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News Smothered by Secrecy

How officials buried info we deserve to know. Second in a series.

Stanley Tromp 9 May

Freelance journalist Stanley Tromp is coordinator of the FOI caucus of the Canadian Association of Journalists and a regular contributor to The Tyee.

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Deleting, deflecting, other tactics.

By delaying the release of records through FOI, government officials calculate that editors will spurn them as being "old news" and therefore not worth publishing. To which I would reply with the words of the great 1940s American editor Heywood Broun: "For the truth there is no deadline."

Here are some examples from my recent work. Call them Ghosts of Stories that Might Have Been. They were essentially "spiked" by what our premier still touts as "the most open and accountable government in Canada."

Outsourcing to U.S. firm. When the BC Liberal government contracted out the management of our health information to the U.S. company Maximus -- raising fears the records could be accessed by the FBI trolling for data -- the contract was kept secret, on a "harm to business" rationale (ignoring the 2000 Coke-UBC FOI precedent).

This prompted a years-long FOI battle at the commissioner's office by various applicants that is still ongoing. Similar struggles continue to see the government contracts with EDS and IBM. (Ideally, all such contracts should be posted on ministry websites.) Then, I made an FOI to see the amounts that Maximus was fined for poor performance, and those numbers were withheld also, under section 17, "financial harm to government"; and that too is under appeal.

ICBC bonuses. In April the Insurance Corporation of B.C. told the media that it would no longer release the figures of bonuses it paid to its senior officials. The reason given me by the ICBC public relations branch? "We just didn't like the way the media reported on the bonuses last year." I countered that such an excuse was not an exemption listed in the FOIPP statute, to no avail.

So I filed an FOI request to ICBC, who rejected it, with the novel argument of section 22, i.e., the bonuses are their private "work history." (After an extensive search, I was unable to find any other B.C. public body that refuses to release such bonus figures, which are paid from the public purse.)

So I appealed to the information commissioner, whose office is so backed up that -- as every public body well knows -- it might take two years for a ruling to emerge, hence making the bonuses "old news."

Children and prostitution. The act allows FOI fees to be waived if they are in the public interest, yet such waiver requests, from the media or non-profit groups, are too often spurned. Upon their appeals, the commissioner has granted fee waivers to environmental groups.

After it was revealed at a Vancouver Police Board meeting that Vancouver aboriginal schoolchildren were being recruited into prostitution, I made an FOI request to a ministry for related records. The ministry charged an unaffordably high search fee, I appealed the fee, and the ministry coolly rejected the appeal with no explanation other than that request was generally not in "the public interest." This is the single most troubling FOI response I have seen.

UBC's 'private' business. Ever since the FOIPP Act became law in 1993, the University of British Columbia has housed by far the most obstructionist FOI office in the province. (The next in line is the B.C. Lottery Corporation.) The irony here, often noted, is that of an academic institution whose self-described mandate is to disseminate knowledge, being as obsessively secretive as any royal fiefdom.

For a year UBC refused my repeated requests for an updated list of its dozens of corporate entities that it claims are wholly exempt from the FOI law, despite having provided such a list in 1998. When I made an FOI request for records from seven of these entities, it was rejected (despite the fact the Vancouver School Board has been ordered by the senior government to add all of its wholly owned companies to FOI coverage), a refusal now under appeal. The most important is UBC Properties Trust, which manages 1,000 acres of public land and $600 million dollars of construction on campus in secret, a company wholly owned by UBC to generate profit for it and which is staffed by UBC officials sitting on its board. Such "private" entities are also a problem at SFU and UVic.

Next, when I asked UBC through FOI for an internal report into a managerial wrongdoing, UBC refused (on "privacy" grounds) and I appealed. UBC then hired a lawyer to try to shut down the commissioner's inquiry on the grounds that the FOI legal principle at stake had been decided once-and-for all years ago ("issue estoppel") -- the first time I have ever heard of such an FOI strategy tried. After months of legal arguments, the commissioner rejected UBC's pleas, and the inquiry continued.

Then, UBC charged me $577 to locate and copy the minutes of a half-dozen Board of Governors closed meetings. By contrast, SFU and Langara College put summaries of their in-camera board meetings up on their websites. And so it goes.

Premier's phone records. FOI response delays seem to be growing, with three months the new average. In Victoria, the slowest responder is the premier's office. (In 2004 my FOI request for Premier Campbell's phone records was rejected on privacy grounds -- an argument the commissioner ruled in favour of -- despite NDP Premier Mike Harcourt's having released his phone records a decade earlier, to his great loss.)

Delays sometimes come from overworked FOI staff, who generally do their best, but more often from elsewhere, such as the "program area" in which the records must be found, which can be located in another office or another city. The final and worst bottleneck is usually the deputy minister (acting for the "head of the public body"), who must "sign off" on the records before they can be sent out, whenever he/she can find the time to do so. "We're too busy," is the general excuse. (What would the state's response be to a citizen who routinely said "Sorry, I just can't find the time to obey the laws"?)

