Fight Against Secrecy Failed

Why BC's 'open government' laws need fixing.

By Colin Gabelmann 15 Oct 2007 |

Colin Gabelmann was attorney general of B.C. from 1991 to 1995.

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Don't tell the citizens!

[Editor's note: This is a shortened version of a speech given by former NDP government attorney general Colin Gabelmann at the B.C. Information Summit on Oct. 5.]

It seems hard to believe it is now more than 15 years since I had the honour to introduce the Freedom of Information and Protection of Privacy Act in the legislature. At the time, B.C. was one of only three provinces without some form of access and privacy law. Previous B.C. governments had been comfortable with, and in fact preferred, to operate with as much secrecy as possible.

Where are we after 15 years? Have the legislature, the government and the courts been true to the original intentions of the act? Does information flow as freely and easily as we intended in 1992? Did we get it right or wrong back then?

I argue that we got it right -- that we achieved an appropriate and effective balance between privacy rights and the public's right to know -- a balance that, unfortunately, is no longer reflected in today's reality.

We started drafting the legislation with a straightforward perspective: government is nothing more than citizens getting together to organize and improve their lives, and everything that government does belongs to the public.

Another MLA, six years later, put that second point very well. He said, and I quote: "Government information belongs to the people, not to the government." You may know him. His name: Gordon Campbell.

I want to focus on, what are for me, two major issues.

The first is the government's attitude towards open access.

The second is a judicial interpretation of Section 13 that in no way reflects what the legislature intended in that critical section.

Creating barriers

On the first point, I had really believed, that by now, government information would be freely available and publicly posted in an accessible and user-friendly way.

Never in my wildest dreams did I expect that foot dragging and a penchant for secrecy would prevail to the extent that it has. No matter how good the law might be, it won't work if people in power are out to subvert it. The language of the act was good, clear and straightforward: I quote, "to make public bodies more accountable to the public ... by giving the public a right of access."

Unfortunately, advocates of secrecy use a variety of techniques to prevent the effective use of the act. I want to briefly mention some of them.

One of our major intentions was that formal FOI requests would be a last resort, not a routine means of obtaining information. We wanted to encourage the routine release of information to citizens.

The act stated, and still does, that it "does not replace other procedures for access to information or limit in any way access to information that is not personal information and is available to the public."

Contrary to our intention, formal requests have replaced other procedures for access and have become the routine channel for release of information. If you ask for records, you are almost always asked to file an FOI request. This actually impedes access to information and makes FOI a much more expensive proposition than it ought to be.

Slashed funding, raised fees

In addition, we stated repeatedly -- it was almost a mantra -- that "fees will not be a barrier to access." Yet fees have become a serious barrier for many individuals and groups.

We also realized that real freedom of information would not come without a financial cost to government. In our first throne speech, we stated that we would devote significant resources to making freedom of information work. And we did.

Over the years, however, resources for FOI implementation have been cut severely, both within government and in the commissioner's office, resulting in a large loss of the staff dedicated to FOI and a clear signal to other government employees that access to information is not a government priority.

It is only fair to note that the cuts to FOI staff started in an NDP administration in 1998. It's also fair to note that the Liberals, elected in 2001, reneged on a promise to restore those resources, and in fact, cut staff even further.

'Public interest' clause ignored

We incorporated into the FOI act the strongest public interest override in Canada. We wanted to ensure that the head of a public body would, "without delay," disclose information that was "clearly in the public interest".

I don't think this provision has ever been used, and certainly never by the head of a provincial ministry. That represents a huge failure of intent. Have there been no risks of significant harm to the environment, health or safety in B.C. in the last 15 years?

How about "other information the disclosure of which is clearly in the public interest"? Has there been no instance where corruption, illegal activity or something just plain wrong came to the attention of the head of a public body and should have been disclosed under this section? I think the answer to this question is that senior public servants and the government which employs them are simply not interested in the public interest.

What our wording meant

The second issue of major significance I want to raise concerns the wording of the FOI act, and its interpretation. There has been an incredibly astonishing perversion in the last few years of the plain language meaning of the words: "advice and recommendations." This has resulted in the reversal of the legislature's intent, as originally expressed in the legislature and in the act.

Let me elaborate.

The presumption of B.C.'s FOI act is disclosure of information. However, as with all FOI acts, there are necessary exceptions to disclosure.

Two sections of the act shield "advice and recommendations" to government from public view -- sections 12 and 13.

Section 12, the "Cabinet Confidences Exception," protects cabinet deliberations by prohibiting the disclosure of any advice or recommendations that would reveal the substance of those deliberations. We sought to ensure that cabinet could conduct its business freely and that public servants would not feel constrained in advising cabinet.

But we intended that exception to be limited. We designed the act to ensure that the information considered by cabinet would become public once a decision was announced or implemented. My words to the house, in 1992, in respect of Section 12, were: "This bill limits the government's right to cabinet secrecy by providing that factual material presented to cabinet or developed by ministries will be accessible once the decision has been implemented."

Section 13 is the "Policy Advice Exception," which shields policy advice to any level of government from disclosure. With the support of FIPA and other Freedom of Information advocates, we designed wording which struck a balance but ensured that government and its advisors would be able to conduct public business in a full, frank and informed manner.

Court got it wrong

The wording and intent was clear -- at least we thought it was. In Section 13 "Policy Advice" permits an exception from access for "information that would reveal advice or recommendations developed by or for a public body or a minister." We meant that to mean -- and I believe it does mean -- that "advice or recommendations" was limited to those parts of documents or reports that advocated that government choose a particular course of action or make a particular decision; in effect, "we recommend that you do this," or "we advise that you do that." Following that, we specified a long list of items which "the head of a public body must not refuse to disclose."

Section 13 was so clear and obvious that there was not a word spoken by any member of the House on it during the committee stage debate. Not a word!

Somehow, the B.C. Court of Appeal in 2002 determined that the Information and Protection of Privacy Commissioner got it wrong in interpreting the words "advice and recommendations" in this manner. They said the trial judge was wrong, too, in concurring with the commissioner.

I have to tell you that the Appeal Court quite simply failed to understand our intention -- the intention of the legislature -- when using these words as we did.

It has become so ridiculous now that a technical report on the state of B.C. Place stadium can be almost entirely blacked out because of the court's misreading of the intent of the legislature in 1992.

Correct this outrage

I can't think of another example where the Appeal Court got something as wrong as they did here. The act should not really have to be amended because it is really clear in every way, but unfortunately an amendment has been our only option for the past five years. A government which believes in freedom of information would have introduced amendments in the first session of the legislature after that Appeal Court decision to restore the act's intention.

Now, the Appeal Court decision means that the secrecy advocates in government are using the two sections of the act in tandem to refuse to allow public access to material that is at the very heart of the principles of freedom of information. This is an outrage and must be remedied.

This is a very sad time in British Columbia, for those of us who believe in open government.

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