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BC Leg Mounts Constitutional Challenge to Keep Records Secret

Aims to overturn info commissioner's order to reveal minister calendar entries.

Stanley Tromp 5 Oct

Stanley Tromp is FOI caucus coordinator of the Canadian Association of Journalists (CAJ). Read his previous Tyee articles here.

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Gov't challenging an info commissioner's jurisdiction is rare in Canada.

The provincial government is mounting a constitutional challenge against the powers of the B.C. information commissioner.

It is trying to overturn an order of last Dec. 7 that government cannot hide parts of ministers' records from Freedom of Information Act requestors with the claim that these are "out of the scope" of the law. The order about my FOI request was issued by adjudicator Jay Fedorak in the office of the B.C. Information and Privacy Commissioner.

On Aug. 9, the Legislative Assembly applied for a judicial review in B.C. Supreme Court to overturn that ruling. Then on Aug. 27, it appended that appeal to add a constitutional challenge. (The case will be heard on Oct. 22.)

It is one of the very few times in Canada that a government has mounted a constitutional challenge to an information commissioner's jurisdiction.

The Legislature's lawyers are pleading that, according to section 8 of the Constitutional Questions Act (1996), the commissioner "lacked jurisdiction" to order the disclosure of the calendar entries, writing:

"There is a constitutional guarantee of parliamentary privilege that, regardless of the provisions of FIPPA, restricts access rights of members of the public to information related to MLA functions, and the commissioner's powers to order a public body to give access to information related to MLA functions."

The Legislative Assembly of British Columbia is the petitioner, while the Ministry of Transportation, the Information Commissioner's office, its adjudicator Fedorak, and myself are named as respondents.

'Hand over the records': Gogolek

"I don't understand how the Legislature even gets to bring this to court," said Vincent Gogolek, executive director of the B.C. Freedom of Information and Privacy Association (FIPA). "The two ministries were the parties at the OIPC hearing, and if the Legislative Assembly was an intervenor, intervenors don't get to appeal decisions they don't like.""The order should stand and the government should just hand over the records as ordered by the commissioner's office. This is more delay at the taxpayers' expense, since we are paying for all these lawyers to argue this case. Given the recent revelations by the auditor general about how little transparency there is in how the Legislative Assembly operates, they should probably have thought twice about going to court to block these FOI requests."

The background: In April 2009, this reporter filed an FOI request for the daytimer of meetings of the B.C. Transportation minister from Jan. 2002 to June 2004. (That is about 1,200 meetings noted for Judith Reid, then 900 entries for Kevin Falcon. These records are just mentions of who the minister was set to meet with, and what date and time, with no subject matter.)

My hope was that the records might shed a bit of light on the events surrounding the BC Rail controversy and the Dec. 2003 police raids on the Legislature.

The Ministry released some of the records (although it could not locate any from Jan. 2002 to Jan. 2003). But it withheld five per cent of the daytimer entries, those relating to the minister's MLA constituency or party caucus activities, saying those are outside the scope of the FOIPP Act.

I appealed to the commissioner, and emphasized that it was not my wish to view records of MLAs' constituency meetings, which are indeed legitimately private. Such release would not have been possible anyways, and almost surely never will be, because these records are exempted under FOIPP sec. 22 (privacy protection). I agreed that they could be withheld, but wanted this to be done under the correct legal grounds.

On the defense

This is an old problem. Ever since independent officers of the Legislature, were created -- such as the information commissioner, the ombudsman and the auditor general -- they have often been opposed by public agencies keen to protect their own turf, powers and secrecy.

At times, their offices seem almost under siege. In 2009 for example, the B.C. information commissioner sought a $400,000 legal budget to cover the growing number of court challenges to his rulings by public bodies. As columnist Vaughn Palmer noted, "No wonder he wants to be able to hire his own high-priced legal help to stand up to all the government-funded lawyers swarming over him and his office."

The last time the B.C. government tried to challenge the commissioner's authority was in regards to my 2007 complaint about FOI and Crown Copyright.

For years I had received "notices" slipped inside packages of documents mailed to me in response to some of my ministerial FOI requests. These warned me that: "These records are protected by copyright under the federal Copyright Act, pursuant to which unauthorized reproduction of works is forbidden."

I complained to B.C.'s then information commissioner, David Loukidelis, an inquiry was begun, and a ruling was expected. Then the attorney general tried to shut down the inquiry entirely, by challenging the commissioner's jurisdiction to investigate my complaint, with the claim that he may only rule on FOI issues but not on Copyright Act matters.

This issue was resolved -- and the jurisdictional dispute set aside -- after Loukidelis met with officials, and they agreed to stop sending crown copyright warnings, except in very rare cases.

Other challenges across Canada

As it is the supreme power in the land, some argue that the Constitution (with its Charter of Rights) can override all other statutes, such as freedom of information and privacy laws.

Former Alberta information and privacy commissioner Frank Work told The Tyee he was never taken to court on his constitutional jurisdiction, and Saskatchewan's commissioner Gary Dickson reported the same thing for his province, as did a spokesperson for the Ontario commissioner. (Work did add however that the Alberta Court of Appeal just struck down a large part of Alberta's private sector privacy, or PIPA, as unconstitutional, a move that "almost guts the act.")

A lawyer for the federal information commissioner's office noted two constitutional challenges to that office's powers.

In the first in 2000, William Rowat challenged the commissioner's jurisdiction to investigate a complaint that he had breached an applicant's privacy in the processing of an access request. He also challenged the constitutionality of the commissioner's power to compel him to answer questions. The Federal Court dismissed Rowat's appeal, because it said the Access to Information Act "places no limits on the subject matter required to be investigated by the commissioner."In the second federal case, in 2004, the act authorized the commissioner's delegate to impose confidentiality orders upon witnesses who give evidence to the office. Yet the court said those gag orders breached the right of the individuals to freedom of expression, as guaranteed in the Charter of Rights, section 1.  [Tyee]

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