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The Freedom of Info Maze

Public has right to government records, but just try to get them.

Russ Francis 5 Jul
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Officials telling us to get lost?

Like many reporters, I've filed innumerable freedom-of-information requests. Here's why I still cross my fingers every time.

The naïve outsider could be excused for thinking that, with the help of the province's freedom of information and protection of privacy act, barrels-full of evidence of scandal, corruption, wasteful spending and other forms of malfeasance by the 2,000-plus public bodies in B.C. is readily available, on request.

Witness the following, from the legislation's opening lines: "The purposes of the act are to make public bodies more accountable to the public and to protect personal privacy the public a right of access to records."

Sounds great.

Dear Local School Board Superintendent:

Please send me all the embarrassing stuff you have, so I can write a story that will bring down you and your six-figure bureaucrat colleagues. And if you can courier it to me by our deadline this Friday, that would be great.

In the interest of making public bodies more accountable to the public, I remain, etc.

Sadly, it doesn't quite work that way. Right of access or not, the route to public records is fraught with obstacles, new barriers popping up just as others are cleared.

Virtually from the first request I ever filed, I learned that the legislation's 30-day "maximum" time for responding to requests is, almost without exception, in fact the minimum. It's been a long time since one of my responses came back in less than 30 days.

Sometimes they are a few days late. Often it's more like a few weeks.

Even more often, the public body extends the response time by another 30 days, as permitted under the act. While you can appeal the extension, that in itself takes time.

When a day is not a day

Then there was the Liberals' fiddling with language. In 2002, they passed an amendment that changed the 30 calendar day period to 30 business days. That added nearly one-third to the already-ignored time limit for responding.

Patience is a fundamental requirement in using the legislation.

Not all public records require the use of a freedom-of-information request.

For instance, under amendments made to the public sector employers act, the employment contract of any official in the public sector earning $125,000 or more annually is available on request. Rather, it's supposed to be.

On paper, it's a powerful requirement, implemented via amendments to the act that the Liberals passed in 2002.

If an official's contract contains a provision requiring that all or part of the contract is to remain confidential, that provision is void, says the act. Not only the contract itself, but any reports filed in relation to it, are available for public inspection, in the same way that they would be had a formal freedom-of-information request been filed.

But, public sector employers act or not, things are never quite that simple.

About nine months ago, I asked for the employment contracts, and related records, for several public-sector officials. Despite innumerable phone calls and emails, I have yet to receive the complete records.

The reasons range from "somebody needs to sign off on these" to "the records are not all in the same file," and so on.

But the provision sure looks good in principle.

Look but don't keep

For reporters covering municipal politics, one of the most valuable sets of resources are the campaign donation disclosure forms required from every city councillor following the election. If a developer looking for a rezoning handed over a whack of money to a candidate, that's the place to find it.

Last March, I asked for copies of the disclosure statements for the successful candidates in last November's race for mayor and council of Victoria.

"You can look at them, but you can't have copies," I was told.

Not for the first time, I politely pointed out that section 27 (7) of the interpretation act requires provision of copies of any public record. A few hours later, city officials changed their minds.

"You can have copies, but you may not be able to report anything from them," was the next obstacle. "Consult a lawyer."

So, as well as needing the patience of Job, anyone wanting public records needs access to legal advice. As it turned out, our legal advice was that we could indeed publish stories based on the records.

Still, it isn't supposed to be like this!

Another invaluable tool in a reporter's kit is access to the names of company shareholders. Until March 29, 2004, those names were considered public records. But the business corporations act effectively prevented ordinary citizens from having unrestricted access to the names. In particular, reporters could no longer write stories using information from those records.

Then, almost exactly two years later, last March, the government introduced amendments to the act that included restoring the unrestricted right of access.

Sometimes obstacles pop up for a while, linger, and then go away.

Your rights, or copyright?

Recently a new wrinkle has arrived for reporters hoping to make use of public records.

Earlier this year, using freedom-of-information requests, I obtained copies of the travel expenses of the senior ministers in the Campbell government.

Apart from a few minor deletions, the records were more or less intact.

But at the end of each set of records, came an ominous attachment.

"NOTICE OF COPYRIGHT," it read in bold capitals.

"These records are protected by copyright under the federal copyright act. Reproduction of these records or any portion of them is prohibited except as authorized by the copyright act."

More than a dozen requests I've filed with the provincial government have drawn responses that included the copyright notice, though others have not.

So. You file an information access request, wait the better part of three months for a response, only to receive the documents -- with a copyright notice.

Apparently even blank government forms are protected by copyright. One provincial official told me that meant that I could use excerpts from records obtained under FOI, but could not reproduce a whole document.

Somehow, that doesn't quite gibe with the freedom-of-information legislation's promise of giving the public a right of access.

Chilling effects

That fact didn't pass unnoticed by B.C. information and privacy commissioner David Loukidelis, who wrote to labour and citizen services minister Mike de Jong, the minister responsible for FOI, to point out his concern.

The copyright notice has also infuriated a number of activists.

As it turns out, the copyright act includes an exception for reporters, under the "fair dealing" provision. As long as the source and the author -- if given in the source -- are cited, fair dealing for news reporting does not infringe copyright.

But the chilling effect of the copyright notices, along with the other obstacles, makes one wonder if the provincial government has quietly changed the purpose of the FOI legislation to one of discouraging public access to government records.

More amendments to B.C.'s freedom of information law are still in the wings, perhaps to be introduced in the fall session of the legislature.

I can't wait to see what new obstacles will be thrown up by the Liberal government, some of whose members, while in opposition, promised to make all public records available without restriction, for the asking.

Russ Francis is a veteran Victoria reporter and researcher.

Related Tyee stories: Francis examined the B.C. Liberal government's record on transparency and accountability in a three-part series. Stanley Tromp dissected information shielding laws proposed (and then dropped) in the last session of the legislature. Ann Rees revealed how B.C. officials track and strategize about people seeking information from the government.  [Tyee]

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