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Government Stalling FOI Requests from Fired Health Workers, Lawyers Say

Delays block full participation in ombudsperson’s review, push records release past election.

Andrew MacLeod 14 Dec

Andrew MacLeod is The Tyee’s Legislative Bureau Chief in Victoria and the author of A Better Place on Earth: The Search for Fairness in Super Unequal British Columbia (Harbour Publishing, 2015). Find him on Twitter or reach him here.

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Harold Roderick MacIsaac killed himself after the health ministry fired him. Lawyers acting for his sister and others say government is blocking his families’ efforts to participate in the inquiry into the botched firings.

The B.C. government is stalling the release of documents that three of the people harmed by health ministry firings in 2012 need to participate in ombudsperson Jay Chalke’s review, their lawyers say.

The lawyers wrote the Office of the Information and Privacy Commissioner Tuesday and warned that if the office allows the government to delay the documents’ release, their clients won’t get the records they are legally entitled to until after Chalke’s review is expected to be completed this spring, and after the May 9, 2017 election.

“The ministry has had nearly 10 months to comply with our clients’ [Freedom of Information] request, yet to date we have not received a single responsive document,” wrote lawyers Joanna Gislason and Gary Caroline. “There are by now reasonable grounds to suspect that the government is taking an obstructionist approach to our clients’ FOI request.”

The firm is representing fired health ministry employees Ramsay Hamdi and David Scott, as well as Linda Kayfish, whose brother Roderick MacIsaac committed suicide a few months after he was fired from a co-op position with the ministry.

The three were among seven people fired from the ministry over what officials said at the time had to do with breaches in data management, contracting and possible conflicts of interest.

Government officials, including Premier Christy Clark, have since admitted the process that led to the firings was badly botched. Some employees have returned to work for the government, five lawsuits were settled out of court, and Chalke is now investigating what government decision-makers did wrong. A previous investigation by labour lawyer Marcia McNeil failed to answer key questions about who ordered the firings and why.

“Our clients, having been repeatedly mistreated by this government, require access to relevant documents concerning them before they can determine whether and to what extent they might participate in the ombuds process,” wrote Gislason and Caroline in their letter.

The records regard the wrongful terminations and “the government’s perpetuation of the lie that an RCMP investigation into alleged misconduct was underway when in fact it never existed,” they said.

They made requests for those records in February 2016 to the health ministry and the Public Service Agency, the letter said. Both agencies have requested repeated extensions to the deadline for releasing the records.

Most recently, the health ministry requested an “exceptional 180-business-day extension” that would allow it to delay its response until Sept. 6, 2017, the lawyers wrote.

“We categorically object to any further delay and insist that your office fulfil its statutory mandate by compelling the release of public records initially requested almost a year ago,” they said.

They also objected to the fact the commissioner notified them of the request for an extension just three business days before the response was due.

“Respectfully, it would appear that neither your office nor the ministry has any intention of giving effect to the Dec. 14 deadline. Indeed at this point, even if your office were to affirm the Dec. 14 deadline, there is no realistic possibility that the ministry would comply with it.”

A spokesperson for the health ministry did not answer The Tyee’s detailed questions and request for an interview with Minister Terry Lake by publication time.

Erin Beattie, a spokesperson for the Office of the Information and Privacy Commissioner, said she couldn’t answer specific questions about an active file.

In general, while the law requires public bodies to respond to requests within 30 business days, they may take longer under certain conditions, she said in an email. Those conditions include needing to consult with a third party or another public body about the release of the records, or if “a large number of records are requested or must be searched and meeting the time limit would unreasonably interfere with the operations of the public body.”

Gislason and Caroline’s letter said they had heard from the OIPC that the health ministry says the request involves a large volume of records, about 150,000, and that it needs time to complete consultations with the Public Service Agency.

“150,000 records is hardly a debilitating volume given the ministry’s considerable resources and the fact that the ministry has already had nearly a year to review the requested records and complete any necessary consultations with the PSA,” they wrote.

“It would seem that either (i) the ministry has not been diligent in fulfilling its obligations under [the Freedom of Information and Protection of Privacy Act] or (ii) the ministry is seeking to delay disclosure of the requested documents as long as possible,” they said. “Neither explanation merits an extension.”

The government’s delay in responding suggests a “cynical and secretive” approach to the FOI process, they said. “Whether intended or not, the effect of the ministry’s conduct is to preclude our clients’ informed participation in the ombuds investigation. Your office is empowered and indeed obligated to put a stop to this.”

Adrian Dix, NDP MLA for Vancouver-Kingsway, said the government should not be allowed to delay releasing the records.

The firings have been the subject of much public debate, the ombudsperson is investigating and the government has already been forced to admit its misconduct, Dix said.

“When they want to move quickly, they move quickly,” he said. “And when they want to slow things down and obstruct people, they obstruct people. That’s been the case throughout this process. This is more obstruction.”  [Tyee]

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