Another Failure for Freedom of Information in BC

It’s been just over two years since the BC NDP government passed Bill 22, a controversial rewriting of the Freedom of Information and Protection of Privacy Act.

The bill brought in major changes to the FOI and privacy regime in this province, some positive (penalties for destroying records related to an FOI request) but many negative (imposing an application fee for the first time, eliminating the requirement for domestic data storage).

The timing of the bill was also controversial. The government rushed it through in the fall of 2021.

This was despite the fact a special committee of the legislature had already been established in June 2021 to carry out a review of the FOI and privacy legislation as required by law.

An attempt by the Liberals — now BC United — to have Bill 22 moved to the special committee for review was defeated by the government. A question of privilege raised by BC Green MLA Adam Olsen seeking the same outcome was rejected by the Speaker on procedural grounds.

This left the special committee in a bind. It couldn’t ignore the situation it had been put in even if it wanted to. Witness after witness pointed out the absurdity of having committee hearings into a law that had just been passed.

The special committee’s terms of reference required it to submit its report to the legislature by June 2022, which would give them only six months to accomplish what previous review committees had taken a year to do.

So what would — what could — they do? Let’s see what, unanimously, the special committee members had to say about it.

“Woven through much of the members’ discussion was the unique context of this particular statutory review, during which government introduced significant amendments to the act.

"Members expressed differing views on some of the amendments, and therefore the special committee did not make recommendations in those areas. However, the special committee recognized the need for a fulsome review of the impact of these changes, and recommends that the Legislative Assembly appoint a special committee within two years of substantive changes being made to the act to conduct a targeted review of those changes, in addition to the regular requirement for a statutory review every six years.”

The compromise they arrived at was to recommend that the legislature set up another special committee to have an in-depth look at the effect of the Bill 22 amendments after sufficient time had elapsed to be able to see what effect they were having.

So what happened? The legislature adjourned at the end of November 2023, but no special committee was created.

Is this yet another opportunity that will fall by the wayside?

Maybe not. Each of the parties that signed on to the report and its recommendation of a special committee has good reasons to push it forward.

This will be an election year, and the government will have its throne speech next month, which will set the agenda for the run-up to the vote.

If the NDP is looking for a way to look more open and transparent, then being proactive and setting up a special committee of the legislature to examine the unpopular changes they brought in two years ago might be a way to do it.

If they are not interested in this re-examination, the three other parties in the legislature could make some noise.

BC United had been struggling in recent polls and will be looking for an issue to go after the government on. Pushing for a special committee that all parties have already agreed to might look like an easy win for them.

Conservative Leader John Rustad was vice-chair of the special committee back when he was still a Liberal. Perhaps this might make him more inclined to push for better FOI and privacy laws.

Olsen of the Greens introduced a private member's bill last February that would eliminate the $10 application fee brought in by Bill 22, so he has shown an interest in reforming the system. Maybe the Green Party will make a push for a special committee.

Sadly, we have seen other instances where all the parties agreed on measures to improve FOI but still failed to do what they all agreed needed to be done.