Access to Government Secrets

August 6 , 2007

Access to Government Secrets

In mid-July the Vancouver Sun and the Victoria Times Colonist ran stories about their freedom of information request with respect to the BC Place Stadium's roof; fourteen of fifteen pages had been completely blanked out. What wasn't reported is that they could run stories like that every day of the week, every week of the year because the apparent policy of the Campbell government is to flout the spirit of open-government.

Olga Ilich, MLA for Richmond Centre, is the Minister of Labour and Citizens' Services, meaning she is responsible for the government's policy on freedom of information and protection of privacy. On July 19, 2007, the Times Colonist published a letter she sent to the paper saying the budget for the Office of the Freedom of Information and Protection of Privacy Commissioner "has increased by more than 25 per cent since 2001." To his credit, the Commissioner, David Loukidelis, responded with a letter published July 25 in which he wrote:

"To ensure your readers are not misled, in 2002 our budget -- for our oversight role under B.C.'s Freedom of Information and Protection of Privacy Act -- was handed cuts totalling 35 per cent."

"Some funding was restored in 2004, but that was because we were given new responsibilities for regulating privacy in B.C.'s entire private sector (more than 350,000 organizations). We received a modest but welcome increase in funding this year, but most of this was one-time funding for this year only, to help us deal with our growing FOI case backlog and fund improvements to the lobbyists' registration system."

"We are slated for a slight cut to our funding starting next fiscal year. If the minister is asking the public to believe that our budget was never cut, the facts are otherwise."

It is refreshing to see an Officer of the Legislature describe the actions of a minister in terms, which if reduced to one word, would be un-parliamentary.

Problems with access to information, however, go far deeper than cuts to the Commissioner's budget. In his 2006-2007 Annual Report, Commissioner Loukidelis described problems which have arisen from a December 2, 2002, B.C. Court of Appeal decision involving section 13(1) of the Freedom of Information and Protection of Privacy Act in the "Dr. Doe case" - or College of Physicians and Surgeons of British Columbia v. British Columbia (Information and Privacy Commissioner). Two paragraphs, numbers 110 and 111, of that decision are particularly important; that's where the Court essentially stated that the word "advice" used in section 13 of the Act should be given broad interpretation so as to include factual material. Since that decision was rendered government has frequently used section 13 as its excuse for not providing information, e.g. blanking out 14 of 15 pages.

On May 19, 2004, a Legislative Committee struck to make recommendations on the Freedom of Information and Protection of Privacy Act, chaired by Liberal MLA Blair Lekstrom, and consisting of a majority of government members, recommended that section 13 of the Act be amended so as to clarify that:

"(a) "advice" and "recommendations" are similar terms often used interchangeably that set out suggested actions for acceptance or rejection during a deliberative process,

(b) the "advice" or "recommendations" exception is not available for the facts upon which advised or recommended action is based; or for factual, investigative or background material; or for the assessment or analysis of such material; or for professional or technical opinions."

The Campbell government has failed to act on the Lekstrom Committee's recommendations. That failure prompted Commissioner Loukidelis to say in his recent annual report:

"Another year has slipped away since unanimous Legislative Assembly review committee recommendations were made to improve the Freedom of Information and Protection of Privacy Act (FIPPA). The government says it has implemented some changes by policy, and a minor housekeeping amendment has been enacted, but the vitally important work of the committee sits on the shelf gathering dust. At year's end a Bill was tabled with a number of important amendments that flowed from the committee's work, but it sits there still."

Commissioner Loukidelis went on to make his point perfectly clear by writing:

"I have said publicly many, many times that a 2002 decision of our Court of Appeal gave the advice or recommendations exception to the public's right of access too broad an interpretation. The court's broad interpretation of advice or recommendations represents the greatest step backward in the public's right to know what is going on in government. The Legislative Assembly review committee certainly agreed and recommended specific amendments to restore openness and accountability. Courts elsewhere in Canada, notably the Ontario Court of Appeal, have rejected our appeal court's interpretation, so the government's claim that the court agrees with the government is hardly forceful."

"The bottom line is that the bureaucracy is perfectly content with the Court of Appeal's crabbed view of public access to information rights under FIPPA. This is unfortunate, since it unnecessarily and inappropriately empowers more information to be hidden from the public than before. As the government increasingly removes itself from the business of providing services, focusing instead on setting policy directions, the diminishment of the public's right to access policy advice renders the government increasingly unaccountable. The Premier and Cabinet have an excellent chance here to show leadership by restoring democratic openness and accountability. In this instance, the dialogue between the courts and the Legislature should end with the Legislature asserting its supremacy and reaffirming its commitment to transparency."

It warms the heart of advocates of access to information to see the Commissioner write to a newspaper to correct statements from Minister Ilich and to see him argue that government should allow the Legislature to assert its supremacy and reaffirm its commitment to transparency. In the balance of probabilities hell might freeze over before government increases transparency when it has the ready excuse of pointing to the Court's ruling. There are other alternatives: the Commissioner could either interpret the 2002 decision as applying only to a narrow set of facts, i.e. a disciplinary action before the College of Physicians and Surgeons, or as he argued when he described the Court's view as "crabbed", he could ignore it entirely. In other words, the Commissioner could rule against government's exaggerated use of Section 13 and take another case to Court. In the recent Supreme Court of Canada decision with respect to the Campbell government's contract breaking Bill 29, the Court over-ruled itself. The Court said that a previous ruling was wrong and needed to be corrected. The same thing could happen with an appropriately selected case to test Section 13 of the Act, not framed in the context of a medical disciplinary action, but framed in the context of access to information that the public would widely expect should be disclosed.

Access to the legal system requires resources beyond the means of most people who make freedom of information requests. Section 44 of the Act allows the Commissioner to take the initiative and put a test case before the Court. It would be far preferable if the Campbell government would act on the recommendations of the Lekstrom Committee, but in the absence of government leadership, Commissioner Loukidelis has the legal authority to show leadership.