B.C.’s Privacy Commissioner says some changes planned for provincial freedom-of-information legislation will weaken the province’s democratic infrastructure, depriving journalists, opposition politicians and the general public of a window into how important government decisions get made.
Michael McEvoy said in an interview that plans to impose some of the highest fees in Canada to apply for records is an impediment to seeking information that the public already owns. The intention of the NDP government’s bill to make the premier’s office exempt from access requests would further erode transparency, Mr. McEvoy said.
Other provisions in the bill would expand the ability of public bodies to disregard access requests and would limit the obligation of government entities to create or disclose some electronic records. The proposed legislation would also allow the storage of the personal information of British Columbians on servers outside the province. All are concerns Mr. McEvoy outlined in an open letter to Culture Minister Lisa Beare.
“The public, the media and others have the right of access to information about how their governments are doing their business,” Mr. McEvoy said in an interview. “It is the people’s business that the government is doing and those records are, in essence, the people’s records, subject to certain exceptions of course.”
Ms. Beare set off a storm of criticism last week when she introduced amendments to the Freedom of Information and Protection of Privacy Act (FIPPA) that she told the legislature “will strengthen government accountability and transparency by enabling us to be more responsive to the needs of people.”
The legislation was introduced before the government had received the recommendations of an all-party legislature committee that had been asked to look at potential changes to the act.
Mr. McEvoy noted that of 14 jurisdictions in Canada with access-to-information laws, seven of them, including British Columbia, have no fees. Alberta is among the highest at $25. “Following a jurisdiction that has the highest access fee is not something I think we should be emulating,” he said in the interview. Nunavut also has a $25 fee.
At a news conference on Thursday, Premier John Horgan defended the legislation, saying it was a modernization that was “in the interest of full disclosure” and he noted a decision about whether to levy a fee or what it would be had not yet been decided.
He went on to complain about the volume of requests that he said his government is having to grapple with, largely from the BC Liberal opposition, but also from media.
“I believe that thousands and thousands and thousands of requests are not designed to better understand why decisions are being made, but instead they’re acting as surveillance, looking over the shoulder of public officials.”
Mr. Horgan said there has been “an extraordinary proliferation in requests for information from political parties.” But he has acknowledged that while in opposition, his party made many requests.
Using the act is time-consuming, cumbersome and can be expensive. Currently, anyone can initially fill out a request for information and submit it without paying a fee. The government is required by law to respond to the request within 30 days, but data from Mr. McEvoy’s office shows average processing times have been well in excess of that, increasing to 57 days in 2019.
However, once the records are located, the person submitting the request must agree to pay fees based on the amount of time it takes a public servant to prepare the documents and to ensure that they do not contain prohibited information. Those fees can amount to hundreds or thousands of dollars, but the Privacy Commissioner can waive the fees if he concludes that releasing the documents would be a matter of public interest.
Even with a fee waiver, though, the information supplied is frequently of little use. Redactions for privacy reasons or to avoid releasing information considered economically damaging, among other exemptions, means some documents are returned with mostly blank pages. On other occasions, requests for information that could supply crucial background context for policy decisions or events are rejected on the grounds that there is nothing to disclose.
For example, after the catastrophic heat wave at the end of last June, The Globe and Mail requested copies of all communications about the disaster between Mr. Horgan, Public Safety Minister Mike Farnworth, Health Minister Adrian Dix, Provincial Health Officer Bonnie Henry and Chief Coroner Lisa Lapointe.
The response, sent July 31, noted: “Although a thorough search was conducted, no records were located in response to your request. Your file is now closed.” Later, an information officer with the Ministry of Citizens’ Services e-mailed back to say that the request was under review. After the officer asked for an extension, the latest date for the information to be delivered is Nov. 30.
Mike Larsen, President of the BC Freedom of Information and Privacy Association, said he was “horrified” to see the introduction of a filing fee, saying it’s a clear attempt to create a disincentive for prospective FOI users.
The proposed changes to the act are occurring as the NDP government’s record on responding to Freedom of Information requests within the legislated time period dips to below that of the BC Liberals, when they were governing.
Although Mr. McEvoy said these instances are usually the result of a misunderstanding and are resolved, Mr. Larsen, who is also a professor of criminology at Kwantlen Polytechnic University in Vancouver area, said such trends are alarming.
“There has been an active push for government to create a legislative ‘duty to document’ under FIPPA for years now. An FOI system can only function if public bodies are actually required to document their decisions in the first place,” he wrote in an e-mail.
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