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January 12, 2010

Freedom of Information Review

The Freedom of Information and Protection of Privacy Act (FIPPA) requires that the Act be reviewed by a special committee of the Legislative Assembly every six years. That review is currently underway; the deadline for submissions has been extended to February 28. The Committee’s website provides information making submissions. My submission is copied below.

Submission to the Special Committee to Review
the Freedom of Information
and Protection of Privacy Act


From: David D. Schreck

This submission briefly reviews a few of the troubles I have had when using the Act. I look forward to reviewing submissions your Committee receives to see what frustrations others have experienced.

In July 2007 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. As a regular user of FOI, I am reluctant to pay for the response to any request out of fear of receiving a bundle of mostly blank pages. The Special Committee to Review the Freedom of Information and Protection of Privacy Act should recommend that fees be waived whenever 20 per cent or more of a document(s) is blanked out.

Your Committee deserves recognition for the background information available on its website. Links are found there to the 1999 and 2004 reports from your Committee's predecessors. The 2004 Committee, chaired by Blair Lekstrom, is important because it recommended a solution for the problems created from a December 2, 2002, B.C. Court of Appeal decision involving section 13(1) of the 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; 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.

In his 2006-2007 Annual Report, Commissioner Loukidelis wrote:
"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."
Like the 2004 Committee, your Committee should recommend that section 13(1) be fixed to the satisfaction of the Commissioner.

Section 12 of the Act, dealing with Cabinet and local public body confidences, is also subject to abuse. In 2008 a coalition of BC forestry companies, in a submission to the Western Climate Initiative, held the Ministry of the Environment up as an example that should be followed when it comes to regulating greenhouse gas emissions. According to the forest companies: "...the WCI should not require mandatory verification. Rather, an approach similar to regulatory reporting should be embraced that requires regulated sectors to self report carbon using defined protocols and tools. The jurisdiction would have the right to audit the data as they do today in BC regarding all emissions reporting."

Since that recommendation made its way into law with Bill 18, 2008 Greenhouse Gas Reduction (Cap and Trade) Act, I wanted to know how the system applauded by the forest industry actually works with respect to industrial gases, other than greenhouse gases, that have been regulated for years. Initially I was told that the response to my request would involve thousands of pages and a substantial cost. I narrowed the terms of my request, making it clear that all I wanted was a simple description of how the regulatory system works and whether any violations have occurred. In response to that simplified request, the response from the Ministry of the Environment said: "We have now completed out consultation with the Office of the Premier. I regret to inform you that we cannot provide you with the records you requested as they consist of information that is excepted from disclosure under the Act." The letter went on to quote Section 12(1) of the Freedom of Information and Protection of Privacy Act.

It is hard to believe that documents which explain how the current system of regulating reportable gas emissions could be excluded from disclosure because they would reveal cabinet confidences. Consequently, I filed an appeal with the Freedom of Information and Privacy Commissioner, but I ultimately abandoned the appeal as it appeared that the process would take years with little likelihood of success. The Office of the Commissioner does not receive an adequate budget to expeditiously deal with appeals; the resulting backlog further undermines the spirit of access to information. I urge your Committee to recommend that the Office of the Commissioner receive adequate funding to handle appeals in a timely manner, and that a regular review process identify how to reduce appeals through a commitment to open government.

In my experience it takes over three months to get what is often an unsatisfactory response to a request for information. After the initial wait period, a letter usually arrives saying that the request is complex and requires additional time; that is followed by a letter saying that another public body must be consulted, requiring yet more time. I make it a matter of personal policy to submit a second information request asking for the names of the other public bodies that are consulted. Your Committee should recommend that whenever the time limits are extended for a request, the public body extending the limits should notify the requestor which other bodies are being consulted. At least that would save costs on both ends of the transaction rather than having to go through another FOI to find out which bodies were consulted.

Changes to the Act are important, but no changes can replace the need for a commitment throughout government to an attitude that the public has a right to know what is going on in government.

Summary

I urge the Special Committee to Review the Freedom of Information and Protection of Privacy Act to recommend: