B.C. Privacy Commissioner Elizabeth Denham says the Freedom of Information and Privacy Act requires public bodies to proactively disclose information that is in the public interest.Adrian Wyld
The B.C. Ministry of Environment has been ordered "to disclose, without delay" information related to a polluted drinking-water aquifer in the North Okanagan Valley near the city of Armstrong.
In a report released on Wednesday, Information and Privacy Commissioner Elizabeth Denham said the government was not justified in withholding the results of soil tests undertaken by a dairy farm that was spreading manure on land over the Hullcar aquifer.
She said the test results are "clearly in the public interest" and should have been released when water users in the Township of Spallumcheen first requested them because of concerns about nitrate levels after a drinking water advisory was issued in March, 2014.
Environment Minister Mary Polak said the information could not be provided because the dairy farmer, H.S. Jansen and Sons, did the tests and the material was therefore covered by private copyright.
Ms. Denham, in her last report before leaving B.C. to take a new job as Britain's next information commissioner, disagreed, saying the government had ordered the tests, and the public had a right to know the results.
She said while the ministry has been diligent in responding to the aquifer pollution problem, undertaking studies and restricting several farms in the area from spreading manure, it damaged its credibility by refusing to provide test results to the public.
"Safe drinking water is a basic human need, and many of the residents of Spallumcheen lack confidence in the regulatory actions undertaken by the Ministry," she writes in the report. "In this investigation report I have determined that the disclosure of this information by the Ministry is clearly in the public interest in that it will enable the public to assure itself that the Ministry is appropriately discharging its duty in relation to environmental and human health."
Ms. Denham writes that "if public bodies were more open with information it would serve their own interest as much as the public interest, and leave little room for suspicion sometimes held by stakeholders, and by some members of the public and the media."
Ms. Denham's report calls for better training for government staff to facilitate the future release of information.
Ms. Polak said in a statement that her ministry accepts the findings and will release the test results and other data.
"At all times, the Ministry of Environment's goal is to provide the public with as much information as we can and in as timely a manner as possible," she stated. "The ministry accepts the commissioner's order to release all soil test results and nutrient management plans going forward. This includes disclosure of the Jansen Farm nutrient management plan we believed we could not release due to federal copyright laws."
Ms. Denham launched her inquiry after receiving a complaint from the University of Victoria's Environmental Law Centre (ELC), which said the government should not withhold public-health information.
"Thank God we've got an information commissioner," said Calvin Sandborn, legal director of the ELC. "Over the last few years, we've seen this trend away from assisting [freedom-of-information] applicants, and it's not just because of the individuals in this particular case, it's because there is direction coming from the top [in government ]. ... Civil servants know it will make trouble for their political masters if too much information gets out to the public."
George Heyman, the NDP's environment critic, made a similar point.
"This government has a long track record of not documenting discussions and a policy of not releasing information either on request in a timely manner or pro-actively. This is a secretive government that's opaque, and the commissioner . . . is once again pointing this out to the people of B.C.," he said.
Green Party Leader Andrew Weaver said "there is a culture of coverup in the B.C. government," adding that he doubted the report would change things.
"It's what happens when a government has been in power for so long. They think they can get away with anything," he said.
Al Price, a spokesman for Save the Hullcar Aquifer Team, a group representing water users, said the government has been "fighting us tooth and nail, every way they can," and he was glad the test results will now be released.
"To withhold [this] information is just not acceptable, and I'm really pleased with the commissioner's ruling," he said.