Jul 12, 2021

In a flawed survey, BC seeks input on changes to freedom of information and privacy


It is again time to review British Columbia’s Freedom of Information and Privacy Act.

Every six years the legislature reviews the Act and the process has begun with the province placing a questionnaire online asking for people’s opinions. But before you go online to respond to the survey you might be interested in some background both on our freedom of information (FOI) legislation and the survey itself.

In 1996 BC’s NDP government enacted a new tool to give citizens a window into their government. This was the BC Freedom of Information and Protection of Privacy Act. At the time, the new law was seen as a world leading piece of legislation.

That changed over the next 25 years not because other jurisdictions got better but because the BC law got worse. Decisions in the courts whittled away at the legislation’s powers, particularly narrowing access to information that was considered “advice to government.” Sections on advice to government and cabinet secrets became black holes from which no information could emerge. Section 25 of the legislation, which requires that information be released if it is in the public interest, has been honoured almost only in its breach.

Decisions in the courts whittled away at the legislation’s powers.

In this respect, BC is pretty much in the same boat as Canada’s federal legislation. The Halifax based Centre for Law and Democracy prepares a “Right to Know Index” which ranks 129 countries on their freedom of information legislation. Canada ranked 52 in 2020. There is no reason to suspect BC’s legislation would rank any higher.

The BC law requires that a legislative committee review the legislation every six years, which has been done since 1996. Each committee has recommended ways the legislation could be strengthened. Governments in power have generally ignored these recommendations.

In 2017 there was reason to hope for improvement. In that election year the New Democratic Party committed itself to bring in legislation to document decision-making, ending the over-application of exceptions to the law with respect to cabinet records and policy advice and bringing more public bodies under the legislation. The Premier’s July 2017 mandate letter to the Minister of Citizen Services instructed her to “Improve access to information rules to provide greater public accountability.” and to “Improve response and processing times for freedom of Information requests.”

In the 2020 election the commitment to improve freedom of information in BC did not reappear. The November 2020 minister’s mandate letter did, however, instruct the minister to improve data security and privacy practices and to “Continue to provide British Columbians with timely access to information and ensure the system provides public accountability.” and to “Improve access to information rules to provide greater public accountability.”

One of the last acts of the legislature before it rose in June was to announce the creation of the legislative committee to review the Freedom of Information and Privacy Act once again as part of the six-year cycle. The committee has one year to report on its work but consultations have already begun.

Governments in power have generally ignored these recommendations.

The beginning of that consultation is an online survey that seeks the opinion of the public on various aspects of the legislation with a deadline of July 15.

The BC Freedom of information and Privacy Association (BC FIPA) has responded with some comments on the survey and some analysis of the questions which you can find here.

Perhaps the most significant comment in their review is “We were hoping for a survey that was open to wide-ranging public input and presented an opportunity to contribute to a forward-looking vision which improved the system. On review, what we see is a document that creates the illusion of consultation, with more than a few leading questions.”

From my perspective, what is most offensive about this survey are the forced choice questions requiring people to rank how important they think certain things are.

One question asks you to rank in order of importance for those seeking government data:

  • The speed of response
  • Low cost / no cost to me
  • The amount of information I get back
  • That I get the information digitally
  • That I get the information I was looking for (accuracy)

Another question asks you to rank how concerned you are about the following:

  • Government using my personal information in ways I have not consented
  • Organizations selling my personal information
  • Accidental information loss, such as misdirected mail
  • Hackers stealing my personal information and/or committing identity theft
  • Unauthorized monitoring by other governments

In effect, in each case they are asking you to say which of these you consider unimportant.

Here is a comparable question you might consider.

Which of the following is important for you to have in your car?

  • An engine
  • Brakes
  • A Steering wheel
  • Wheels
  • A windshield that you can see through.

All of these points are important and should be delivered by the government. We should not have to choose whether we would prefer to receive our information incomplete, at significant expense, slowly or inaccurately. If this were a buffet I would go to a different restaurant.

Other parts of the survey provide some hints as to the sort of reaction the government is hoping to get. Early on in the survey we find the following statement: “In 2004, the Freedom of Information and Protection of Privacy Act (FOIPPA) was updated to keep British Columbians’ personal information in Canada; however, these rules have left B.C. falling behind other provinces. It has also made it more difficult and often more expensive for government to use new or innovative technology.”

For the government, minimizing the cost of providing information to the public seems to be a higher priority than providing information. On other questions (“How are we falling behind other provinces?” “Why is it more difficult to have innovative technology?”), the targeted answer seems to be doing away with the requirement to keep our private information in Canada so that “Government can use and build on the latest technology from around the world.” I suspect many British Columbians would find trading the protection of keeping their information in Canada for “innovative technology” might not be acceptable.

So go ahead and respond to the government’s survey and consider using the open questions to let them know what you think of the process.

Disclosure Note: Keith Reynolds is on the Board of the BC Freedom of Information and Privacy Association (BC FIPA). These comments are his personal views and not necessarily those of BC FIPA.

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