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BC Gov't Could've Published Withheld Reports, Privacy Office Finds

Advocate feels vindicated that gov't wrongly cited laws to hide unflattering reports.

By Andrew MacLeod 6 Aug 2015 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria. Find him on Twitter or reach him here.

The British Columbia government is wrong to use the province's laws on freedom of information and protection of privacy as an excuse to avoid publishing embarrassing reports on the Internet.

That's how Vincent Gogolek, the executive director of the Freedom of Information and Privacy Association advocacy group, interprets a July 30 letter from the office of Elizabeth Denham, B.C.'s Information and Privacy Commissioner.

If government officials don't publish a report on the Internet, Gogolek said, "It's because they choose not to, not because of any legal impediment."

Gogolek complained to Denham's office in January about the government's failure to make reports that criticized the government available on the Internet. Examples included lawyer Marcia McNeil's review of the botched health ministry firings, and finance assistant deputy minister Rob Mingay's report on compensation at Kwantlen Polytechnic University, neither of which the government published online.

In January, when the McNeil report came out, assistant deputy attorney general Kurt Sandstrom said in an emailed statement that section 33.2 of the Freedom of Information and Protection of Privacy Act prohibits public bodies from disclosing personal information outside Canada.

"If the report were posted online, it could be accessed outside of Canada," he said. "To meet our obligations under the act, we cannot make the report available on a government server. The same was true of the Mingay report."

Right to access

Adrian Dix, the MLA for Vancouver-Kingsway, disagreed with the Liberal government’s assessment. "This is the government keeping embarrassing reports from the public, that the public paid for and the public has a right to have access to," he said at the time.

Commissioner Denham's office weighed in on the issue in response to Gogolek's complaint.

"I certainly understand your concern that failing to post these reports online may well undermine their transparency," wrote Nathan Elliot, a policy analyst in the OIPC. "It appears... the government could post these reports online pursuant to a minister’s order under s. 33.1(3) or s. 33.3."

In fact, the government has used orders under those sections to publish reports online in the past, including to post a summary of the McNeil report, Elliot wrote.

A spokesperson for the Justice Ministry said questions about the OIPC's findings should go to the Ministry of Technology, Innovation and Citizens' Services, which is responsible for the FOIPPA.

That ministry's spokesperson said in an emailed statement that the government "relies on the advice of trusted professionals when determining whether an investigative report or aspects of an investigative report can be publicly posted or released."

Elliot wrote in his letter to Gogolek that the issue, and any other concerns, should be brought to the attention of the legislature's special committee that began a review of the province's FOI law in May.

Gogolek said he's hopeful the legislature will want to fix the law to make the release of reports more straightforward and consistent with the law's overall aim to make it possible to hold the government accountable.

The ministry spokesperson said the government welcomes that discussion.  [Tyee]

Read more: BC Politics

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