BC Gov't Withholds Report on Inappropriate School Executive Pay

The British Columbia government recently withheld a finance ministry report about inappropriate pay for executives at a public institution from publication on the province's website, a move observers said sets a "novel" precedent that increases secrecy.

The government made the report on compensation at Kwantlen Polytechnic University available to reporters on request when it was released earlier in June, and media were free to publish it on the internet as The Tyee did, but the press release cited freedom of information law as the reason why it wouldn't post the report on its website.

The report found that the Kwantlen board had inappropriately given pre-employment payments to two executives, including current president Alan Davis, and then failed to properly disclose them to the government and public.

At the time, Amrik Virk was head of the board's human resources sub-committee. Virk, elected as an MLA a year ago, is now the minister of advanced education in the cabinet Premier Christy Clark appointed after last year's election.

Only in Canada?

The finance ministry's release explained the decision to keep the report off the Internet by saying, "In compliance with government's duties under section 30.1 of the Freedom of Information and Protection of Privacy Act, the report is not available on the government website."

The section the release referred to says that "A public body must ensure that personal information in its custody or under its control is stored only in Canada and accessed only in Canada." By "personal information" it means "recorded information about an identifiable individual other than contact information."

The act allows a couple exceptions to the section, including when the individual whose personal information is involved has consented to having it stored in or accessed from outside the country.

It also says that the minister responsible for the act can issue an order to "allow disclosure outside Canada... in specific cases or specified circumstances, subject to any restrictions or conditions that the minister considers advisable."

KPU also kept the report off its website, telling staff in an email that hard copies would be available in the institution's libraries.

'Inconsistent with the spirit': academic

The interpretation is at odds with how the act has been used in the past, said Mike Larsen, a criminology instructor at KPU who specializes in access and privacy issues.

"I don't think it's consistent with the spirit of the section," he said. The section was intended to protect British Columbian's personal information from things like access under the United States' Patriot Act, not to restrict reports dealing with issues of public accountability, he said.

"I think this is all resting on a misinterpretation of the purpose and spirit of 30.1," he said. "I don't think it's going to hold up in the long run... I see there being a real need to clarify this section."

A spokesperson for the finance ministry said in an email that the interpretation of the section was made on advice from counsel in the legal services branch of the attorney general's ministry. He declined to release the advice, saying it is subject to client-solicitor privilege.

As for the exception allowing disclosure under the section when the individual affected gives his or her consent, the spokesperson said the government did not in this case seek that consent.

'Absurd', says FIPA

The Office of the Information and Privacy Commissioner Elizabeth Denham, the independent officer of the legislature in charge of interpreting and enforcing the act, hasn't been consulted on the finance ministry's interpretation of section 30.1, a spokesperson said.

"There are no cases I am aware of that have come before the OIPC regarding access to personal information outside of Canada of the nature you refer to in your inquiry," the emailed comments said.

The OIPC could not, however, offer an opinion either. "The Office can't make a legal determination, or give legal advice, on this matter by way of your inquiry."

Vincent Gogolek, the executive director of the B.C. Freedom of Information and Privacy advocacy group, called the finance ministry's decision "ridiculous," "absurd" and "short-sighted."

If the government begins applying the decision consistently, a huge number of reports that contain personal information would have to be removed from the province's websites, he said.

The annual public accounts, for example, are posted to the finance ministry's website and include the names and salaries of everyone who makes more than $75,000 a year.

Calling it a "novel approach" to restricting access to public information, Gogolek said FIPA will be watching the issue. Though it has no immediate plans to challenge the interpretation, the organization will likely intervene if and when the opportunity arises.

KPU's Davis announced earlier in the week that the school is launching its own investigation into hiring practices, and the NDP's David Eby who first brought the matter to public attention has asked the auditor general's office to investigate.

Both the NDP and BC Conservatives have called on Virk to resign from cabinet, but Clark has said she has confidence in him and will keep him as the minister in charge of post-secondary education.