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BC gov't can't hide ministers' records from FOI with 'Out of Scope' claims

[Editor's note: When a big ruling on Freedom of Information requests came down yesterday, The Tyee sought an expert opinion on what it meant -- and that expert happened to be at the heart of the case. Here is what Stanley Tromp emailed us as an explanation.]

The B.C. government cannot hide parts of ministers' records from Freedom of Information Act requestors with the claim that these are "out of the scope' of the law.

That order came down on December 7 from adjudicator Jay Fedorak in the office of the B.C. Information and Privacy Commissioner. The government has 30 days to appeal to court.

"It looks like the government was trying to create another, bigger hole to hide information, and thankfully they got shot down," said Vincent Gogolek, executive director of the B.C. Freedom of Information and Privacy Association (FIPA).

"The government chose to use one computer program for all these files, and run it out of the minister's office, then the Act applies to it. The provincial government was hoping they could get ministers’ offices moved outside the law, the same way they are in Ottawa. The Commissioner's office wasn't buying it."

In April 2009, this reporter filed an FOI request for the daytimer of meetings of the B.C. transportation minister from January 2002 to June 2004. (That is, about 1,200 meetings noted for Judith Reid, then 900 entries for Kevin Falcon. These are just mentions of who the minister was set to meet with, and what date and time, with no subject matter.) The hope was that the records might shed a bit of light on the events surrounding the BC Rail controversy and the December 2003 police raids on the Legislature.

The Ministry released some of the records (although it could not locate any from January 2002 to January 2003). But it withheld five per cent of the daytimer entries, those relating to the Minister’s MLA constituency or party caucus activities, and so are outside the scope of the FOIPP Act. The Speaker of the Legislative Assembly endorsed the ministry's claim.

I appealed to the Commissioner, and emphasized that it was not my wish to view records of MLAs' constituency meetings, which are indeed legitimately private. Such release would not have been possible anyways, and never will be, because these records are exempted under FOIPP sec. 22 (privacy protection). I agreed that they could be withheld, but wanted this to be done under the correct legal grounds.

The order noted that ministers generally integrate their MLA appointments into their government-related Microsoft Outlook calendars. The ministry argued that each electronic entry in the calendar was a separate record and the entries relating to MLA activities were not in the custody or under the control of the ministry.

"I do not accept the Ministry's characterization of individual calendar entries as each constituting a separate record," the adjudicator wrote. "In this respect, I agree with the journalist that each calendar is a single record (it was generated by the Ministry as such) and that, if the original records were paper day-timers or calendars instead of electronic calendars, there would be no dispute about this."

As well, some of the minister's daytimer entries were withheld under FOIPP Act section 17 (when release could harm the government's "economic interests"), and section 22. The government also withheld the dates that the minister met with the B.C. ombudsman, using an "out of scope" claim, which the OIPC adjudicator rejected.

The next stage. Such are the claims that a record portion is outside of the scope of the law. Yet there is a separate but quite similar concept, which is likely the topic of the next legal battle.

For years, in response to FOI requests filed by myself and others (such as environmental groups), the government sent back records with sections blanked out, with a little "o/s" handwritten upon the blanks. This is meant to denote "out of scope of the request," i.e. the subject matter is not relevant and so "the information is 'not responsive' to your request."

Of course, being unable to see the "o/s" parts, the applicant has no way of knowing if the deleted portions were truly "out of scope" or not, unless he/she appeals to the commissioner (and waits two years for a ruling), which very few do.

Acting brazenly as a law unto themselves, bureaucrats in principle could split one record into 20 records, with 20 separate FOI decisions, one for each. I argue that a single indivisible record is a single indivisible record, to no avail. As the OIPC ruling noted, "The journalist also says that, if it is possible for the government to arbitrarily categorize parts of a requested record as individual records, then this could be done in almost any case where electronic records are involved."

The B.C. Freedom of Information and Privacy Association astutely wrote about this problem in its submission to the 2010 Legislative committee review of the FOIPP Act:

"FIPA has run into repeated instances where public bodies have removed large parts of records on the grounds that they are "out of scope" of the request.

"'Out of scope' is not an exception listed in Part 2 of the Act. Nor do officials ever state that the requested records are those listed in Sec. 3(1) of the Act as not being subject to the Act. What this means is that officials have created their own unlimited new exception to the requirement to release records. This cannot be allowed to stand. . . . What happens now leads to the suspicion that what is described as 'out of scope' may be information the public body does not want to release, but cannot find any legal reason to withhold."

Most troubling is that (according to statistics supplied to me by the Labour ministry), the "out of scope" claim had been applied to withhold information in 345 requests over the 2001-2010 decade, that is, five per cent of the total requests, and the number has been rising. FOIPP Act law reform and regulation is urgently needed for this problem. This practice may appear to be a bland, minor, arcane point of administrative law and so elude notice, but I believe that it has over the years caused much vital information to be concealed from FOI applicants and the public.

Stanley Tromp is a Vancouver-based journalist who regularly contributes to The Tyee.

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