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BC’s Long Regime of Secrecy

Under the BC Liberals and the NDP, the province has stalled FOI requests, choked access to information and muzzled staff.

Ben Parfitt 24 Jun 2022TheTyee.ca

Ben Parfitt is a resource policy analyst for the Canadian Centre for Policy Alternatives B.C. office.

When debate on the Freedom of Information and Protection of Privacy Amendment Act began last fall, Stephanie Cadieux, then Liberal MLA for Surrey-Cloverdale, was among many to note British Columbians are waiting longer and longer to obtain information from government that should simply be made freely and publicly available as a matter of course.

She accused the government of taking “great strides to strip away transparency.”

“British Columbians — the media, members of the Opposition — are waiting months, even years, for responses for documents requested through FOI, documents they are entitled to,” Cadieux said.

Listening to the debates, I was struck by just how much things have deteriorated over my 36 years’ work as a journalist and, later, public policy researcher. In the past two decades in particular, Liberal and NDP governments alike have withheld more and more information as a matter of course, calculating that they will face few consequences for doing so.

But before getting to that, let’s go back to 1989, three years before we even had a freedom of information law in B.C., and consider what working life was like for those whose jobs it was to ferret out information and get it before the public.

That year, three years into a stint as a general assignment reporter at the Vancouver Sun, I got the chance to cover my first beat for the newspaper.

It was an interesting time to become the paper’s forestry reporter. After a century of logging, conflicts were increasing between those who wanted to cut more forests down and those who wanted more of them left standing.

Members of the Haida, Nisga’a, Gitxsan and Wet’suwet’en First Nations were among many in dispute with the forest industry and its government overseer over logging in their territories. A fight was gearing up between environmental groups and MacMillan Bloedel over the Carmanah Valley on Vancouver Island, a precursor to the historic dispute that would later erupt in Clayoquot Sound. And a nascent forest industry funded “share” campaign was encouraging many residents in rural communities to do battle with the conservationists.

On a steep learning curve, I did what many of my fellow reporters did. I went to the library.

And not just any library, but the one shared by the two newspapers owned by Pacific Press and housed in the same building: The Sun at one end of the hall, the Province at the other.

Without the women working at the library — and they were mostly women — life for reporters in those pre-internet days would have been far more challenging.

At the library desk, I asked for information on provincial government employees. Since all forestry activities in British Columbia required government approval, I needed to know who worked at the Ministry of Forests and what they did.

Returning to my desk with a government directory retrieved from the library’s stacks, I began typing names and telephone numbers into my visual display terminal. Line after line of green print soon filled the first of many black screens. When done, I had a list of all the relevant public servants that I might need to speak to. The list ran to hundreds of names in 42 district and six regional offices as well as the ministry’s headquarters in Victoria.

If I wanted a caribou biologist in Quesnel, a fire ecologist in Williams Lake, a log scaler on the Sunshine Coast or a log theft investigator in Nanaimo, they were all a call away and happy to talk unless they were in the field. And if they were out (many of them actually worked in the forests those days), a real person who answered the main office number would pass on my request to speak to them upon their return.

The library eventually died, done in by cutbacks initiated by Pacific Press’s owner, Southam. The rise of the internet proved a major challenge to newspapers — and the big newspaper chains responded with big budget and staff cuts.

Of course, more and more newspaper reporters were soon without work too, many fleeing with some cash in their pocket in response to buyout offers. I took the first of such buyouts in 1993, along with six of my editorial colleagues. The pace of buyouts soon accelerated, leading to the editorial ghost town that exists now.

The communications kiss of death

Along with the decline in staffing was a decline in the influence that many mainstream media outlets once had. The demise gave rise to more online media outlets that never had the financial resources that companies like Southam once did.

And while many of today’s lean online media publications punch way above their weight in terms of investigative journalism, incisive commentary and analysis, their output is consumed in a world that is unrecognizable from what prevailed in the heyday of traditional newspapers.

