'Opening up Government' Proving a False Promise in BC

Premier Christy Clark portrays herself as a champion of open government, but after her first year in office the government she leads appears to be attacking the law that governs how information can and can't be shared in the province.

"This is starting to be a pattern," said Vincent Gogolek, the executive director of the watchdog group Freedom of Information and Privacy Association. "This is a huge grab. It's a power grab. We should be concerned as citizens and the legislators should be concerned."

Last week the province's Information and Privacy Commissioner Elizabeth Denham wrote three letters to different cabinet ministers criticizing bills the Clark government has introduced to the legislature for debate.

The bills cover topics as diverse as animal health, the PharmaCare drug program and the rights of emergency responders. In all three cases Denham has questioned how the bills contradict and in some cases override the Freedom of Information and Protection of Privacy Act, a law adopted 20 years ago with the unanimous support of MLAs.

The FIPPA balances the public's right to know what their government is doing with other considerations including people's right to privacy and the need to keep certain information confidential, Denham said in an interview.

"The balance in the statutes has long been established and it should only be altered after thorough public consultation and discussion," she said. "In my view the government has not looked thoroughly enough at the existing law and communicated to the public why the existing balance isn't going to work."

She said she doesn't see her concerns about the three pieces of legislation as a trend, but added, "These are fundamental rights of British Columbians, personal privacy and access to information."

Families first and open government

It's sharp criticism for a premier who along with the jobs plan and "families first" has made "opening up government" one of her flagship policies. The BC Liberal Party website sums up Clark and the government's focus this way: "Standing up for B.C.'s diverse families, focusing on good jobs in the private sector and opening up government."

In a 2011 year-end report, Clark said, "Open Government is about giving people a sense of confidence that government is working for them, not trying to do something to them... We are working to make British Columbia the most open provincial government in Canada."

The site counts as successes the establishment of an auditor general's office for local government, the release of 2,700 data sets and the posting of quarterly reports via webcast.

The government's recent bills, however, seem to be moving in the opposite direction. The Tyee reported last week that Commissioner Denham had written to Health Minister Michael de Jong on May 1 about the Pharmaceutical Services Act to say she has "concerns about the reduced transparency of government's decision-making and the infringement of personal privacy that will result from this Bill."

Much of the bill leaves details to be set by regulation, which in an interview Denham said is "a concern because the public doesn't know how the minister of health is going to collect or use information that's in PharmaNet."

The minister has said the intent is to make it easier for medical researchers to use data from PharmaCare, with information that identifies individuals removed, to do work that could improve care and health. But Denham said section 35 of the FIPPA already allows disclosure for research purposes and adds that as long as privacy is protected, "I think there should be more medical research, not less medical research."

The government could either include in the act the detail of what it intends to do, or leave it to be governed by the FIPPA which already does the job, she said.

Salmon farm data released over gov't objections

Two days after writing de Jong, she wrote to Agriculture Minister Don McRae with concerns about the Animal Health Act and to Labour, Citizens' Services and Open Government Minister Margaret MacDiarmid asking her to withdraw the Emergency Intervention Disclosure Act.

The Animal Health Act would "remove the public's right to access various records regarding animal testing, including actions and reports relating to animal disease management," Denham wrote.

The move seemed to be a response to a 2010 order the commissioner made for the ministry to release the results of random audits related to the presence of disease on salmon farms, she said. The T. Buck Suzuki environmental organization had requested sea lice data and information about other pathogens on fish farms that the government fought against releasing.

"This is a matter of deep concern considering the importance of disease management measures, and the need for openness and accountability in the monitoring and enforcement of such measures," Denham wrote. "Though it may be in the interest of your ministry and of farmers to protect test data in the ministry's possession from disclosure, it is not clear how the public policy interests carefully balanced in FIPPA are served by a blanket override of this nature."

Finding privacy balance

Denham's concerns with Bill 39, the Emergency Intervention Disclosure Act, were slightly different, though they fit the pattern of a change in how the government balances privacy with the release of information.

The bill would allow police officers, firefighters and paramedics who may come into contact with other people's bodily fluids to get a legal order compelling a person to provide a sample for testing if one is not given voluntarily.

"Bill 39 subjects individuals to a process of looking for disease that is highly privacy invasive while providing little to no demonstrable benefit to the emergency responder," wrote Denham to MacDiarmid.

"Removing an individual's right to control their bodily integrity is the most intrusive form of privacy infringement," she said. "Any initiative that limits this right must strike a balance between the reasonableness of restricting an individual's liberties with the commensurate need to infringe them. I do not see such a balance with Bill 39."

While Denham acknowledged it's been a busy time with so many bills coming forward and only 12 sitting days left before the legislature recesses for the summer, she said she looks at each bill separately.

"From my point of view there are problems with these three pieces of legislation," she said in an interview. "I don't think there's an overall trend. From my point of view I have a problem with three pieces of legislation that happen to be before the House at the same time."

The commissioner's office can and does review legislation for the government before it comes to the House. Denham said confidentiality prevents her from saying whether her office consulted on the current legislation, but said, "Our comments on previous legislation have been considered and the government has made amendments based on my comments."

A government official said all three pieces of legislation had been reviewed by Denham's office before they were introduced.

'A matter of basic democracy': FIPA

FIPA's Gogolek said there does seem to be a pattern of legislation being brought to the House that's at odds with the Freedom of Information and Protection of Privacy Act. "We have a number of different ministers following the same approach," he said. "That's three different ministers heading down this road. I don't think they got there independently."

Even with FIPPA it can be hard to get information out of the government, he said. Delays are common, and his organization has been fighting to get records on one request for more than seven years, for example.

"It's really getting to the point you have to wonder if they're unhappy that it's working at all," he said. "Essentially every piece of legislation seems to have this sort of [override] provision in it now."

FIPPA enshrines in law the public's right to know what the government is doing, and defines under what circumstances information can be withheld. "If you have rights the government can unilaterally suspend, you don't have any rights," he said. "This is a matter of basic democracy."

It's sneaky to erode FIPPA's reach the way the government is with sections buried in other acts, he said. "If the government has a problem with the principles [of the FIPPA], they should have that debate in the legislature," he said.

NDP sees 'bad pattern'

Minister MacDiarmid said that the government has respect for Commissioner Denham, and that the ministers responsible for each piece of legislation should be the ones to talk about the provisions in each.

"Freedom of information and protection of privacy is important to us and we know it's important to British Columbians as well," she said.

She denied that creating exceptions to the FIPPA is an indication that the government dislikes having to comply with the act. "We have very strong legislation and we do have a good relationship with the commissioner as well," she said.

Asked about the perception that the government appears to be deliberately attacking FIPPA, she said, "I think that's a misrepresentation of what's happening."

NDP MLA Doug Routley, the critic for open government, said there's a "bad pattern" in the three pieces of legislation.

"It flies in the face of the open government commitment," he said, a problem compounded by the speed with which the bills are being made into law that allows little time to consult stakeholders. "When it comes to the real making of government policy... there's zero consultation."

The NDP agrees with the general intent of all three acts, but has concerns about the sections that affect privacy and freedom of information, he said. The party may propose amendments to them when the time comes during debate, he said.

He said he agrees with Denham's criticisms of the bills, and that the FIPPA has provided a clear framework for access to information. "The problem isn't with the legislation, the perceived proscriptive nature of the legislation, it's with the lack of understanding of how to apply the legislation," he said.