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Bill 22 Is a Sign of Democratic Backsliding in BC

Its passage changes our freedom of information and privacy law, undermining the public’s right to know.

Vincent Gogolek 26 Nov 2021TheTyee.ca

Vincent Gogolek is a retired lawyer and the former executive director of the BC Freedom of Information and Privacy Association.

Democratic backsliding: It’s a term that political scientists have coined to describe how democratically elected governments act to undermine the system under which they were put in power.

That term is most often used to describe the actions of leaders like Hungary’s Viktor Orban, or former American president Donald Trump in dismantling of institutional restraints on the power of the leader.

There are three principal areas that come under attack in democratic backsliding.

The first is undermining the independence of third parties whose role is to act as a check on executive government, such as the courts, independent officers of Parliament or other similar bodies. The second is undermining civil liberties and rights of citizens (individually or in groups). The third is actually undermining the electoral and legislative process itself.

So how does this apply to B.C. today?

The major and often negative changes to the freedom of information and privacy law being brought about by Bill 22 is a major undermining of the public’s right to access information from government. This is a quasi-constitutional right, and is a key element in allowing citizens generally, but also the media, political opposition and other groups, to get the unfiltered information they need to hold government accountable.

The original bill would have removed the Office of the Premier from the list of government bodies that are subject to FOI requests, though it’s since been reinstated by government amendment. The bill does allow the government to bring in application fees for FOI requests, and the number the government has suggested was $25 per request, which would tie this province with Alberta and Nunavut for highest fees in the country.

It is perhaps fitting that these new application fees would be set behind closed doors by regulation. This means the new FOI fees would be set by cabinet, not by a vote in the legislature.

A number of other major changes would also be done by regulation, and none of those draft regulations have been shown to either the legislature, nor to the information and privacy commissioner, who has outlined a number of other ways this bill undermines information and privacy rights.

As bad as the content of this bill is, the timing and process by which it was introduced also undermines the legislature and its committees.

Most concerning is the fact that a Special Committee of the Legislature has been established to review the Freedom of Information and Protection of Privacy Act, something that is required by Section 80 of the law itself.

The committee must present its report to the legislature by June 2022, but the act it’s supposed to comprehensively review over the course of a year has now been substantially changed by the B.C. government. The committee hasn’t heard from any witnesses yet and has only held an initial meeting to elect a chair and vice-chair.

Now that the bill has passed into law (after the government rammed it through by using time allocation to cut off debate), it will leave the Special Committee six months to do the work the law gives it a year to do.

So why would the government undercut the committee this way? Wouldn’t it make more sense to let the Special Committee do its work, write its report and then respond afterward?

One problem for the government is that previous Special Committees have not only proposed positive changes for the FOI and privacy law, but they have consistently rejected a number of the measures being proposed in Bill 22. It would probably seem less embarrassing for the government to bring in these negative changes before a unanimous Special Committee recommends against them.

There is also the election timing angle. Governments often bring in unpopular laws early in the mandate in the hopes that voters will have forgotten by the time they go back to the polls.

Finally, the government has also proceeded in the face of serious complaints about lack of consultation and the negative effects these amendments will have on First Nations. These were set out in a letter to the premier from the Union of BC Indian Chiefs earlier this week before the bill was rushed through the legislature, setting out a number of ways this bill undermines rights in the United Nations Declaration on the Rights of Indigenous Peoples and the B.C. law implementing it in this province.

So, does this mean Premier John Horgan is turning into Viktor Orban or Donald Trump?

Not yet, but that is the danger of democratic backsliding — each time democratic safeguards are undermined, it makes the next attack easier.

Even if Horgan isn’t in the ranks of the autocrats, he is certainly sounding a lot like someone who would dearly love to get rid of freedom of information — Tony Blair, the former U.K. Labour prime minister. Blair was actually the one who brought in the U.K.’s Freedom of Information Act but has since denounced it in his memoirs.

“Freedom of information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.”

Blair was unhappy that his own law was used to unearth information that made him and his government look bad. Unfortunately, the lesson he draws from this is not to correct the mistakes that FOI brings to light, but to make sure no negative information gets out to the public in the first place.

It is time for the B.C. government to state publicly whether or not they agree with Tony Blair and think that freedom of information laws are “utterly undermining of sensible government.”

But maybe their actions speak louder than words.  [Tyee]

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