“Yesterday’s news is tomorrow’s fish’n’chips paper,” Elvis Costello once belted out before the internet was a reality. I wonder what the brilliant lyricist might say about the ephemeral nature of news in today’s world, where everyone, everywhere, all the time is encouraged to look not at what’s in front of them, but at something else?

What are 500 million new tweets and nearly five billion Facebook shares each day doing to our collective attention spans? What is the deliberate dissemination of lies — and an increasing number of cases of state-sponsored lies — doing to blunt or discredit fact-based investigative work or to draw our attention somewhere else altogether? A lot.

None of that has been lost on our elected leaders and their political appointees. Gone are the days when a newspaper doggedly pursuing one story day in and day out and splashing it on the front page could actually change something. Government and industry leaders know that most news stories most of the time have little staying power and can be ignored with impunity.

In such an environment, it is easy to deny people access to information that used to be routinely released. Days, weeks, months — and in some cases years — go by now where the government withholds information that can and should be in the public realm.

Attempts to talk to real people about the real work they do typically end in requests to file written questions by email, and not with them, but with a ministry “communications” officer or director. If you are the one filing the questions that’s the kiss of death, because that’s the beginning of the end of all meaningful communication.

The intent is clear. Keep information shrouded in darkness and maintain silence for as long as possible. Force people down the time-sucking, soul-destroying rabbit hole of filing formal freedom of information requests. And do so over and over again. Eventually most people, most of the time, give up.

Green Party Leader and Cowichan Valley MLA Sonia Furstenau says she is seeing more such behaviour and has raised concerns about it in the provincial legislature, most recently in questions to Finance Minister Selina Robinson about the government’s tight grip on reports relating to the Site C dam, the spectacularly over budget, ecologically ruinous hydroelectric project still years away from completion on the Peace River.

“The public body is meant to work for the public. But what we see is a culture that says the public doesn’t have a right to know what is happening,” Furstenau says. She likens it to a ship’s hull covered in barnacles. “It’s harder and harder to see what’s inside.”

Life in the information fast lane

On its general freedom of information web page, the provincial government notes that filing an FOI initiates a “formal” process for retrieving information and that citizens seeking information should begin by simply asking for it.

“Often, the information you need is accessible through other, faster channels,” the government says. “Call the ministry holding the information you need to make an informal request. They may be able to tell you where to find the documents you need, or explain how to formally request it.”

How kind. They may give you what you want far faster than you filing a formal request.

As a cautionary tale, here’s what “faster” looks like in this new dark age where the unsweet sound of silence has descended.

In my job as a public policy analyst, I do a range of research and writing on natural resource issues.

Early last year, I became interested in the growing power and influence of the wood pellet industry in B.C. and started to investigate. Since then, I have written on the industry’s big appetite for wood and its consequences for B.C.’s forests.

On March 17, I emailed B.C.’s Forest Ministry to ask what it knew about how much wood the pellet industry is consuming. The industry is dominated by the Drax Group, a U.K.-based company that generates thermal electricity by burning 10 million tonnes of wood pellets per year, many of which come from B.C. forests.

The questions were straightforward. How many logs and wood chips are delivered to individual wood pellet mills in B.C.? Does the ministry track such information and can members of the public access it? And if the ministry does not do such tracking, why not?

On April 8, a little more than three weeks after filing my questions, I received an emailed reply that begged more questions than it answered.

First, I was told, the information is available on a government web page. The problem was the web address the communications staff supplied didn’t exist, or if it did it was only accessible to government employees.

Second, I was told that the information I asked for had to be provided by the pellet companies to the government under Section 136 of the Forest Act. However, certain unnamed rules prevented the government from providing “direct public disclosure” of the data.

The ministry then encouraged me to look at a report that provided “summary statistics” on various mills in the province. But those statistics, as the ministry knew, did not itemize actual logs delivered to pellet mills.

