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Rights + Justice

For True Transparency, Amend David Hahn's FOI Strategy

Instead, give FOI recipients two weeks before making info public. And more ideas to keep watchdogs sharp and hungry.

Stanley Tromp 4 Mar

Stanley Tromp is a freelance journalist, and the FOI caucus coordinator of the Canadian Association of Journalists (CAJ). His FOI website is here. The entire article can be read here.

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Remove watchdog's motivation, don't expect much barking.

[Editor's note: Yesterday we ran Stanley Tromp's interview with BC Ferries CEO David Hahn whose new practice of posting all FOI requests online as soon as they come in, and when they are filled, may be emulated by government. Today, Tromp argues against the practice, saying it will result in less, not more, journalism in the public interest.]

The campaign to prevent BC Ferries' FOI policy -- a politician's dream and a journalist's nightmare -- from spreading to any other government entity is the most complex, difficult, unpleasant and necessary challenge that transparency advocates have faced in many years. It is so difficult for FOI advocates, I concede, because to some it may appear -- at a superficial first glance -- to be arguing against their own expressed FOI principles.

Officials proclaim with faux-innocence that their only intent in posting completed FOI requests instantly to the world online is to promote "transparency." To accept this pious façade would be dangerously naïve. Governments often scoff that the FOI release dynamics are "inside baseball," too minor and complex for the public to care about. Nothing could be farther from the truth, because these dynamics can lead directly to the loss of vital stories.

My key point remains this: Since most members of the public will never make an FOI request themselves (being too busy, amongst other reasons), they depend on the press to do so on their behalf, which is its mandate. So, the practical reality is that the requests that the media file usually determine what the public will ultimately read. Anyone who understands the competitive news industry knows that the effect of such a needless instant mass release (without even a 48 hours grace period) is to scuttle the journalists' exclusives, and thus simply wipe out their incentive to file FOI requests in the first place, which, in turn, would lead to fewer record releases in the public interest.

Hahn told columnist Vaughn Palmer: "I find the complaints pretty childish. I mean, you've got people from different organizations saying that they believe in openness and transparency, and at the same time they say, 'But not that open and transparent.' I don't get it."

In fact, governments do "get it" only too well. They calculate that the public won't understand the logic of the paradox, and so they (persuasively) oversimplify the matter into a cute but deadly pseudo-irony: "See, are not the media selfish and hypocritical, by preaching for more openness but then asking government to delay record releases to serve their own interests?"

BC Ferries' practice also raises basic questions of fairness and civility. At times, much thought and research goes into the formulation of a well-crafted FOI request, and all that labour would now count for nothing. Moreover, why should any applicant pay thousands of dollars in FOI fees only to lose all of the records' value when government sends it out to the world to co-opt the applicant? Hahn also complains of some "silly requests." That can occur indeed, but is it a justification to penalize all the other applicants?

FIPA executive director Vincent Gogolek said, "Mr. Hahn doesn't think charging hundreds or thousands of dollars in fees is any barrier to access, but it certainly is for those of us who make less than a million dollars a year. If they had FOI law in 18th century France, Marie Antoinette would probably have said the same thing."


What I am asking for is simple, fair and doable: Amend the FOI law to state that when the government prepares to release records in response to an applicant, it will allow that applicant exclusive access to those records for a minimum grace period of two weeks, before it releases the records to anyone else, or for the world to read online. (Ideally it would be a four week period, to accommodate writers at weekly or monthly magazines. Sadly, quarterly journal and book authors would be out of luck.)

An even better solution would be to approximate the (now-defunct) CAIRS system in Ottawa for federal Access to Information Act requests. After a month or so pause after release to the applicant, some departments posted just the topic headings online, instead of the full documents, and new applicants could make a new, cost-free, expedited request for those already-released records. The Department of National Defense still follows this best practice, which could be a model for the B.C. government. (See this.)

When I wrote my first editorial on this BC Ferries practice in The Province on Feb. 13, public opinion seemed divided, with about half of the commentators -- all anonymous -- gleefully trashing my assertions. Yet a few came to the defense: "Stanley is correct. BC Ferries does their 'mass release' of FOI information specifically to stop reporters from making FOI requests."

Exceptions for urgent topics

The state's bluff of instilling more "transparency" is disproved when we see how the government's professed zeal for speed vanishes completely when it routinely violates its own legislated FOI deadlines with impunity, delaying the request processing for weeks for its own political advantages as it labours on a pre-release spin control plan.

Since it typically takes at least three months for the B.C. government to process an FOI request, in this context, an extra two weeks hold time (or even 48 hours) after release to the applicant should generally make no difference to it.

One reader angrily objected that I should not be calling for any FOI release delay on vital topics as child protection reports. I agree completely with him. Such releases should not be delayed for a minute if there is a true urgency factor, and my plan would follow the wording of the B.C. FOIPP Act's Section 25, the Public Interest Override. The government can already apply Sec. 25 for the purpose of instant release on health and safety issues and more, but for the past 18 years, significantly, it has not yet (to my knowledge) chosen to do so.

An old game, in new forms

BC Ferries' FOI practices are just one recent sign of a growing trend to stymie the media by what I call a Preemptive Information Release, or PIR, a rather old game in some ways.

The most famous recent example is that of a 2010 Olympic Games PR official leaking the records resulting from the CBC TV fifth estate's FOI request to the B.C. Coroner's office (on the death of a luger at the Games), one week ahead of the CBC broadcast, explicitly to undermine it. This case was even worse than usual, for the FOI record was leaked selectively only to "friendly media" -- such as the Game's official TV broadcaster -- instead of to all media at once, as BC Ferries does. Needless to say, few things delight governments more than to see journalists fighting amongst themselves instead of with the state, a divide-and-conquer strategy.

Who defines 'public interest'?

In this very hardball, painfully crude spin war, BC Ferries' worldview is apparently that most media FOI users are a sort of public enemy because they waste money, thus causing riders' fares to rise, and filter and distort the truth for their own selfish profit. The media see their role as disinterested seekers of the truth, and their interest represents the public interest. Both sides are fighting for the public's trust, asserting that they alone distribute the unalloyed truth and free the people's minds from the spin employed by the other side.

Many governments, of course, are delighted by the prospect of instilling such fear amongst newspapers -- who now struggle to stay afloat -- as a form of discipline. The state's potential to utilize this powerfully tempting FOI policy could be held in reserve against the media, as a screw to be turned at its whim, invoked if journalists allegedly go "too far," i.e., pursue scandals aggressively. I even wonder if such a vague continuous cloud might sometimes even result in media self-censorship, a bit more hesitancy to provoke the state.

It is quite likely that some form of BC Ferries' policy might soon be contemplated by all levels of government across Canada, and the world. ("I think that the days of government not posting it are pretty much over," said Hahn.)

A civic tragedy in the making

In sum, BC Ferries' policy of undermining the FOI system while at the same time glibly professing to enhance it is a tragedy for the public, the media and the government itself, more than we yet realize. In the end no one really wins, but everyone loses.

In retrospect, one might wonder if we all have taken our precarious FOI right too much for granted, and if the media's ability to roam freely amongst government records for stories was an illusion, one too good to last. In the context of the media's economic crisis and such FOI policies, it seems little short of miraculous how any good media FOI articles are produced today at all.

The media and Hahn could debate these points in convoluted, circuitous ways forever but never agree. We await guidance from the Information Commissioner on these questions, and although BC Ferries might not be moved by it, other public bodies could still be more enlightened. A very great deal is at stake.  [Tyee]

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