Jun 1, 2010

Legislative review of FOI Act narrow and timid


A legislative committee reviewing BC’s Freedom of Information and Protection of Privacy Act reported on May 31st and the results were disappointing.  They certainly did not live up to the previous legislative review in 2004.  Back then government backbenchers on the Committee made recommendations leaders of the government didn’t like.  The 2004 Committee made recommendations that were sweeping and courageous in terms of access and privacy laws that worked. 

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.