Jan 19, 2016

Changes to FOI law a chance for the BC legislature to improve trust in government

By cat-transparency

Every six years the BC legislature reviews the provisions of the province’s Freedom of Information and Protection of Privacy Act and makes recommendations for changes.  The Special Committee to Review the Freedom of Information and Protection of Privacy Act held hearings on the legislation in the autumn and will be taking further submissions until January 29th.

The “delete, delete, delete” controversy has made access to government information an issue in recent months but the law is much more important in the long term from the perspective of transparency and government accountability.  The CCPA BC office is one of the many groups that has made submissions on the need for improvement in the legislation.  The following is a summary of that report.  The entire submission may be found here.  You can make a written, audio or video presentation to the committee here.

It is now pretty well taken for granted that Freedom of Information laws play an important role in our nation’s democracy. In Canada, this reaches all the way back to 1997 when Justice LaForest commented on the purpose of access to information legislation:

The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.

However, there is another important function to Freedom of Information legislation that receives less attention. The accountability and transparency arising from the legislation promotes trust in government. When citizens are confident the decisions of government are open and transparent they are more likely to trust and support those decisions. In recent years we have seen the citizens of British Columbia reject major policy initiatives on transit and taxation, to an important degree, because they lack trust in the governments which represent them.

We believe this declining level of trust arises at least partly from a declining level of confidence in the effectiveness of Freedom of Information and Protect ion of Privacy legislation in British Columbia.

There was a time when our legislation was considered to be among the best such in the world. Over time, the legislation itself has remained largely static. However, judicial decisions have undermined the powers of the legislation in a way contrary to the intent of the legislature that passed it. Section 13, dealing with advice to government, has been particularly weakened.

An increasing number of what were previously government functions have been privatized to private corporations beyond the reach of the legislation. Extremely long delays to acquire information from government have become too much the norm.

Most recently, accusations of a growing use of “oral government” have led people to wonder if information is being hidden from them. Without commenting on the validity of accusations it is sufficient to note the terms “triple delete” and “delete, delete, delete” have appeared dozens of times in BC newspapers in the past months with many more references on electronic media.

This Committee has the opportunity to rebuild public confidence in the legislation. This can be done by accepting the advice of the Legislature’s Information and Privacy Commissioner but equally importantly, by accepting innovations introduced to such legislation by other jurisdictions both in Canada and abroad. Much of the legislation in other parts of Canada and the world was informed by our innovative legislation in British Columbia. We can return the compliment by adopting the best from other jurisdictions.

We urge the Committee to be bold in its recommendations. While we will deal with these issues in more detail later in this brief there are four areas in which the Committee should recommend real improvements to the legislation. These are:

Duty to document

By accepting the advice of Information Commissioners across Canada, the BC Government can demonstrate its commitment to transparency by creating a legislated duty to document the deliberations, actions and decisions of public entities to promote transparency and accountability. We believe this is the most important recommendation this Committee can make.

1. Expanding coverage of the legislation

We recommend the Committee call on government to expand coverage of the legislation by:

a.  Reiterating the recommendation of the 2004 Review Committee to restore the public’s right to factual, investigative or background material under section 13.

b.  Extending coverage of the legislation to records held by outsourced service providers delivering a public service to the extent of that service.

c.  Extending coverage of the legislation to all corporations or entities owned or controlled by or created for public bodies or groups of public bodies covered by the legislation.

d.  Recommending that release of Cabinet documents be discretionary, as it is under Nova Scotia legislation, and compiling documents covered under sections 12 and 13 in a way that explicitly separates information which is releasable from that which is not.

2. Dealing with timelines

Many FOI requesters are waiting an unacceptable amount of time to receive a response to requests. This is caused by frequent failure to meet existing timelines as well as by extended delays for reviews in the Commissioner’s Office. As well, by using a 30 working day standard rather than 30 calendar days, BC already has the longest timelines in Canada. We suggest the Committee recommend:

a.  Reducing the time for an initial response from 30 to 20 working days as has been recommended by the Clyde Wells committee in Newfoundland.

b.  Implementing financial or administrative penalties for public bodies and heads of public bodies which fail to meet timelines on a regular basis.

c.  An increase in funding for agencies responding to Freedom of Information requests and for the Office of the Commissioner to permit timely responses both to information requests and reviews.

d.  The identification and proactive release of information regularly subject to access requests to reduce the burden on people processing FOI requests.

Implementation of the measures recommended above would restore British Columbia to leadership in Freedom of Information legislation in Canada.

It would be a bold move to restore trust in government.

3. Personal Information

While this brief will not comment on most issues related to personal information there is one issue we wish to address. There has been considerable discussion as to whether the TPP trade agreement invalidates the protection of section 30.1 of the legislation to ensure Canadian personal information remains within Canada.

The CCPA opposes any move to reduce or remove this protection.

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