Dark picture painted of B.C. information laws
British Columbia’s information and privacy law has been formally reviewed by a legislature committee three times in the last two decades, and the job is usually done far from centre stage.
But the fourth review is now underway, with freedom of information as the hottest topic in the legislature. There’s been a concerted attack by the Opposition on numerous falldowns when it comes to responding to FOI requests. Wholesale deletion of documents considered “transitory.” Responses coming back blank under suspicious circumstances. Staff in one office denying they sent emails while recipients in another disclose pages of them.
There was also a sharp report from the information and privacy commissioner that condemned the government’s handling of such requests five different ways.
Add in the fact some of the requests involve sensitive issues, such as the missing women in northern B.C. and the fiasco over the mysterious firing of eight Health Ministry workers, and freedom of information is much more top of mind than it usually is.
There were 15 presenters to the committee on Monday at a hearing in Vancouver. Freelance reporter Stanley Tromp had more than a passing familiarity with how public bodies are responding to their obligations under the law.
He uses the law every day, and most of his reporting involves information obtained through the hundreds of applications he files. He has shared his views at all the previous reviews because FOI in B.C. has been “my life’s main work for the past 20 years.”
It must be a particularly frustrating journalistic niche, because FOI in Canada lags far behind other countries, as Tromp wrote in a book seven years ago.
“With Canada’s FOI laws, we can produce far fewer FOI news stories than the American press does,” he said.
He told MLAs the difference between FOI in Washington state and B.C. “is like night and day.”
Those untold, untellable stories are a world of lost opportunities, he said. Even though the withheld records are all bought and paid for by the people who are being denied access to them — the taxpayers.
Tromp’s overall presentation had the air of futility about it. The last time around, he gave MLAs 67 recommendations for reform. “The reason I have to reattach them again is that none were implemented. Not one. As well, the best recommendations of the first three FOI review committees were shelved … and never acted upon.”
He had three areas of concern this time around: • Policy advice. The Section 13 qualifier that protects advice or recommendations developed for a cabinet minister from FOIs is the most widely misused provision, he said. As interpreted by the courts, it heightens secrecy and amounts to a “de facto, all-purpose master key that can lock up almost any FOI door.”
Although there’s a public-interest override elsewhere in the act, Tromp said Section 13 is a bureaucratic override that’s used hundreds of times more often. He wants it drastically curtailed. • Shell companies. Over 20 years, Tromp said public bodies have created shell companies to do big business, while exempting them from FOI law. The 1990s saw B.C. Hydro’s abortive investment in a Pakistan power project through a subsidiary, and the fastferry fiasco, which was handled by a subsidiary of B.C. Ferries.
More recently, the Vancouver school board had some overseas ventures, VANOC ran the 2010 Olympic Games free from FOI, B.C. Hydro runs an export arm and the University of British Columbia has real estate and other spinoff ventures, all exempt. Tromp said any company with 50 per cent or more public entity involvement should be subject to FOI. • Oral culture. Minutes are no longer kept at public-entity meetings, he said. Officials don’t write anything down, following the Dobell Doctrine, named after former deputy to the premier Ken Dobell, who said: “I delete my emails all the time, as fast as I can. I don't put stuff down on paper that I would have 15 years ago.”
Tromp said record-retention law needs tightening up.
Just So You Know: On the issue of secretive subsidiaries, Tromp said even the Islamic Republic of Iran, no model of human rights, has FOI law that on paper is broader in scope than B.C.’s. So does Russia.