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Foiling Freedom of Information

Gordon Campbell promised the FOI process would be easier, cheaper and solidly funded. The opposite has happened.

Russ Francis 28 Apr
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Second in a three part series on 'open government' in BC

BC's Freedom of Information Act and Protection of Privacy Act was designed to give political parties, businesses, reporters and the average citizen keys to unlock official facts otherwise hidden away. The law, passed in 1993 under Mike Harcourt's New Democrats, requires the provincial government to respond to formal requests for information, including specific documents.

As such, the FOI act is arguably the most important measure ever undertaken in the direction of open government by any B.C. regime.

And when Gordon Campbell's Liberals were in opposition and campaigning in 2001, they promised to strengthen the effects of the law by making FOI requests less expensive to file and broader in scope.

Instead, since the BC Liberals have been in office, the cost of filing FOIs has if anything increased, as have delays in receiving. And in a critical blow to the process, the Campbell government has gone back on a promise by slashing the budget for the government agency that polices FOI requests.

Liberals were avid FOI filers

The B.C. act is stronger than any of its Canadian counterparts, and considerably more powerful than those in many other jurisdictions, covering, as it does now, not only government ministries and most Crown corporations, but health authorities, universities, colleges, municipal governments and even the self-governing professions such as the Law Society of B.C. In all, more than 2,000 such "public bodies" are covered by the act.

In opposition, the Liberals made heavy use of the FOI law. In 2000-the last full year of the Liberals' opposition--political parties filed 731 FOI requests of the government, according to records supplied The Tyee by the management services ministry.

Though official records don't reveal which parties filed the requests, it's a pretty safe bet that the vast majority of them came from the Liberals.

Yet by 2002, the first full year of the Liberal government, the number of requests filed by parties fell to a mere 52. It is likely that almost all of those came from the by then resource starved NDP opposition.

Making info expensive

As heavy users of the FOI law in opposition, the B.C. Liberals continually complained about being hit with large fee assessments by the NDP for the records they sought. Although there is no fee to apply for the records, public bodies are entitled to assess applicants for any costs of searches that exceed three hours, as well as for photocopying.

By routinely responding to requesters with heavy fee estimates, public bodies can easily discourage citizens-and opposition parties-from making requests in the first place. While it is true that fee estimates can be appealed to the office of the information and privacy commissioner, that means a lengthy delay to obtain records that could easily be stale by the time they arrive. Thanks to dragged-out appeals, several of my FOI requests have taken more than 18 months to resolve.

During the estimates debate for the premier's office, on July 22, 1998, then-opposition leader Gordon Campbell summed up his party's position on fees for FOI requests. "There are a number of things that I think we do need to do to reinvigorate our public institutions, to re-establish trust in our institutions," Campbell told the house. "Freedom of information is really one of the easier ones. It's direct; it's simple. It says simply: Make information available when people request it, as opposed to trying to stop them and sending them large bills to get the simplest information."

If Campbell were to be believed, a Liberal government would halt the practice of demanding big money in exchange for public records. Unfortunately, while I am aware of no government policy to encourage public bodies to assess fees, my own experience is that there has been a sea change since the Liberals took office. There appear to be no official figures for the number and amount of fee estimates.

Previously, fee estimates were extremely rare for the hundreds of requests I make each year. Now they are the norm. Many kinds of requests that would previously have cost nothing, these days come back with an assessment of a four-figure fee.

Of course, that might be just a coincidence.

Slashing the commissioner's office

Before the 2001 election, the B.C. Freedom of Information and Privacy Association asked then-opposition leader Gordon Campbell a series of questions concerning freedom of information. In a letter dated April 17, 2001, Campbell offered some reassuring answers.

Perhaps the most important: Campbell made a commitment about the funding for the Office of the Information and Privacy Commissioner.

The office is a crucial one for FOI applicants, since it is the independent agency that deals with requests for review and complaints, as well as conducting inquiries and making orders when disputes between applicants and public bodies cannot be mediated. The office is, in effect, the policing agency for FOI.

Here's Campbell's promise: "Our commitment to open government means providing a stable funding base for the information and privacy commissioner's office to ensure that the office has the resources it needs to discharge its statutory mandate."

Campbell's letter went out just one month before the election. But once elected, his government reneged on that "commitment." Rather than "providing a stable funding base" for the office, which was never extravagantly funded in the first place, the Liberal government slashed its budget by 35 percent over three years.

Consequently, there are now long delays in appeals, and some applicants likely now simply drop unsuccessful requests rather than having to endure waiting a year or more for the appeal process to conclude.

Given that the office has new responsibilities, administering the personal information protection act-which extends the protection of privacy to the private sector-and the lobbyists registry, the cuts were felt even more strongly.

On December 7, 2004, the legislature's finance and government services committee recommended that the office's operating budget be increased for the 2005-06 fiscal year-by a mere $78,000. That comes to less than four percent, and the committee recommended freezing the budget at that level for the following two years.

Shielding MLAs from scrutiny

In addition to the office's budget cut, the Liberals failed to act on another promising statement made before the election. In the same April 17, 2001 letter to the B.C. Freedom of Information and Privacy Association, Campbell offered hope that a Liberal administration would do what the NDP had steadfastly refused to do. His government would consider extending the FOI law to include the administrative functions of the legislature itself, Campbell said in the letter.

That would correct a curious imbalance in the act's coverage. For example, all it takes is a simple FOI request to obtain details of a deputy minister's spending on furniture for her office. But since the legislative assembly is exempt from the act, it is simply not possible to do the same for MLAs' office furnishings.

Expanding the law's coverage in this way, explained Campbell, would "ensure that the legislative assembly is accountable to taxpayers, and [would] thereby enhance public confidence in the institution of parliament."

But once in office, the BC Liberals failed to act on Campbell's stated interest in adding the legislative assembly itself to the FOI law's coverage.

Yesterday: 'Open, Transparent and Accountable'

Tomorrow: Shutting out the Public

Russ Francis is a veteran legislative reporter based in Victoria. He writes for Monday magazine and a variety of other publications. This article is adapted from his chapter in Liberalized: The Tyee Report on British Columbia under Gordon Campbell's Liberals.  [Tyee]

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