A delay of more than 61 working days is a "deemed refusal" in law, and one can appeal that through the commissioner's effective "expedited inquiry on delays" policy which began last November, and which sometimes works well. (In this process, for one of my requests, the commissioner granted a ministry an extended deadline, then the ministry broke that deadline also -- for which the commissioner could have imposed a $5,000 fine but didn't. So I was compelled to take the rare step of phoning the deputy minister directly to ask for sign off. That worked.)

The legal odds are nearly always stacked against the applicant. For example, the applicant has just 30 working days to appeal an FOI refusal, and if that deadline is missed there is no second chance. By contrast government routinely breaks its own deadlines with impunity.

Minister's briefing book. As other FOI applicants can also attest, governments sometimes claim that specific records do not exist, when in fact they really do. (It is usually impossible to learn whether the misrepresentation was accidental or not).

For example, through FOI I obtained a copy of the table of contents page for a minister's briefing book. Later I made a new request for three chapters from the book, citing them from the contents page. Startlingly, the ministry replied that no such book existed at all. Upon appeal, the ministry official mused that there may have been such a book once, but it had since been destroyed. Six months later, they somehow found the book, and sent over the chapters.

Vancouver campaign money. Vancouver is the only municipality that bars citizens from photocopying lists of the donors to civic election campaigns, so I was compelled to sit in the city clerk's office for hours to hand-write them all. (I appealed, but the commissioner ruled that these Vancouver Charter rules override rights in the FOIPP Act.)

This year, the city's FOI branch became the only public body in B.C. to start charging fees for "reviewing" FOI records, despite the government's own policy manual that clearly states public bodies "cannot charge fees for reviewing records." The Vancouver FOI director claims the book's interpretation of the FOIPP Act is wrong, and so the city has no legal or moral duty to follow it. The dispute is under appeal with the commissioner.

Closed Health Authority meetings. In 2003, the B.C. Supreme Court ordered B.C.'s secretive health authorities to open their meeting to the public. Justice M.D. Macaulay had a sharp rebuke for health authorities and their claim that they were right to exclude the public. These justifications show "a cynical favouring of the interest of the bureaucracy over that of the public," wrote Macaulay, "as well as a stunning disregard for the legislative intent" of the Health Authorities Act. The legal challenge had been launched by the Hospital Employees' Union (HEU).

Health workers silenced. On Oct. 10, 2006, the Vancouver Sun reported that a directive from Howard Waldner, CEO and president of the Vancouver Island Health Authority, warned the 16,000 employees, everyone from doctors to nurses to support staff, that they are not allowed to talk to the media, MLAs or MPs without getting permission from the top of their organization.

Government keeps refining its game

For years, in response to many of my (and others') FOI requests, large sections have been sent here blanked out, with a little "o/s" handwritten upon the blanks. This means "out of scope." In other words, the government asserts the material does not fit your wording in your request -- which it generally interprets in the most narrow way possible, and sometimes wrongly -- and then it assumes (only for your benefit, of course) that the material wouldn't interest you.

It cannot be calculated how much vital public information has been concealed over the years in this way. We do not know just who in government (e.g. the FOI director, deputy minister) is making these "o/s" decisions. This practice is of highly dubious legality, for withholding records as "out of scope" is clearly not an exemption in the FOIPP act. 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, which few do.

Lately, as well, some ministries have been mailing me peculiar warnings of "Crown Copyright" accompanying the records they send in reply to my FOI requests. They warn me that the records are state property and I cannot legally reproduce them (such as in news stories?) without their express permission, although the penalties are not specified.

The concept was scathingly derided by former federal information commissioner John Grace, who called Crown copyright "something ironic, if not repugnant, and perhaps even unconstitutional." He added "the whole quaint notion has been all but dormant, ignored under the reasonable assumption that what the government produces for the public with public funds is in the public domain.... Thus does common sense make mockery of an unenforceable concept. In the context of Crown copyright, who is the 'Crown' if not the people?"

Oral government

Meanwhile, the insidious shift towards "oral government" is growing. E-mails must be preserved and accessible under FOI laws. A debate is looming over Blackberry records. Yet the premier's multi-tasking assistant Ken Dobell startled an FOI conference in 2003 by announcing frankly that "I delete my email all the time as fast as I can." Loukidelis later reprimanded Dobell for publicly admitting he avoids taking notes so they aren't uncovered by reporters under FOI.

We are left to wonder how effectively government can operate when depending only on the tenuous string of memory.

At the same event, Dobell asserted that "FOI still makes for good government," and that for voicing this concept, "I've been lectured to by my colleagues on the need for more cabinet confidentiality -- I was called ignorant and naïve."

As well, former Liberal aide Dave Basi, now on trial for various offenses, told the court he assured others not to worry about their e-mails to him emerging under FOI, because he just prints out his emails and then deletes them. Basi quipped that "FOI is for purists."

Tomorrow: Why 13 is the unluckiest number for citizens seeking FOI materials.

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