Mar 29, 2022

Freedom of information review: how to fix a broken system

A lot of people don’t trust their governments these days. One of the things that undermines trust in government is when people don’t think government is being transparent. What is the government doing and how is it making its decisions?

That is where Freedom of Information (FOI) can come in. When FOI works, it lets people ask for information about things the government might not want to talk about. That’s when it works—but in British Columbia, far too often it doesn’t.

FOI legislation has been around in BC since the early 1990s. Every six years a legislative committee reviews BC’s Freedom of Information and Protection of Privacy Act (FIPPA) and makes suggestions to government as to how it can be improved. In 2010, 2016 and again this year, the CCPA–BC made a submission to the Committee on how we think the Act can be strengthened to better serve the public interest.

We made 25 recommendations this year that can mainly be sorted into four areas:

1) What doesn’t get written down by public officials and therefore can’t be obtained through FOI requests
2) What doesn’t get released even if an FOI request is made
3) What gets long delayed in spite of timelines established in the Act
4) What should be released proactively to cut through what is too often a complex and time consuming process

Government does have a “duty to document” its decisions but it’s not spelled out in the Freedom of Information Act. Instead, it’s in the Information Management Act. It doesn’t cover hundreds of public bodies (such as local governments, school boards and post-secondary institutions) outside the provincial government. A government minister has oversight, not the Information Commissioner, and as the Information Commissioner told the government, “that falls short of independent oversight.”

When FOI works, it lets people ask for information about things the government might not want to talk about.

There are plenty of loopholes in FIPPA to prevent the release of what does get written down. Under section 12 the government can stop the release of Cabinet secrets and the definition of that is pretty broad. Section 13 can prevent the release of “advice to government.” BC’s Information Commissioner called this the “Mack truck of exemptions.”

Both sections 12 and 13 have provisions that would permit release of this type of information, but judicial decisions have whittled down the power of these provisions. In 2010 and 2016, as well as this year, the CCPA advised the Committee studying the legislation to call on the government to amend these clauses to make transparency meaningful. In 2010 and 2016 the Committee made those recommendations and the government ignored them.

The NDP promised to make those changes when it ran for election in 2017. Somehow, those changes didn’t make it into the legislation passed last autumn that introduced an FOI application fee for the first time.

What the various loopholes don’t stop from getting released, fees often do. Fee estimates can be enormous. The Union of BC Indian Chiefs, for example, gets hit with thousands of dollars of fees when they are looking for documents to substantiate land claims.

Even if information is released, delays can go on for years. BC has the longest timelines of any Canadian jurisdiction—other jurisdictions require release within 30 calendar days. In BC it is 30 working days, or 42 calendar days. Public bodies can then take a 42-day extension, pretty well “just because.” They can then ask the Commissioner for another extension. This writer has never heard of one being denied.

And if they don’t have a reason to extend, they can just ask the requestor to give them more time. It shows the generosity of BC requestors that thousands of them give permission.

BC has the longest timelines of any Canadian jurisdiction.

In thousands of other cases, provincial agencies have just not bothered to meet the timeline or even to request an extension. The author of this note submitted five FOI requests between October 2021 and January 2022. In three of the cases the government failed to meet its deadlines despite having taken extensions. In one case they took two extensions that now run the timeline to six months. And in one case, the legal timeline was met–after taking an extension.

But blowing through the deadlines for a few weeks or months is nothing compared to what happens to some people. Ben Parfitt is a Resource Policy Analyst with the CCPA–BC. In August 2019 he submitted an FOI to the BC Ministry of Finance asking for a list of natural gas royalties paid to the government over several years broken down by company. Despite the fact that the same kind of information about stumpage fees paid by forest companies is publicly available, the Ministry of Finance refused to release the information on royalties. The issue is still before the Commissioner’s Office and will be for some time to come.

In another case, Parfitt asked for copies of reports by the Site C independent engineer, reports that are required by the water license. In this case, two years out, the government has only now belatedly released the first 1,000 of 8,000 pages, citing an “administrative error” for the lengthy delay that was only resolved following a complaint to the Office of the Information and Privacy Commissioner.

CCPA-BC Director Shannon Daub made a request for records about the provincial government’s engagement with stakeholders during the development of its 2016 climate plan. She filed the request in 2017, was subjected to a fee assessment (which she paid)—yet she didn’t receive the documents requested until May 2021, three and half years later.

The Information Commissioner’s Office has looked at the issue of missed deadlines more generally finding that:, “It is reasonable to conclude that this long-standing problem is caused by, at best, a knowing disregard for what the law requires.”

How do we fix this situation? The CCPA–BC and other groups have called for more information to be released proactively. The government has complained about the number of FOI requests it receives but if much of this information was routinely released it would cut the number of requests. Previous legislative committees studying the FOI legislation have called for this as well.

We also need more organizations to be added to the legislation’s coverage. There is no reason why organizations like the University of British Columbia and school boards should be able to create separate, subordinate organizations that they operate to avoid scrutiny under FOI.

The CCPA–BC and other groups have called for more information to be released proactively.

We need to hold the government accountable. We need timelines reduced to match other jurisdictions. We need penalties when timelines are ignored and when public officials fail to document government decisions. We need to make the administration of the Legislature subject to FOI, something all three parties have promised.

And we need to backtrack from the decision last fall to charge a fee for making information requests. When journalists along with organizations like CCPA–BC, the Wilderness Committee and the BC and the Independent Contractors and Business Association of BC are all on the same side, you know there’s support across the spectrum for change.

The government has said they want to deter “frivolous” requests, but as one media organization told the Committee, “There’s no way to deter frivolous requests without deterring important ones.”

Perhaps the most important thing to remember is this: it’s not the government’s information. As citizens, we have already paid for it through our taxes. It shouldn’t be hidden from us.

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You can access the full submission by CCPA–BC here.

Topics: Transparency & accountability