The 2010 Committee makes a number of largely administrative recommendations that mirrored the 2004 report.  This was not hard since the government refused to enact more than half of the 2004 changes.  On one critical issue, however, the 2010 Committee went backwards from the 2004 report.

Many of the people who made presentations to the Committee agreed section 13 of the legislation had become the biggest impediment to the free flow of information.  Section 13 permits government to “refuse to disclose to applicant information that would reveal advice or recommendations developed by or for a public body or a minister.”  However, the section also stipulates a wide range of circumstances where information can be released.  It stipulates a public body must not use section 13 to refuse to release, “any factual material.”

In 2002 a BC Court of Appeal decision basically wiped out the parts of the section that would permit the release of information. 

The 2004 Committee report said:

In the Commissioner’s opinion, this interpretation seriously undermines section 13(2)(a), which expressly provides that a public body cannot withhold  “any factual material” as advice or recommendations under section 13(1)…Another consequence of the decision is that individuals can be denied access to their own previously available information, for no other reason than that it was gathered, compiled or presented for the purpose of generating investigative or briefing material for a public body’s consideration in making a decision.

The 2004 Committee found the Commissioner’s argument compelling and said:

If left unchallenged, we believe the court decision has the potential to deny British Columbians access to a significant portion of records in the custody of public bodies and hence diminish accountability. 

This year’s Committee took a different tack.  Their report denies any need for change in section 13 saying only:

The majority of members think it is prudent to maintain the advice exception for evidence based interpretations, analyses and recommendations.

On the privacy side, the provincial government submitted a brief to the Committee seeking much wider ability to use and share personal information.  Currently, the legislation strictly regulates how personal information can be used.   The provincial government asked for and got a recommendation allowing citizens to simply consent to a public body disclosing their personal information.  This was despite an objection from the office of the Information and Privacy Commissioner who questioned if  “the concept of consent was meaningful because of the power imbalance between the clients and providers of on-line, integrated government services.”

In fairness there are some good recommendations in the report.  The Report calls for more proactive release of information and better use of technology, two areas where BC now lags most jurisdictions.  It called for including corporations created by public bodies under the FOI provisions.  It refuses the government’s call to eliminate the requirement that databases of personal information be stored in Canada.

On some critical issues, however, the Committee just ducked making a recommendation and left it to the government.  Section 25 of the legislation calls for the release of information if it is in the public interest, but again, this has been dramatically undermined by judicial decisions.  Rather than calling for a broader interpretation of the section the Report simply calls on the government to review the section in light of a Supreme Court decision.

Throughout the report the Committee relates without a hint of sarcasm that recommendations from the 2004 Report “remain under consideration” by the government six years after the report.

There was a time when British Columbia’s FOI legislation was considered among the best in the World.  Over the years judicial decisions have undermined important provisions and exemptions covering things like advice, Cabinet secrets, the financial interest of public bodies and the interest of third parties have now become all encompassing.  Witnesses before the Committee presented case after case of unreasonable delays and charges. 

Nothing in the Committee’s recommendations will deal with these issues.  If the 2004 Report was sweeping and courageous, the best that can be said for the 2010 report is narrow and timid.

The CCPA’s submission to the Committee can be found here.  Other submissions can be found here.

Personally, I think Loukidelis’s leadership was almost completely responsible for BC’s FOI legislation keeping any credibility.  When the legislation was introduced under the NDP government it was considered among the most progressive in the world.  Then the Commissioner’s Office faced funding cuts under both NDP and Liberal governments.  Understaffing has meant getting decisions can take years. Bad interpretations of the legislation whittled away at clauses that should have guaranteed access to government information.  Liberal amendments increased timelines and the burden on applicants.  Whole new areas were declared out of bounds while BC Ferries was reorganized as a private organization and out of reach of FOI.

Despite this, Loukidelis faced the Campbell government down on a number of issues.  His opposition was largely responsible for stopping amendments that would have moved the government’s privatization schemes completely out of reach of FOI.  His determined criticism forced major changes to the privacy of BC medical information handed over to private American companies to manage.  He ruled that former Deputy Premier Ken Dobell had breached the rules respecting lobbying.  He also initiated a change in procedures that cuts months out of the FOI process when public bodies just refused to acknowledge or answer requests (deemed refusal).

I violently disagreed with some decisions of his office when I was on the wrong end of them, but on the whole I think he stopped the legislation from becoming a bad joke.

As a public servant for 10 years he acted with principle and according to how he saw the law.  If he keeps this up the Liberals might well have cause to regret appointing him as deputy attorney general.

With Loukidelis’s departure the legislative review of the FOI Act becomes even more important.  This review is required by the Act every six years.  In 2004 a committee made up almost entirely of Liberal MLAs put forward proposals that would have strengthened the role FOI played in government accountability.  The government ignored the report.

Another good report from this committee would be helpful in keeping the possibility of good FOI legislation alive.  If you think our FOI legislation needs to be improved make a submission to the committee.  The deadline for submissions has been extended to February 28.  You can find out all about the committee and its work here.

Dave Schreck has an example of a good, short submission to the committee on his website dated January 12 that is worth looking at.

A February report from BC’s Information and Privacy Commissioner’s described what he called, “an unacceptable pattern of government-wide failure to respond to access requests in as timely a fashion as it should.”

But the Commissioner’s study grouped both requests for personal information and general information. The FIPA study, which had access to the government’s own FOI data base, looked only at general records.

Requests for general records…are made in order to scrutinize government policies and actions and hold the government accountable for them. When one focuses on requests for general information, an even darker pictured emerges of government non-compliance with the FOI Act.

The FOI act requires government to respond to these requests within 30 working days. FIPA found that between 2006 and 2008 more than half of responses failed to meet this legal requirement. People considered troublemakers by the government were much more likely to have their requests delayed. FIPA reports, “Our analysis found that political parties, interest groups and the media appear to be singled out for special treatment under the Act.” Ministries assign “sensitivity ratings” to FOI requests. The media, political parties and interest groups are much more likely than other groups to have their requests marked as highly sensitive. And highly sensitive requests are almost three times as likely to be delayed as those with a low sensitivity. At an average of 110 days to respond, highly sensitive requests took more than twice as long as low sensitivity requests. According to Professor Alasdair Roberts, the province’s FOI tracking system,

may be the most sophisticated of its kind in North America. It provides numerous details on who is making requests, response times and the eventual outcomes.

As bad as all this may seem, FIPA finds an even worse outcome. Fewer people and groups are even bothering to use the FOI legislation. Requests fell from 2,381 in 2006, to 2,225 in 2007 and then to 1,793 in 2008. FIPA says, “We attribute this to increasing frustration and disenchantment with the many barriers that now characterize the FOI process.” FIPA concludes:

“Over the past 10 years, a government culture has developed that employs every possible tactic to discourage and delay requests for information that it considers in any way “sensitive.” The culture of denial has employed a combination of budget and staff cuts, legislative and policy changes, government reorganization, delaying tactics, excessive use of the Act’s exceptions, and the extension of secrecy to additional government committees.”