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Some Gains On FOI and Privacy, Says Gogolek, But Much More To Do

FIPA head’s parting thoughts after eight years on the front lines.

Andrew MacLeod 27 Feb 2018TheTyee.ca

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

Last Thursday, back from a farewell lunch with colleagues, Vincent Gogolek was cleaning out his desk at the Freedom of Information and Privacy Association, an advocacy group where he’d been executive director since 2010.

He moved into the top staff position after serving as the organization’s policy director but traces his interest in the issues the group champions back to the 1980s when the federal and provincial governments began passing freedom of information and privacy laws.

“I started off... filing FOI requests for various purposes, including writing stories,” Gogolek said. “It gets into you. You see the possibilities of what could be done with this. You also see how it’s not achieving its potential.”

He long had the feeling it should be much easier to get information out of government bodies and that there should be much more available. “Eventually I ended up being in a position where I was able to actually do something about it. Or at least yell about it.”

FIPA will be in good hands with Sara Neuert taking over as executive director, Gogolek said. And he expressed gratitude to founder Darrell Evans, the Law Foundation of BC, volunteers on the FIPA board, and the various information and privacy commissioners “who’ve listened to us with varying degrees of sympathy or annoyance over the years.”

Gogolek has commented on FOI, privacy and other topics frequently for The Tyee and other media, so we took the occasion of his retirement to get his thoughts on what’s changed, what still needs to be improved, and what he sees as the emerging issues.

Following is an edited version of that discussion.

Tyee: In your time yelling about FOI and privacy issues, what have been the successes?

Gogolek: Probably the biggest one in B.C. is the changes former commissioner Elizabeth Denham made in the interpretation of Section 25, which is release in the public interest. I don’t think we’ve seen the potential of that yet, but that is something that I think will pay off big time in terms of transparency in the years to come. We’re going to be seeing more pressure to have information released without the need for a request.

Is there another change you want to highlight?

There’s one that’s gone under the radar but which has a huge effect for individual requesters, especially people who are not using the act all the time. A few years back the government was cutting information out of releases all the time on the basis that it was “outside the scope of your request.” We were upset about this for a long time and we made arguments against it. Commissioner Denham and her adjudicators, in a series of cases, including one of ours, said, “You know what, this is not a proper interpretation of the act.” The wording of the act doesn’t allow you to do that. The Ministry of Children and Family Development in one of their submissions, arguing in favour to keep it, said they use it in 25 to 40 per cent of FOI requests they get. Suddenly that was gone. That’s something I think has been a real day-to-day improvement in the system without legislative change in the time that I’ve been here.

I know you have a list, but what are the remaining challenges?

Got a while?

Okay, what would be the top remaining challenge?

In terms of FOI, it’s probably duty to document. Making sure the records are created in the first place. Making sure the records aren’t destroyed. Getting rid of the records or not creating them in the first place undermines not just democratic accountability, but it undermines the proper functioning of government. If you don’t have records, you don’t know what’s going on. You don’t know what happened, you don’t know why certain decisions were made. That is terrible public policy. That’s a battle that’s being waged now and I think ultimately we will win because governments that resist this, I think that people watching that, the citizenry, will look at this and say, “What do you mean you can’t write things down? How hard is this? Didn’t you used to do this all the time?” It affects them. It becomes a question of the credibility of our government, or possibly even our system of government.

And on the privacy side?

One of the biggest ones is something we’re just starting to see the tip of right now, which is artificial intelligence and algorithms, especially when these are being used for decision-making. Right now, if you have a decision that you disagree with, normally you have reasons from the decision-maker and you’re able to look at those and you have the ability to challenge them. But if it’s a black box, and it’s “the computer told me to do that,” it undermines human decision-making and human judgment.

Can you give examples? What kinds of decisions are you talking about?

Credit worthiness. Are you credit worthy? There are various criteria the credit companies use to decide whether or not you are fit for whatever lending of whatever amount of money you are seeking. Do you have court judgments against you? Have you had loans and paid them back, things like that. Problems come up though when you have somebody who really doesn’t fit the model. Other things are happening. There’s a bank in the U.K. that’s looking at your Facebook friends, then they do data mining on them, and if they’re bad, well you’re getting marked down. Of course the ultimate is the social credit system they have going in China right now, which is a combination of public and private sector, which can affect your ability to travel, to get loans, to get access to housing, things like that. We have to make sure we don’t hand over unlimited unchecked authority to machines. To what extent is that going to come here? We don’t know but we have to watch for this.

We’ve had a new government in B.C. since July. What signals are you seeing about the direction they’re heading?

The minister of citizen’s services, Jinny Sims, has FOI and privacy reform in her mandate letter. She has said she takes her mandate letter seriously and intends to make things happen. Of course, we’ve also had two throne speeches where we haven’t even had a mention of it. That’s one of the reasons we and a number of other groups wrote a letter to the Premier today just to remind him of commitments they made during the election campaign. We think it’s time to get rolling on this.

What might hold them back from making the needed changes?

Governments have a number of demands on them, there’s only so much house time to pass legislation. And then things start to get messy, where FOI requests that were put in at the beginning when they took over start coming back and sometimes what it reveals is stuff that’s not particularly favourable to the government. It’s strange, but when that starts to happen, the enthusiasm for FOI reform tends to wane as well. I think it makes sense for them as a new government to contrast themselves with the inaction of what happened before. Hopefully they also have more of a feel that they might someday be in opposition and be trying to hold the government to account and would like to have suitable tools to do that. Call me hopeful. Hopeful but watchful.

What are your reflections on the challenges of the advocacy work you’ve been doing? How hard is it to push it forward?

It’s not hard to push it forward. It’s hard to get something to happen as a result of the pushing. You have to be flexible and you have to look for opportunities to have something positive happen. Depending on the circumstances, hopefully you have a government that’s actually interested in making things open and more transparent. Sometimes you have to try and force things. You have situations where there’s been something like Triple Delete, which was terrible. Also the rise of the “no responsive records” responses we complained about starting back in 2012. These are not good things to happen, but sometimes you can use those to illustrate for people. It just basically causes outrage. It makes it harder for the government to do that.

To what degree do you think the public understands these issues?

I think people generally don’t like having dark places where information can be hidden away. And any time you’re in a situation where that exists, I think people are uncomfortable with that. I think the public understands there need to be exceptions for things like records of police investigations, but things can’t be stowed away essentially because “we say so.” Right now we have a very, very broad exception for “policy advice” which is far beyond what the original drafters thought this would be, and that’s got to be brought back into line. I think people want a properly functioning access system. They want to see information getting out in a timely manner. If the functioning of the system gets thrown into question, then the functioning of the government and its legitimacy gets thrown into question.

How would you say the commissioner’s office is doing? Do they have the resources they need to address the complaints that come in and fulfill the rest of their role?

There’ve been a lot of complaints about delays in terms of getting things through a hearing, getting things moving, getting investigators assigned. One of the issues is we’ve had an acting commissioner for quite some time now, which isn’t the fault of the acting commissioner. This can’t be good for the stability of the office and it puts the acting commissioner in an unfortunate position where he doesn’t know how long his term is going to be. In terms of getting initiatives under way or longer term examinations, it makes it harder to do that.

You weren’t tempted to toss your hat into the competition for a new commissioner?

My hat was not at any time in that competition and is not now. I’m old. I’m retiring. I’m ready for relaxation, some travel. I’m not looking for a heavy duty new gig, exciting though it would be.  [Tyee]

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