FIPA's policy director, laid out the organization's recommendations for improving access to information. They included:

1. Obliging government officials to create records and introducing penalties for times when records have been improperly destroyed. "There can be no public access to records if records are not created," Gogolek said. "Unfortunately, an oral culture is growing in government as officials choose not to record sensitive information or delete it as soon as possible."

2. A "day" should again be a day. Public bodies used to have 30 calendar days to respond to a request. In 2002 that was changed to 30 business days. "We recommend that it be changed back to the normal Interpretation Act definition for all other statutes," said Gogolek. "That it go back to being a calendar day from a business day."

3. Public bodies may give themselves an extra 30 business days to respond to requests and they can request an even longer extension from the commissioner's office. In both cases, said Gogolek, there needs to be a practical way of scrutinizing or reviewing the decisions.

4. Fees should be waived for any response that is not provided in a timely manner, he said. The first special committee that reviewed the act, in the late 1990s, made that recommendation, he said. "We thought it was a good recommendation then, and we agree with it, and we support it now."

5. There needs to be more incentive for public bodies to respond to requests without delay. "What is clear is that this statutory duty is not being met and that there are no negative consequences for the head of a public body who does not carry out this duty," said Gogolek. "A duty is not discretionary or subject to whim or budget constraints. It's a duty. The pattern of delay clearly indicates that this duty is not being taken seriously and that the time may be at hand to implement penalties for a head who fails to carry this out."

6. Government outsourcing has created a "major problem" for transparency, he said. While not commenting on whether it's the right way to deliver services, he said, "Any reduction in the act's coverage of institutions that are funded by taxpayers reduces transparency, accountability and democracy." He also pointed out that reduced scrutiny can lead to situations like the "enormous" salaries at B.C. Ferries, a body no longer covered by the FOI act. "We really have to wonder, if B.C. Ferries was still under this act and subject to FOI requests, whether those running the corporation would have seen fit to give themselves bonuses and salaries that are so far above the norm for the public sector."

7. Private companies owned by public bodies need to be covered by the act, he said. The issue arises out of a court decision regarding a company Simon Fraser University set up. The B.C. Supreme Court last year agreed with SFU that the company is not covered by FOI legislation, despite the fact it is owned by a public institution. The case is now in front of the B.C. Court of Appeal. "If this decision stands... it gives the ability of every public body in this province that has enough money to go out and set up a shell company to do that," Gogolek said. "If there are records they don't want you to have, they can do it for specifically for that purpose, and you will never see them; nobody will see them."

8. The section of the act that protects cabinet confidences should be narrowed, Gogolek said. The substance of cabinet deliberations should be protected, but its interpretation has been taken too far to include even the research documents that deliberations are based on, he said.

9. The section of the act mandating the release of information that is in the public interest has to be more broadly interpreted, Gogolek said. "The very high -- we'd say unreasonably high -- standard is now that information must be urgent and compelling before it can be released," he said.

'Act rendered impotent'

Vancouver freelance reporter Stanley Tromp spoke on behalf of the Canadian Association of Journalists. He noted that he appeared before similar committees in 1998 and 2003. "No major positive amendments resulted from those committee reports," he said. "Although I believe you mean very well, can you provide any cause for hope that the political results will be different this time?"

Tromp made 67 recommendations, covering in his words "every B.C. FOI topic from A to Z."

He argued for proactively releasing more documents and putting more resources into the offices that handle FOI requests. "In response to the common governmental complaints of the cost to taxpayers of the FOI system, one could well argue the reverse is true, because public outrage at government waste exposed through FOI requests prompts the state to cut such waste or even prevent it before it occurs. Hence the modest annual cost of FOI may be an impressive bargain."

For its second day of hearings the committee moved to Victoria. On behalf of the Canadian Centre for Policy Alternatives, Keith Reynolds spoke to the committee. "Unfortunately I think the main feeling people would have when approaching this legislation is a feeling of cynicism," he said.

It can routinely take two years to go through the process and there's no guarantee records will be released in full, he said. He called it "unconscionable to wait three or four years for something deemed in the public interest" and aruged that there should be an expedited process for releasing records in the public interest.

He described what's happened to the FOI process as an "incremental undermining" and argued for increasing the resources for both the ministries and the commissioner's office.

Morgan Blakely spoke to the committee on behalf of the Dogwood Initiative and the Environmental Law Centre at the University of Victoria. He spoke against high fee estimates, "illegally slow" response times and called for more routine release of records.

"The act has been rendered impotent," he said. "Without forceful changes the decline will likely continue."

Committee chair Ron Cantelon said the committee is extending the deadline for submissions from the end of February to March 15. It will report its findings by May 31, then it will be up to the government to decide what to do.