ACCESS TO INFORMATION VITAL FOR FIRST NATIONS
In a pandemic, timely access to health information can help a community save lives. Withholding information can put lives at-risk.
When it comes to the spread of COVID-19, First Nations communities are among the most vulnerable. And while First Nations governments are doing a heroic job of trying to contain the virus, they're not being given the information they need to keep their communities safe.
Since the pandemic began, First Nations leaders have been asking the B.C. Ministry of Health to share proximate case information about the location (not personal identity) of confirmed and presumptive COVID-19 cases near their communities.
They need access to this information so that they can reduce the risks of significant harm to the health-and-safety of their people. This includes deciding on the necessity of stay-at-home orders, travel prohibitions, contact tracing and sharing resources with other Nations.
This request was made when COVID-19 began to take its first victims, including the tragic loss of a member of the 'Namgis Nation; it was made when Premier Horgan announced he was unilaterally reopening the province without consulting First Nations; and it has been made again recently as new outbreaks occur almost weekly among First Nations, including the Haida, Tla'amin and Heiltsuk Nations.
The B.C. government's colonial position of withholding information during a pandemic isn't only unconscionable, but also, we believe, unlawful. That's why a coalition of First Nations, encouraged by civil society supporters like the B.C. Freedom of Information and Privacy Association, and the B.C. Civil Liberties Association, have filed an application with B.C.'s Information and Privacy Commissioner (OIPC) for an order to disclose the information they're seeking.
Broadly, the application contends that:
■ B.C.'s refusal to share information violates Section 25(1)(a) of the Freedom of Information and Protection of Privacy Act (FIPPA), which states that a minister “must” disclose information “about a risk of significant harm … to the health or safety of the public or a group of people.”
■ B.C.'s own Declaration on the Rights of Indigenous Peoples Act (DRIPA) requires that the government must take all measures necessary to ensure the laws of B.C. are consistent with the UN Declaration on the Rights of Indigenous Peoples, under which Indigenous people have rights to self-determination, self-government and to participate in determining programs for maintaining their health and well-being.
To date, the ministry hasn't explained why proximate COVID-19 cases don't present a risk of significant harm to the health or safety of First Nations communities, as defined by FIPPA, or how their failure to disclose is consistent with B.C.'s obligations under DRIPA. On the contrary, provincial health officer Dr. Bonnie Henry has publicly acknowledged the significant threat that COVID-19 poses to remote First Nations communities and their elders. So, what's the holdup?
Delays and denials can have serious implications. Timely access to information can be a matter of life and death, and this is definitely the case in the context of a global health pandemic. At a time when First Nations should be focusing solely on protecting their communities, they're fighting the Ministry of Health for access to life-saving information.
It's for this reason that FIPPA includes a section titled Public Interest Paramount, which creates an obligation for the head of a public body to disclose information in the public interest, regardless of whether a formal request has been made. This obligation overrides the other sections of the Act, meaning that types of information that might otherwise be withheld must be disclosed without delay under certain circumstances, including information “about a risk of significant harm … to the health or safety of the public or a group of people.”
It should be uncontroversial that public interest is paramount when it comes to accessing government information. Few public officials would openly refute this principle. And yet, the specific section that enables such disclosure is seldom successfully invoked in practice. The bar to establish that something is
“clearly in the public interest” has been set high through precedent: The information in question must disclose the existence of a risk, describe the nature of the risk and potential associated harms, and it must allow the public to take or understand actions to meet or mitigate the risk or harm. Additionally, there must be a temporal urgency to the risk of harm.
While the threshold is high, all of these criteria are met in the current case. The Heiltsuk Nation, Nuu-chah-nulth Tribal Council, Tsilhqot'in National Government and the additional First Nations who have endorsed their application all need access to information about the location of proximate presumptive and confirmed cases of COVID-19 in order to take steps to mitigate risks to their communities. The B.C. government has this information, but is refusing to release it, in spite of a clear temporal urgency that grows by the day.
The continuing refusal to proactively disclose this information under Section 25(1)(a) of FIPPA raises serious questions about the B.C. government's commitment to transparency. The OIPC will now be tasked with investigating the matter. Even if the process moves as expeditiously as possible, it could take considerable time to conclude. During this time, the risks to First Nations communities will only persist and increase.
This is the terrible irony of this kind of complaint. For it to be successful, the OIPC must find the risks and the temporal urgency are clear. By implication, this means the Ministry of Health failed in its duty to proactively disclose the information in the first place. Such a finding could come too late for First Nations communities that could have used the information as a basis for earlier action to save lives.
Premier Horgan has a choice to make: Will his government continue to put Indigenous lives at-risk by obstructing and delaying the sharing of COVID-19 case information, only to potentially have it disclosed after a lengthy OIPC investigation? Or will he choose to proactively share the information First Nations leaders are seeking — on a basis that respects patient confidentiality — and reaffirm his commitment to reconciliation?
At a time when First Nations should be focusing solely on protecting their communities, they're fighting the Ministry of Health for access to life-saving information.
Marilyn Slett is chief councillor of the Heiltsuk Tribal Council; Dr. Judith Sayers is president of the Nuu-chahnulth Tribal Council; Mike Larsen is president of the B.C. Freedom of Information and Privacy Association; and Meghan McDermott is the interim policy director of the B.C. Civil Liberties Association.