Why do such questions matter? Because the vast majority of B.C.’s forests are publicly owned. We all deserve to know — First Nations in particular — how natural resources on public lands and the traditional territories of Indigenous peoples are used.

Waiting for approval

After waiting three weeks for a response that wasn’t remotely close to answering my questions, I filed a number of followup questions on April 20. The new questions started with the obvious. The URL didn’t exist. Was there another one I might use?

Second, if “direct disclosure” of certain information wasn’t possible, could the ministry provide me an aggregate figure for all the logs and all the wood chips consumed each year by the industry, and would it do so without me having to file a formal FOI request to get it?

Third, I noted that Section 136 of the Forest Act required pellet companies to “keep accurate records” of the logs and wood chips delivered to them. I also noted that the act said that the companies “must report” that information to the ministry. Were the records being given to the ministry? And if they were, could the ministry provide aggregate figures on the logs and wood chips delivered to the province’s pellet mills in the most recent five years?

One month later, I received an email from an administrative official in the office of Melissa Sanderson, an assistant deputy minister in the Forest Ministry. Unfortunately, there was still no answer.

“I’m just sending you a quick note to let you know that your questions have been answered and are going through the approval process,” the official wrote, adding “they will be sent to you shortly.”

Six weeks later, I wrote another email asking when the radio silence would end. After receiving no reply, I called the official on June 6.

After listening to me complain about the lengthy delays, the official said that unfortunately no timeline could be provided for when the review would be completed.

The information milk run

My biggest fear, and I expressed as much to the official, who I am not naming here because in all fairness he or she was simply the messenger, is that at some point soon I will be told to file an FOI, which may or may not give me anything.

On Monday, I finally received the long-delayed answers. The scripted responses avoided answering some questions directly, or raised further questions or points of clarification. As I feared, I was also told that I might have to file an FOI.

This is what passes for a direct flight in the government’s release of information these days. In the three-plus months that it took the Drax Group to burn more than 2.5 million tonnes of wood pellets, a goodly number of which originated in B.C., the ministry tasked with managing our forests refused to divulge basic information on how many of our trees were turned into pellets. Either it didn’t have the information or didn’t want to release it.

Now here's what the milk run looks like.

Almost three years ago, on Aug.15, 2019, I sent a freedom of information request to the Finance Ministry asking for a breakdown of what companies drilling for natural gas pay in royalties on the fossil fuels that they force to the surface in their earthquake-inducing fracking operations.

Past experience with the same ministry had taught me there was no point even asking for it directly as the request would be denied. So, I jumped straight to the FOI.

My specific request was for the names of all the companies and what each of them paid in royalties over a three-year period.

That I even had to file the request was odious.

The fossil fuels trapped below the earth, like the trees growing on its surface, are managed by the provincial government to the benefit of all British Columbians.

In recognition of that, companies pay money to the provincial government for each unit of natural gas, propane, butane, condensate or oil brought to the surface. These payments are known as royalties. Their counterpart in the forest sector goes by a different name — stumpage. For each tree cut down, a logging company effectively pays a royalty to the province based on the species of tree logged and the grade or value of its wood.

For decades, British Columbians have been able to use a publicly accessible database to get detailed information on all the trees logged in the province.

It names the companies, identifies the kind of trees they cut down and provides precise figures on what they paid for the publicly owned timber they harvested. With a little effort, anyone can extract information on what companies like Canfor, West Fraser or Western Forest Products are doing throughout the province over time.

Yet anyone wanting to know what Shell, Petronas, Ovintiv or Canadian Natural Resources does with our publicly owned fossil fuel resources can forget about it.

Why the double standard?

There is simply nothing publicly available on royalties, other than an aggregate figure in the provincial budget or public accounts. Filing the FOI, I hoped, would help to shine a light on this glaring discrepancy.

