Two months ago, while investigating the provincial government’s new contract with Maximus Ltd. to outsource Pharmacare and MSP services in B.C., The Tyee requested a copy of the government’s contract with the U.S.-based company. Maximus had mismanaged public money in several U.S. states, and a review of the contract’s safeguards seemed to be in the public interest.
Initially, the Ministry of Health Services refused to let The Tyee see the contract for what it said were “proprietary reasons.” However, after The Tyee filed a request under the Freedom of Information Act, the contract became available — for a price tag of nearly $1,200.
To say The Tyee runs on a shoestring budget is an understatement — it barely has enough money to buy the shoestring to run its budget on. It cannot afford to pay $1,200 to see if the government safeguarded citizens’ rights while outsourcing services to an American firm with an uneven record of managing public money.
The Tyee appealed these costs but the provincial government has not yet responded.
The incident highlights the problems journalists face accessing government documents.
Management Services Minister Joyce Murray, whose ministry oversees the FOI process, said a $1,200 price tag on a contract seems excessive, but she assumed it had to do with the complexity of the 1,500-page document. And Murray said she knows of no instance where bureaucrats have intentionally frustrated an FOI request.
Contracting out changes rules
However, government outsourcing, public-private partnerships and the privatization of services like BC Ferries are increasingly putting provincial expenditure of public money beyond the scrutiny of the public, elected officials and even government auditors.
The Coastal Ferry Act puts the new quasi-private BC Ferry Services Inc. beyond the reach of the B.C. Auditor General, the Ombudsman, FOI laws, and in some instances even the independent ferry commissioner who oversees the company.
Two weeks ago, after TransLink granted the contract to build the new Richmond-Airport-Vancouver rapid transit line to SNC-Lavalin, Cambie Street merchants discovered that “cut and cover” construction on the RAV line would result in massive disruptions on the street. During the bidding process, they believed that tunnel-boring methods would be used.
Prior to the bidding process, a PriceWaterhouseCoopers analysis of projected costs and ridership for the line was kept from the public, and even from elected officials on the TransLink board, on the grounds that revealing the information would undermine the bidding process.
Unions concerned about contract language affecting the outsourcing public-service jobs to private contractors have also been frustrated. The Canadian Office and Professional Employees Union went to court to get the details of a provincial contract with Accenture Corporation to operate parts of BC Hydro. The B.C. Supreme Court ruled against COPE, denying the challenge and affirming the rights of private firms to have their dealings, and methods, protected from public scrutiny.
And it’s not just a problem in this province, where in 2001 Premier Gordon Campbell promised “the most open … government in Canada.” Across the country, journalists and elected officials are increasingly frustrated by government efforts to subvert the very rules they’ve created to ensure transparency in public business.
Transparency ‘critical’ to confidence
“The whole system has collapsed in Quebec,” lawyer Mark Bantey, who represents several papers across the country including the Globe and Mail and the Montreal Gazette, told The Tyee. “It’s become a bit of a joke.”
“At all levels, municipal, provincial, federal, [governments] do their best to drag the whole process out. They’ll make preliminary motions to dismiss the access request on technical grounds, or say we’re seeking the information for improper purposes. And this tends to drag it out,” Bantey said.
David Sutherland, a Vancouver-based media lawyer who represents roughly 80 newspapers, magazines, and other media outlets across the province, said B.C. government officials use the same techniques.
Sutherland said many of his cases involve provincial ministries frustrating FOI requests. “The public’s right to know is critical, and it is very vulnerable to exactly the abuses that are endemic at this time. It’s very hard to get the public upset about this type of thing because it’s a bit abstract. But it’s absolutely critically important to the character of our society, to the integrity of government and the honesty within government,” Sutherland said. “Let us assume that there is some.”
Quebec politicians exempt
In Quebec, one FOI issue took 10 years to resolve, and the government got to keep its secrets. According the Bantey, in 1993 a Montreal Gazette reporter investigated how one National Assembly of Quebec member used his $100,000 operating budget to hire his mistresses and buy computer equipment that no one could find.
The assembly member was dismissive of the allegations. In fact, there were no restrictions on how assembly members’ budgets were to be spent. So the Gazette filed a freedom of information request to see exactly where taxpayers’ money was going.
The assembly members were not willing to part with that information. The decade-long fight to disclose the information went all the way to the Supreme Court, where the effort was defeated by a 5-4 vote. The Supreme Court ruled that while the assembly itself was subject to access to information laws, the assembly members were not.
“The dissenting judges said it’s a bit absurd that the national assembly is subject to the access to information law, but not its members. What is the national assembly? It’s the members,” Bantey said.
While leaks and whistleblowers are important, they’re not always there when you need them, so freedom of information requests have become one of the most important tools reporters have to hold governments accountable.
FOI revealed sponsorship scandal
Freedom of information requests are central to some of the most important reporting being done today. Without them, the sponsorship scandal that continues to dog the federal Liberal government might not have come to light.
But as reporters get better and more aggressive in filing these requests, governments have become equally crafty at avoiding them.
