"We will bring in the most open and accountable government in Canada. I know some people say we'll soon forget about that, but I promise that we won't!" -- Newly elected B.C. Premier Gordon Campbell, victory night speech, 2001.
How much more battering can the Freedom of Information system take? As a freelance news reporter, after making hundreds of FOI requests over the past 12 years, I can see government secrecy is sharply on the rise. Information is a source of power, prestige and profit -- and whoever wished to give those away?
Not the BC Liberal government. Latest evidence: The government introduced Bill 25 in late April claiming that it will "strengthen" the Freedom of Information and Protection of Privacy (FOIPP) Act. But as the diverse groups that make up the Campaign for Open Government have noted, Bill 25 actually impedes them by increasing the ability of officials to stall requesters when a request is transferred from one public body to another.
In 2004 a special legislative committee, with 13 BC Liberals and one New Democrat, held hearings on the FOIPP Act and issued an exemplary report. Yet the BC Liberals have been very selective in choosing which of the report's recommendations to implement: of its 28 points, not one of the 10 picked for action improves the actual FOI request process.
Many nails shut the lid
Ideally, the government to would implement all of the committee's recommendations -- such as to allow persons to ask for their own personal records without an FOI request, and to amend section 13 to require the government to proactively publish 14 types of information.
Instead, since their election in 2001, the Liberals have:
- Passed 16 amendments that have made the FOI process more difficult and time consuming. Allowable response times now stretch to many months.
- Slashed the portion of the Information and Privacy Commissioner's budget available for enforcement of the FOIPP Act by 35 per cent in the years 2002-2005. Some funding has been restored recently, but funding for FOI is still not back to 2002 levels. (The Alberta FOIPP Commissioner receives about twice the budget for half the B.C. workload.)
- Failed to restore huge FOI staff cuts made by the anti-FOI administration of NDP premier Glen Clark. Currently each FOI officer is handling an estimated 25-30 files when 10-12 would be optimum. Over 40 per cent of requests are not answered within required timelines, and the delay skyrockets when a request is deemed to be politically sensitive.
When Clark slashed FOI staff, Gordon Campbell stated, "Information rights are meaningless if disclosure timetables cannot be met because there aren't enough staff to do the job," and pledged the Liberals would "...ensure that resources are available so that all provincial government bodies are able to meet or beat statutory disclosure timetables."
- Extended cabinet secrecy to several Liberal caucus committees -- a step without precedent in B.C. history -- most recently to its new Climate Action Committee. The discussions of that body will bring major changes to the lives of every person in B.C. "It's the first time I can remember that we weren't consulted on an amendment of the FOI Act," said the commissioner. (The farcical "open cabinet meetings are another matter entirely.)
- Removed B.C. Ferries from the scope of the act and refused to include VANOC, the Olympic organizing committee. (The 2010 Olympics might well become the biggest transparency battle of the next few years.)
- Last year the government tried to pass a bill called the Public Inquiries Act that would have allowed it to keep secret the final reports of its public inquiries. Pressure from the Opposition party and the Campaign for Open Government forced the government to back down, but it re-introduced the bill in a modified form this year.
- The Liberals introduced a B.C. Community Charter -- the law governing local government -- that would have allowed municipal councils to place many more subjects into closed meetings. Unfortunately there are no rules at all setting out what B.C. school boards, colleges, universities and some other public bodies can place in-camera.
A better model might be the American "sunshine laws" whereby most states prescribe the items that all public bodies must discuss in open sessions. For example, a few years ago, parents complained bitterly of the secrecy of a Vancouver School Board budget planning meeting, which never could have occurred in the U.S. But resistance to this move would be intense; one B.C. school board wrote to the provincial government in the late 1990s that it would fight against the passage of a sunshine law, complaining (dubiously) that this would just create more litigation and conflict.
- Initiated a highly secretive review of the FOI act by bureaucrats in 2005 instead of adopting the many pro-FOI recommendations of the 2004 special legislative committee.
