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To Fix FOI Law, Start Here

Section 13 creates yawning vacuum of secrecy. Last in a series.

Stanley Tromp 10 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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Baffling info searchers.

The most widely abused section of the B.C. Freedom of Information and Protection of Privacy Act (FOIPP) is surely unlucky number 13, for it invokes a yawning vacuum of secrecy for "policy advice or recommendations developed by a public body or for a minister."

Its ally, section 12, which allows secrecy to preserve cabinet confidences, comes a close second.

Late April of this year, Information Commissioner David Loukidelis wrote to the Minister of Labour Olga Illich to plead for needed reforms to section 13.

How did we get here? The B.C. Court of Appeal set a dangerous precedent in 2004 when it ruled on an FOI request dispute: the "Dr. Doe" case of the B.C. College of Physicians and Surgeons. The court held that section 13 of FOIPP was not limited to recommendations. Instead, the investigation and gathering of facts could be exempted from access pursuant to section 13, regardless of whether or not any decision or course of action was actually recommended.

Later, some courts disputed the "Dr. Doe" ruling, for in the FOIPP law, section 13 must not be used to withhold background explanatory papers. Loukidelis tried to appeal to the Supreme Court of Canada to overturn the Dr. Doe ruling, but he was denied leave to appeal, without explanation.

But despite those rulings and the information commissioner's urging, reform seems a forlorn hope. The Richmond News reported last week that "Illich said the government disagrees with him, and agrees with a court decision that upholds the government's right to deem policy advice confidential."

Here are just six abuses of section 13 (and many more could be cited):

Keeping secret a secrecy review. The B.C. government hired a consultant to do a highly secretive review of the FOI act in 2005. So secretive that the government even refused to tell me how much it paid the consultant, George Macauley, citing section 17, harm to his financial interests. In the process of the review, 27 public and private entities sent submissions on their preferred FOI-reforms to Macauley. A year ago I made an FOI request for these texts. After eight months of delays, I was told half of the public bodies' submissions would not be disclosed, due to section 13. (These include BC Hydro, ICBC, the Attorney General, the B.C. College of Physicians and Surgeons, three health authorities and the B.C. Association of Municipal Chiefs of Police.)

I pleaded in vain that because laws and public policy can ultimately affect us all, then we all have a fundamental right to know about the influences exerted in their creation. (This is one concept behind the B.C. Lobbyists Registry.) Of the submissions I did see, it is troubling to note that many of these urged the government to change the law to allow for more fees (even "full cost recovery," which would shut down most FOI users), longer delays, broader exemptions, and even give public bodies the initial right to refuse to accept any FOI request they call "frivolous and vexatious."

To highlight the absurdity, I had been given the full texts of all submissions to the 1999 and 2004 legislative reviews of the FOIPP Act -- the same type of records I was seeking here, although the process was slightly different -- without even making FOI requests for them.

Veiling reaction to newsworthy reports. Under sections 12 and 13, the Agricultural Land Commission rejected my FOI request for its internal reviews of the April 2006 report Farmland Forever by Charles Campbell writing for the David Suzuki Foundation. The problem is growing because similar internal reviews on reports have been released to me before, such as one about offshore drilling, and one about the B.C. Federation of Labour's report of 2004 on farm labourers in the Fraser Valley.

Hiding investor activities. Last September the B.C. Securities Commission used section 13 to reject my FOI request for its internal records that discussed the pleas by NDP MLA Leonard Krog for government intervention in the B.C. securities industry. This is the same B.C. Securities Commission that restricted public access to the shareholder registers of private B.C. companies, and cancelled Form 20, which revealed the identities of investors in a private placement -- all on dubious "privacy" grounds. "This personal-privacy thing is reaching insane levels," wrote David Baines in response.

Censoring resignation letters. The Health Ministry used section 13 to censor Fraser Health Authority chairman Keith Purchase's resignation letter. Purchase resigned in January, expressing frustration with inadequate funding for the health authority and the minister's firing of the Vancouver Coastal chairman.

But Vancouver Sun columnist Vaughn Palmer got the uncensored version of the letter, and wrote that the cuts "utterly mocked the spirit of the information law. It was a cover-up, plain and simple." The deletions included: "Based on that funding information, bed closures and service cuts would be inevitable.... Put simply, we have a crisis situation in the Fraser Health region," and so on. The white-out rationale is nonsense, for a resignation letter is not "policy advice developed by a public body" as per section 13.

'Severing' contradictory facts. Last November, Solicitor General John Les was facing tough questions. The New Democrats were accusing him of misleading the legislature and the public when he claimed last year that all child deaths in the province were being properly investigated.

Throughout the scandal, Les continued to insist that the problems were limited and things were back on track. All child deaths since 2003 were being properly investigated, he said, and the Coroner's Service had the authority and money to do the work. But through FOI, the NDP had turned up memos from the Coroners Service sent to Les months before he offered the reassurances, basically denying all of Les's claims.

There was more. Tucked inside the papers, perhaps by accident, was a hand-written note from Les's deputy minister. Some of the material to be released "contradicts what we have said to this point.... Suggest [this section] be severed," he wrote in his note to staff. The deputy did not advise concealing the records under section 13, but because it contradicted the government line.

'Insane new heights.' In the Province newspaper, Michael Smyth's headline to his May 2006 story told it all: "Liberals take secrecy to insane new heights." The government was now refusing the NDP's routine FOI requests for Premier Campbell's question-period briefing notes, despite always having released them before, with the claim these were under section 13. Wrote Smyth: "If they'll go this far to cover up their own pre-rehearsed sound bites, how far would they go to cover up something really politically damaging? As their aborted attempt to weaken the FOI law even further shows, they'll go as far as they can."

Don't give up on FOI

Several public bodies comply well with the B.C. FOIPP Act, even with tight resources. But some others brazenly and routinely violate the FOI law with an unappealing range of sullen passive-aggression, imperious disdain, runaway paranoia, and low cunning.

Unable to repeal the FOIPP statute itself, the government invents regulatory dodges. If it knows it cannot win an FOI dispute on the merits, it instead wears down the applicant with procedural roadblocks, in the hopes that he/she is unaware of the law, or will miss the 30-day deadline to appeal, or is unable to afford a court challenge, or will become too busy or lose interest in the case and so simply go away.

I could go on relating such examples until next week, as the applicants' Sisyphean tasks of pushing the rolling rock up the hill continues. (And yet as Camus said, "Sisyphus was basically a happy man.")

It's doubtful that anything less than a revolution in government's attitude could suffice to restore the blackened, battle-scarred FOI landscape. Fortunately, the FOI applicant doesn't need a law degree to succeed at the game, just a stubborn mulish obstinacy, the will to never, ever give up, to act like water dripping continually on a stone surface and eventually boring a peephole into it. Sometimes -- believe it or not -- the effort really is worth it.

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