There was a fair amount of good news about Freedom of Information rules and a little bit of bad news last month. But the bad news was serious and you really have to wonder why the government would bother with it when the rest of the news was good.
First for the good news. That began on May 9th when Finance Minister Mike de Jong announced that he was going to start proactively releasing information that had previously only been available through FOI requests.
If you put in an FOI request to the government, bang, it goes straight up on the government website announcing what you are looking for.
That was followed a week later by the Special Committee to Review the Freedom of Information and Protection of Privacy Act. This is a review that is done every five years and this time the unanimous report made a lot of solid recommendations. Probably the most important recommendation was that the government should have a duty to document its decisions which would do away with the baffling response of “no available records” when FOI requests were submitted about important public issues. They also recommended the government continue to require that personal information holdings be held in Canada and that the FOI legislation be extended the subsidiaries of public bodies. All good news.
But then there was the bad news. In the May 9th announcement Minister de Jong said, “All active FOI requests from April 1, 2016 onward are now being published in Open Information, a measure aimed at increasing government accountability, and also providing applicants with a means to track their requests.”
So that means if you put in an FOI request to the government, bang, it goes straight up on the government website announcing what you are looking for.
Why is that bad news? If you are a reporter or a researcher, chances are you would like to have advance access to the information before everyone else sees it. Originally, only the requester to the information received the information. Then the government changed the legislation so they could publish the response shortly after the requester received it. This new change telegraphs your intention even before, possibly months before, you get a response allowing other researchers and journalists access to your ideas.
As the BC Information Commissioner noted when BC Ferries started publicly releasing the results of FOI requests,
…the simultaneous disclosure practice… frustrates the purposes of FIPPA. This is because it may deter individuals, particularly journalists, from making access requests. Public bodies become less, not more accountable when journalists and others are deterred from making access requests.
This new practice may also violate privacy rules if a requester can be identified by the nature of the request. As others have noted, it may also raise questions of legal privilege.
There is no question that the government needs to be more accountable about the way it deals with its information. It got into a lot of trouble with “triple delete.” However, this looks less like accountability than it looks like discouraging people to use the FOI process. If they wanted to be more accountable they could penalize public bodies that stall the process. If they wanted to simply report on progress of requests they could do so by just publishing the file number and activities that had taken place without publishing the contents of the request.
So why would the government step on a good news story of FOI changes by including this new development? The changes (and changes proposed by the all-party committee) come after a great deal of pressure arising from media stories as well as pressure from the Information Commissioner. The government’s track record on FOI is not good. Perhaps they are just trying to balance off good changes they have been force to accept with measures that will discourage people from using the legislation.
The BC Office of the CCPA has joined with other individuals and organizations like the Freedom of Information and Privacy Association and the BC Civil Liberties Association to write to the province’s Information Commissioner about this subject. While she has no power to overrule the government, we have asked her to speak out publicly against the move.