Sometimes governments simply delay their response, Sutherland said. Exceptions and exclusions can be used “in the most ridiculous manner,” like the case in Quebec. In B.C., sections 13 and 14 of the Act say certain types of policy and legal advice are protected from being shared. But instead of simply blacking out such advice, the sections are being interpreted to mean any document containing such advice is completely unavailable.
As well, freedom of information legislation has changed how government is run, because officials now simply don’t write down anything they don’t want made available through the act, Sutherland said.
Cost is also used as a deterrent, Sutherland said.
Every freedom of information act has rules to establish the cost of processing a given request. Some exceptions are made, mainly involving issues of public interest or safety. However, these rules are often rigidly interpreted to frustrate a request.
Cost an effective deterrent
Imposing high costs on a request is an extremely effective deterrent, particularly for smaller publications or freelance reporters. The $1,200 price tag has certainly frustrated The Tyee’s ability to examine the Maximus contract to see if it protects the public interest.
“The big dollar demand may be a symptom of not being specific enough in the request, or because you are on to something,” Sutherland said. But unless the publication is willing to fork over the cash for its request, it is impossible to tell.
“By the time you’re phoning a lawyer like me, you’ve already lost. This is something a journalist has to be able to do on their own, because once they hire a guy like me and start paying an hourly rate, the government is publicly funded and they’re going to string it out as long as they can.
“At that point, it’s economically not viable for The Tyee or anyone else to play the role of public watchdog.”
Alasdair Roberts, a professor of public administration at the University of Syracuse, has been studying the FOI process both federally and in B.C.
Roberts said that in an effort to streamline their FOI systems, both the federal and B.C. governments have created a central database to coordinate FOI requests. The data in these central databases are accessible through the act and Roberts has analyzed how the government prioritizes these requests.
Both the federal government and the B.C. government give sensitivity rankings to requests that are based on what is being asked for and by whom.
Governments ‘wising up’
Roberts said that federally “requests that come from journalists and political parties are caught by special procedures” that result in delays that can’t be accounted for because of nature of the material or the breadth of the request.
Although Roberts discovered that in B.C., journalists’ requests receive high sensitivity rankings, and responses time are often longer than for other requests, it’s not yet clear that the B.C. government is doing what the federal government is doing, because he hasn’t analysed the breadth or type of requests involved.
Roberts said governments have become more sophisticated in the techniques they use to minimize the political fallout from the disclosure of politically sensitive material. “Everybody in a sense is wising up about how to use the system,” Roberts said.
B.C. Management Services Minister Murray said the sensitivity rankings are for flagging complex requests that cross ministries or are meant to alert ministers that an issue has been raised so they speak to it if there are any questions. Journalists’ requests often take longer than other requests because of their complexity, not because of an intentional delay, Murray said.
Process is ‘non-partisan’
“It’s non-partisan civil servants who do the assessment of how much work it will take to prepare the records,” Murray said. “This is managed by civil servants. They have legislation that they must adhere to. They have time limits they are required to meet and there are very specific instances when time limits can be extended.
“Fees are not intended to be a barrier to access and yet the legislation does set down a schedule of fees and a price for the per hour cost,” she said.
“I will not tell a ministry how much they should or should not charge or whether there should be a charge. The legislation governs that and the bureaucrats involved make their best assessment to provide the records,” Murray said.
A legislative committee that convenes every six years to examine the FOI act. They last met in 2003 and the amendments they made were largely focused on safeguarding citizens’ records from the U.S. Patriot Act, so government services could be handled by multinational firms.
The federal system is also under scrutiny, and NDP MP Pat Martin has spearheaded proposed reforms. His private member’s bill was headed before parliament before it dissolved last year. Reform has been proposed in part because only 46 out to 249 crown corporations are subject to freedom of information requests, Martin said.
Feds consider broad reform
Justice Irwin Cotler has promised to champion the reforms laid out in the bill, Martin said.
Under the reforms, the act would include all Crown Corporations, including the CBC and the Auditor General. It would also include independent foundations, MPs, ministers and their staff, and any not-for-profit organizations that receive more than two-thirds of their funding from the feds, Martin said.
“I’m of the view we could have headed off a lot of the recent scandals, such as the sponsorship scandal, if the public had the right to know, if the opposition parties had access to, information they are currently barred from,” Martin said.
One of the pieces of legislation brought in with the provincial Patriot Act reforms was a whistleblower amendment to protect anyone who goes to the privacy commissioner with information about abuse of the act or misuse of information by American contractors.
Darrell Evans, a reform advocate with the B.C. Freedom of Information and Privacy Association, believes the whistleblower legislation is a valuable reform. “Anybody who heard of information given or illegal practice, they can go to the privacy commissioner. No one has blown the whistle yet, but it’s bound to happen,” Evans said.
But this one reform doesn’t begin to address the problem created by the wide range of information put beyond public reach by the private contracts our provincial government increasingly employs.
Scott Deveau is on staff at The Tyee.