Several weeks after sending in my FOI, I got the response I anticipated. The government refused to release the information, citing Sections 17 and 21 of the Freedom of Information and Protection of Privacy Act.

The first of the two sections covers information disclosure that may be “harmful to the financial or economic interests” of the government. The second enumerates the various ways that the release of information may be denied on grounds that it would harm business interests.

In November 2019, I appealed the decision to the Freedom of Information and Protection of Privacy Office, arguing that the government had already disclosed information, and had for decades, on what forest companies paid in stumpage. No harm had occurred to either the government or forest companies by releasing such information.

How could release of essentially the same information pertaining to fossil fuel companies be any different?

I also noted that royalty or stumpage payments are not taxes. They are a form of rent, paid to the public body in recognition of the public ownership of the resources being exploited. Since all companies play by the same set of rules, the amount that individual companies pay in royalties is not proprietary or harmful to their business interests.

After filing my appeal, I was told that it might be two years or more before the matter moved to a formal hearing. Then, after such a hearing, I could expect to wait until some time in 2023 or 2024 for the Freedom of Information and Protection of Privacy Office to rule on whether or not the Finance Ministry would be compelled to release the information it was withholding.

Staying in the queue

I elected to stay in the FOI queue and wait. As the months rolled by and the day approached to set an actual hearing date, the Finance Ministry finally budged realizing that it would eventually have to put its reasons for withholding the information into writing.

On Feb. 18 I received a letter saying the ministry had “reconsidered” its earlier decision, but now needed to check with each of the fossil fuel companies to see whether they wished to try to prevent the information’s disclosure.

Then on April 4 I received a letter saying that the ministry “after considering all relevant factors” would release the requested documents within a month and that it was giving the fossil fuel companies a final 20 days to decide whether to file requests for a review of that decision with the Information and Privacy Commissioner.

In early May, two years and nine months after filing my FOI, I was finally given the material. It was a total of just nine pages and had probably required not more than a few clicks of a mouse by someone working in the Finance Ministry’s mineral, oil and gas revenue branch to retrieve.

Of course, because of all the roadblocks placed in my way I was now in receipt of information that was three years out of date. Which quite naturally led me to ask the ministry if it would kindly release the most-recent three years of information.

This time, the answer was quick. Only a matter of days.

Of course they would give me what I wanted. All I needed to do was file another FOI.

Pay up

When I filed that new FOI recently, I paid a new $10 fee, thanks to changes introduced by the provincial government late last year that were allegedly all about streamlining the process.

The government said prior to imposing the new fee that it was doing so to reduce the number of “frivolous” requests being filed.

Somewhere, George Orwell is smiling.

Keith Reynolds is a member at large of the BC Freedom of Information and Privacy Association, a non-profit dedicated to improving access to information.

He noted that prior to the government introducing its new “modest” filing fee it was warned that there was “no way to deter frivolous requests without deterring important ones as well.”

If the objective truly is to try to reduce the mountain of requests it receives, there’s a far easier way for the government to go about it, Reynolds says. Proactively release information and post it where it is readily available so that people don’t have to file FOIs in the first place.

Mike Morris, Liberal MLA for Prince George-Mackenzie, laughs ruefully when asked about the revised rules. He says that he and many of his colleagues on the Opposition benches are now among the government’s “biggest customers” when it comes to filing — and paying for — FOIs.

“We wait weeks and weeks or months for replies,” he said, adding that the lengthy delays impede the effective work of the Opposition.

He says he sees “no evidence” that the fees have helped to streamline the process, rather the opposite.

Filing a successful FOI requires that you know that certain information is likely there, what ministry has it and that it is releasable. Once you’ve filed your request and parted with your $10, the lengthy wait begins.

Asking the right question of the wrong ministry or the wrong question of the right ministry will jettison your request. You’ll be forced to start all over again with another charge on your credit card.

These days you don’t just stand to be insulted when you ask your government for information. You pay for the privilege.  [Tyee]

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