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Libs Poised to Slam Lid of Secrecy

Latest bills shut out public, invite scandal and waste.

Stanley Tromp 9 May

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"We will bring in the most open and accountable government in Canada. I know some people say we'll soon forget about that, but I promise that we won't!" - Newly elected B.C. Premier Gordon Campbell, victory night speech, 2001

"It amuses me to see the profound change in attitude about access to information which occurs when highly placed insiders suddenly find themselves on the outside. And vice versa! … For the most part, officials love secrecy because it is a tool of power and control, not because the information they hold is particularly sensitive by nature." - John Reid, federal Information Commissioner, 1999

More legislative shock waves keep coming from the BC Liberals led by Premier Gordon Campbell, who, in 2001, promised to bring in "the most open and accountable government in Canada."

Last week, Bill 23 was introduced, which would allow government to keep secret the final reports of public inquiries. Now, we face Bill 30, which could seal information about nearly ANY of government's financial arrangements with the private sector.

Both were inexplicably introduced by Attorney General Wally Oppal, who was once regarded as one of B.C.'s most accessible and enlightened jurists. The Liberals have yet to fully explain why they have created these startling attacks on the public's right to know and are rushing them into law (they could be voted upon any day now) before the legislature closes for summer break on May 18.

With the Liberal majority in the house, it seems doubtful the two bills' passage can be stopped (17 of 34 bills introduced this session have been passed to date), and future governments are unlikely to reverse them, for few in power can resist the comforts of secrecy.

Yet, the people of B.C. must understand these two bills' grave and historic consequences, dry as the details may seem.

Bill 30: Limiting Freedom of Information

Bill 30 could be dubbed "Coke's Revenge." What do I mean by this?

For the Ubyssey student newspaper, I made a request in 1995 under the B.C. Freedom of Information and Protection of Privacy (FOIPP) Act to see the exclusive marketing contract between UBC and Coca-Cola. The university refused, which prompted a five-year legal battle. The paper eventually won, when Information Commissioner David Loukidelis ruled that under FOIPP Act section 21, the information in the contract had been "negotiated" between the two parties and not "supplied" by either side and so the contract could be released.

But no longer.

Bill 30 amends the BC FOIPP Act's section 21, so that the government must (not may) refuse to release information - for 50 years - that is "jointly developed for the purposes of the project," and that is "shared or jointly developed explicitly in confidence," and could harm "the negotiating position of the third party," along with other sorts of supposed harms.

Loukidelis had ruled that, because two sides had forged the UBC-Coke contract "I cannot agree that this information is to be characterized as "supplied" by the contractor, when it was the result, in this particular case, of the give and take of negotiations between the parties … The parties, in effect, jointly created the records." This is the public's window of access that Bill 30 would close. (Coke also tried to claim the contract was exempt because it contained "unique legal drafting" which made it all a "trade secret." The commissioner rejected that argument, but that might be harder to do so now. Loukidelis also ruled UBC must release to me its exclusive marketing contracts with Telus and with a bank; Telus went to B.C. Supreme Court to overturn his ruling and block my access, but gave up before trial. These two contracts could now be simply blocked under Bill 30.)

Liberal MLA Blair Lekstrom told The Tyee that he is bothered by the amendment to section 21, and he is keen to speak on it at committee stage this week. He's raised his concerns with other Liberal members, although he's unsure how many share his viewpoint. (Lekstrom chaired a legislature committee that spent almost a year reviewing the FOIPP Act.)

"We have a good FOIPP Act, and I think section 21 covered things well now. I don't see the need to change it. The government says that with this bill it can negotiate better terms with companies, but I'm not sure that's always so. The public has a general right to know how its money is being managed."

Making public contracts secret

There is much more than Coke at issue.

Such as Maximus. Throughout months of FOI requests and appeals, various groups have been trying to obtain copies of the massive outsourcing contract that the B.C. government forged with Maximus B.C. to manage our private health records (supposedly for more efficiency and cost savings, although these have not been publicly quantified).

The deal was sharply controversial because many privacy advocates feared the FBI, under the U.S. Patriot Act, could view our records - supposedly searching for clues on terrorists - because they were stored by a branch of Maximus' American head company, a privacy question not fully resolved yet. Under Bill 30, this "jointly developed" contract could be sealed, also. (Lekstrom said that contracts such as Coke and Maximus would clearly be included in Bill 30.)

Other examples could have included the RAV Line, the private companies owned by BC universities and school boards, the controversial data management contracts with EDS (for payroll services), highway construction and management, even contracts with individual consultants (such as George Macauley for his secret review of possible FOI reforms) and so forth.

As Vancouver Sun columnist Vaughn Palmer noted "This Bill is intended to erect a legislative framework around the Liberal experiments in having private companies assume contractual responsibility for providing government services," that is, the so-called P3s.