This review of government openness of was ironic for its secrecy: any group that refused to sign a confidentiality undertaking could not take part. Half of the submissions by public bodies are still being concealed from public view. Thanks to the growing trend towards oral government, no written report was delivered to government by the consultant who reported on the process.
- Failed to respond to urgent calls from the Special Committee, the Information Commissioner David Loukidelis and others to clarify the highly-abused section of the FOIPP act relating to policy advice, section 13, so that only true advice and recommendations can be withheld, not background documents. (More about Section 13 in the third and last article in this series.)
- Attempted to pass a bill in 2006 that would have exempted designated contracts and projects with private sector partners from FOI requirements. Concerted opposition from Campaign for Open Government and the NDP scuttled the bill.
- Routinely have engaged in political interference with FOI requests, e.g., with "sensitivity" filters.
- Routinely have made excessive fee estimates for access to records in order to dissuade requesters.
An example of this was brought to light in late April when the Information Commissioner's office ruled that a fee of $173,000 levied against Sierra Legal for data on polluters was unreasonable, that the Environment Ministry did not even examine the requested records in making its estimate, and that it improperly failed to adequately consider waiving the fee in the public interest. (These records were freely posted on government websites in the NDP days.)
Last week, the minister for FOI, Olga Illich, bluntly admitted to her hometown paper, the Richmond News, "These (fees) are also intended to address nuisance requests. If you pay a fee, sometimes you'll be a little more thoughtful about asking for information."
Civil servant blows whistle
But not only politicians are trying to curtail the act's powers. In its own submission to the 2004 review, the provincial bureaucracy had claimed that it was only trying to "fine-tune" the act's language, so that its "original intent" would be better expressed. In response, the information commissioner's aide Mary Carlson, in a too little-known letter of April 2004, noted her "very grave concerns" in the bitterest retort that I've ever seen from that office:
"It is objectionable for appointed public servants who are subject to FOIPPA to, a decade after FOIPPA's enactment, purport to be identifying and expressing the 'original intent' of FOIPPA, an Act of the Legislature. Talk of fine-tuning the law or returning to its original intent disguises the real effect of the [bureaucracy's] recommendations discussed below -- to reduce the public's right of access and impair openness and accountability."
The bureaucracy had also complained that the commissioner's rulings to open up public-private business contracts had "undermined fair and open procurement processes that will result in the best deal for the province," to which Carlson replied, "This serious allegation is a calculated appeal to politics, and we note that no particulars or evidence have been provided to support this sweeping claim."
After NDP Premier Mike Harcourt's FOIPP act came into force in 1993, it worked fairly well for the first two years. Then, perhaps inevitably, the honeymoon soured when FOI requests began revealing scandals. Harcourt's genuine support for the FOI concept was sharply reversed when Clark took over in 1996. In fact, Clark, made a joke (or was it?) at an event with media present, that "If I had my way in cabinet, we wouldn't have an FOI Act."
On that point the first Commissioner David Flaherty -- a privacy expert whose rulings were mostly harmful to FOI -- upon retiring in 1999, disturbingly wrote that he had considered the possibility of the Clark government "abolishing" the FOI act as being "by no means an idle threat."
The supreme irony is that while in Opposition, the Liberals were the single biggest user of the FOI act, and in 1998 Gordon Campbell wrote, "When government does its business behind closed doors, people will invariably believe that government has something to hide." This is just as true today as it was when the NDP was in power.
FOI users who have faced difficulties are welcome to submit their stories to the Campaign for Open Government, or to relate them in the comments section after this article.
Tomorrow: What big B.C. stories have we missed due to government secrecy?
Related Tyee stories:
- Government Secrecy Bills Pulled
Bills 23 and 30 deferred indefinitely.
- Public Spending Behind Closed Doors
Private contracts involving public money are insulating government business from needed public scrutiny.
- How BC's Government Tracks, Stalls Muckrakers
A deeper look at how Liberals track FOI-filing reporters reveals the methods, the spins, and how the reporter herself ended up on the list