B.C. needs strong ac­cess to in­for­ma­tion reg­u­la­tions

Vancouver Sun - - OPINION -

Free­dom of in­for­ma­tion has in the past been chiefly the con­cern of jour­nal­ists and ad­vo­cacy groups frus­trated in their ef­forts to fer­ret out doc­u­ments from govern­ment archives. But the email scan­dal now en­gulf­ing the Lib­eral govern­ment has gained so much pub­lic op­pro­brium that it has earned its own Twit­ter hash­tag: #delete­gate.

While the tweets di­rect all their vit­riol at Christy Clark’s govern­ment — or Clark her­self — some of the in­vec­tive should be re­served for previous gov­ern­ments, dat­ing back to at least 1993 when the NDP in­tro­duced the Free­dom of In­for­ma­tion Act and then im­me­di­ately set about try­ing to evade it.

The lat­est as­sault on the B.C. govern­ment’s cul­ture of se­crecy comes cour­tesy of In­for­ma­tion Com­mis­sioner El­iz­a­beth Den­ham, who has re­peat­edly called out politi­cians and bu­reau­crats for fail­ing to re­spect their obli­ga­tions un­der the Free­dom of In­for­ma­tion and Pri­vacy Act.

In her lat­est report, Den­ham de­cried “an en­trenched oral cul­ture of de­ci­sion mak­ing in govern­ment,’” de­signed to thwart pub­lic re­quests for in­for­ma­tion.

As The Sun has re­ported, the Clark govern­ment stands ac­cused of avoid­ing cre­at­ing writ­ten records that might later prove em­bar­rass­ing through mass dele­tion of emails, and us­ing pri­vate email ac­counts and se­cret code names — as did the Lib­eral govern­ment of Gor­don Camp­bell be­fore hers, and the Uj­jal Dosanjh NDP govern­ment be­fore his.

Each leader promised to over­turn the clan­des­tine prac­tices of his or her pre­de­ces­sor and run an open and trans­par­ent govern­ment.

The fail­ure of any govern­ment to hon­our its obli­ga­tions un­der FOI leg­is­la­tion sug­gests that the lan­guage of the re­lated laws and reg­u­la­tions needs to be more ex­plicit and penal­ties for fail­ure to com­ply more se­vere. On that score, the Lib­er­als have moved in the op­po­site di­rec­tion, re­peal­ing penal­ties and sanc­tions in a new man­age­ment in­for­ma­tion regime that had been part of ear­lier leg­is­la­tion.

It beg­gars be­lief that politi­cians and bu­reau­crats have been per­mit­ted to triple-delete their email mes­sages, re­mov­ing them from servers so they were lost for­ever. No cor­po­rate en­ter­prise would give its em­ploy­ees that au­thor­ity. Such ma­te­rial must be re­tained in the event of an in­quiry, lit­i­ga­tion and yes, an FOI re­quest.

The fed­eral Ac­cess to In­for­ma­tion Act could serve as a rea­son­able start­ing point for a strength­ened FOI Act, for B.C. Sec­tion 67.1 states:

No per­son shall, with in­tent to deny a right of ac­cess un­der this Act, (a) de­stroy, mu­ti­late or al­ter a record; (b) fal­sify a record or make a false record; (c) con­ceal a record; or (d) di­rect, pro­pose, coun­sel or cause any per­son in any man­ner to do any­thing men­tioned in any of para­graphs (a) to (c).

We must add to this list a duty to doc­u­ment — that is, a re­quire­ment that pub­lic of­fi­cials cre­ate the records nec­es­sary to doc­u­ment their ac­tions and de­ci­sions — a mea­sure en­shrined in law in New Zealand and two Aus­tralian states. The NDP op­po­si­tion has noted that it tabled in the leg­is­la­ture last spring a new ac­cess to in­for­ma­tion law that in­cludes a duty to doc­u­ment.

Clearly, an all-party re­view of ex­ist­ing and pro­posed leg­is­la­tion with the ac­tive par­tic­i­pa­tion of in­for­ma­tion com­mis­sion­ers past and present will be key to im­prov­ing this vi­tal as­pect of govern­ment ac­count­abil­ity.

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