April 21, 2007

Secret KPMG Investigation Tests Access to Information

In his April 13th column, Vaughn Palmer concluded: "The handling of the Purchase resignation letter utterly mocked the spirit of the information law. It was a cover-up, plain and simple. And unless the information watchdog is prepared to challenge the B.C. Liberal government publicly, these travesties will continue."

Palmer had previously obtained an unedited version of the resignation letter of Keith Purchase, Chair of the Fraser Health Authority. In his February 8th column he wrote about the differences between the edited version of the resignation letter released by the Ministry of Health and the unedited version. It was obvious that the edits were made to protect the government from embarrassment and had nothing to do with privacy or advice to a minister. NDP Health critic Adrian Dix filed a complaint with the Office of the Freedom of Information and Protection of Privacy Commissioner about those discrepancies. Palmer's April 13th column described the response from the Office of the Commissioner. In a letter dated March 19th, a portfolio officer in the Commissioner's Office answered Dix with a three page letter that essentially said that the Act doesn't apply when government proactively releases a document; the official went on to offer advice for future proactive releases of documents. I took a different lesson from that experience which I applied in a freedom of information request concerning the Minister of Finance's statement that KPMG has been retained to investigate assertions by lobbyist Brian Kieran that a former Deputy Minister of Finance had directed lobby work to Kieran. That lesson is to ignore proactive releases, or promises to make proactive releases, and instead rely on the provisions of the Act. Government does not have the authority to nullify the Act by promising to seize the initiative with its own releases sometime in the indefinite future.

The NDP caucus came back from a two week legislative break and out-paced the government every day in question period during the week beginning April 16. Finance Minister Carole Taylor, for the first time since she was elected, was put on the defensive as she was given the job of answering for Premier Campbell. She admitted that the government was sufficiently concerned about claims in an email between two lobbyists, as reported in the Globe and Mail, that the Premier's Deputy, Jessica McDonald, conducted an internal investigation and then referred the matter to an external firm, KPMG, for further examination. On Thursday, April 19th, the NDP caucus repeatedly requested the terms of reference given to KPMG. In response to a question from Harry Lali, Taylor said:

Five months earlier Lali had written to the Premier to express concerns regarding the matter; Lali was told that no problem existed. Leonard Krog asked Taylor a simple question: "Will the minister release the terms of reference for the KPMG investigation?" Taylor responded: "When this review is completed - and, again, we do hope that it will be fairly soon - we will release all of the information, including the terms of reference."

The Freedom of Information and Protection of Privacy Act does not give the government latitude to release documents when it feels like it, although the way they respect the Act it might as well be written that way. Taylor's response smacks of the arrogance shown by the government when it released a heavily edited version of Keith Purchase's letter of resignation. Her answers seemed to become a little incoherent when, in answer to Mike Farnworth, she said: "When the review comes forward after it's gone through FOI, that plus all of the supporting materials you had mentioned - for instance, the terms of reference, if there are terms of reference - will be available to the government." In other words, the government will release the terms of reference when it feels like it, if there are terms of reference, on its secret investigation into a matter raised by the Opposition but previously denied by the government. So much for transparency!

The Campbell government has 30 working days to respond to my information request. If it fails to do so, a complaint regarding a "deemed refusal" will be put in the hands of the Commissioner on May 31st. Don't be surprised if the Campbell government uses every trick in the book to extend deadlines or release pages that are heavily edited. It won't get away with that without a fight. We may get to see whether there are any real teeth in BC's legislation for access to information, or as Palmer put it, whether: "the information watchdog is prepared to challenge the B.C. Liberal government publicly".