The government can designate a "joint solution project" that the added secrecy level is applied to, but one problem is that the term is not defined. It is not clear which projects the government would apply the JSP status to, or why, but it grants itself the complete discretion to do so. Many believe that JSP and another term "procurement project" are so vague they could be applied to nearly ANY financial arrangement with a third party. "The definition leaves it wide open to designation," Lekstrom lamented.

Using political caution, the government might apply the JSP secrecy designation to just a few projects at first, but then quietly and inevitably expand the usage. Moreover, even if this government claims to choose its designations of JSPs "responsibly" today, it cannot guarantee that every future administration will do the same.

In any case, the government has routinely overapplied even the narrower old section 21 for the benefit of its business partners, pushing for as little FOI disclosure as it can get away with, until curtailed by rulings by the Information Commissioner - rulings that it then sometimes challenges in court appeals.

Even if the government presses beyond what it can legally withhold under section 21, the on-the-ground practicality is that it calculates that it can wear down the applicant with years of complex taxpayer-funded FOI litigation in the hopes the applicant will give up, which indeed sometimes happens.

The government is proud that JSP contracts will be posted automatically, but it retains the right to severe anything it regards to be not "in the public interest" to reveal, which could in practice entail 95 percent of the texts.

Olympic spending going dark

Make no mistake; there is s great principle at stake here. "Jointly developed" is the vital point at which the public and private sectors meet and overlap. The key question - battled over for 13 years since the BC FOIPP Act was passed - is which culture would prevail on this field - corporate secrecy or public sector transparency? After dozens of FOI requests and after commissioner's rulings and court appeals, the transparency advocates seemed to won. Now - with two pivotal words craftily buried deep inside the text of an obscure miscellaneous statues amendment act - all that progress is sharply and simply reversed.

Lekstrom agrees that the government could now state that any contract that was slightly modified between it and a partner - i.e., not absolutely standard government boilerplate - is therefore a "jointly developed" thing and withhold it. While governments at least pay lip service to the concept of transparency (while quietly seeking the path of least disclosure), most of the private sector frankly voices no tolerance for any of its commercial information being publicly released.

And what about the 2010 Vancouver Olympics? This should deeply concern us all, for historically, Olympic Games have gone far over budget and the B.C. Olympic organizing committee, VANOC, is already asking for more money (which the federal government is balking at supplying).

Technically, the VANOC entity is itself exempted entirely from FOI coverage - unjustifiably. But if a ministry, working apart from VANOC, had a special financial arrangement with any third party on Olympic business, that arrangement could be sealed from FOI, also.

No precedent in Canada

Another secrecy extension - but one that Lekstrom supports - is an amendment made to FOIPP Act section 17, which stated that government may (not must) withhold information that "could reasonably be expected to harm the economic or financial interests of a public body." One subsection had sealed information about "negotiations" carried on by or for a public body, but bill 30 adds the term "negotiating POSITION."

Bill 30 has no such statutory precedent in Canada. Yet, it's vital to note that the two B.C. all-party legislative committees that reviewed the FOIPP Act advised against changing section 21. Campbell ignored their expert advice. As well, the commissioner has voiced his strong opposition to the change, in a critique posted on his website.

Wrote Loukidelis to Mike De Jong, minister for FOI policy "I am deeply concerned by the proposed section 21.1 because it would significantly reduce the public's right of access to information. It would turn back the clock on access to information and accountability in British Columbia at a time when the trend elsewhere in Canada is toward more access to information and greater accountability. I urge you to delete the provision from this Bill and preserve British Columbians' right of access to information in the interests of accountability."

Not only is the bill a great danger to our democratic system to cloak government projects in secrecy, it can also create immense financial consequences for taxpayers. This legislation creates a potential breeding ground for waste, fraud and mismanagement. A B.C. provincial equivalent of the entire Quebec sponsorship program could have been marked as a "joint service project," meaning all information "jointly developed" (such as advertising contracts and plans) could be sealed. It was FOI requests by the media that first exposed the Quebec scandal and led to the Gomery Inquiry - but in B.C., this might not be possible now.

Bill 30 transports us back to the pre-FOI dark ages. Not even Glen Clark dared pull such a ruse to hide the fast ferries' huge cost overrun. The FOI section 21 amendment must be deleted, and for anyone who cares about FOI, there is no topic more important today. As Vancouver Sun business reporter David Baines put it regarding the B.C. Security Commission's recent moves to lessen public disclosure, when government says "just trust us," then watch out. "It is the road to hell."

Stanley Tromp is FOI caucus coordinator of the Canadian Association of Journalists (CAJ)

Ten other Tyee stories on the issue of secrecy in government:


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