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  Submission by

The B.C. Journalists Committee for Freedom of Information

  To the 

 Special Committee of the Legislative Assembly

On The

Review of the Freedom of Information and Protection of Privacy Act

October 29, 1998

 

Presented by Jeff Lee, Chair

http://www.opengovernmentcanada.org/bcjc

Table of Contents

1.     Introduction     

2.     The Culture of Official Adversarialism     

3.     Media use of the Act 

4.     Cost of Administering the Act

5.     The Issue of Fees and Waivers for Fees

6.     The Increased Use of Time Delays

7.     Use of Notwithstanding Clauses

8.     The Need for Penalties

9.    The Need for Sunshine Legislation

10. Problems Facing Freelance Writers and Researchers

11. The Need for a Lay Panel to Review Commissioner’s Orders

12. Public-Private Partnerships and Public Sector Restructuring

13. Comments on ISTA’s Corporate Submission Project

14. Members of BCJC

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Introduction

At the outset, it is important for the B.C. Journalists Committee for Freedom of Information to point out that it is reluctantly making a submission to the Special Legislative Committee to Review the FOIPP Act.

Journalists enjoy a unique relationship with government in that they are expected to stand on the sidelines and watch and report without passion or criticism the workings of government.

Ordinarily, this relationship would prevent the direct interaction by the media on advocacy issues. In this case, however, BCJC has undertaken to make a submission to the committee on behalf of journalists and media who use the Act in the commission of their jobs.

BCJC is an unstructured group of print, radio and television journalists, media organizations and others who are concerned about the provincial government's review the FOIPP Act. We receive no public funding, and all participate as volunteers. We’ve come together for the express purpose of presenting to the government our unique views about the Act and how it should be preserved and enhanced.

This submission contains a number of observations, criticisms and recommendations. It also includes a rebuttal to recommendations made to the legislative committee by the government through Information, Science and Technology Agency’s Corporate Submission Project.

As well, it includes an appended report by BCJC and the B.C. Press Council of significant stories broken by print media through the use of the Act.

The review, For The Record, is a quantitative as well as qualitative example of the tangible benefits the FOIPP Act provides to British Columbians.

Despite our overall views about how public bodies have responded to the Act, and our concern that the legislation needs to be strengthened, BCJC lauds the government for enacting the legislation.

The Act has proved itself a valuable instrument for helping journalists in B.C. keep the public informed. People are better off because of this legislation.

It is sometimes difficult for a government to see the need for protecting and enshrining the public’s right of access when it daily suffers from the power the Act gives the public. It takes courage for a government to enact freedom of information legislation, especially when that act of good government is rewarded with critical stories based on embarrassing information obtained under the new law.

It has not been an easy ride for the current provincial government. It has been on the receiving end of many critical investigative stories broken through FOI.

Now, in the midst of a mandatory four-year review of the Act, the government appears prepared to weaken the legislation. It has hinted at raising the fees people should pay for accessing information, and it has deeply cut the budgets of many departments’ FOI offices.

It has also been offered recommendations from government ministries and public bodies that, if accepted, would severely damage the Act.

BCJC wants to remind the government that the Act is a living, breathing document that represents the rights of the public to know how its elected and non-elected officials conduct public business.

It is also a document that is greater than the sum total of the political parties that from time to time hold power and make decisions. Governments come and governments go. Laws enshrining public right of access to the workings of government should not be subject to short-term political arguments.

We ask that the legislative committee, and consequently the provincial government, resist any attempt to weaken the legislation. We call upon you to travel in an exactly opposite direction, bringing in reforms to give greater access to the public. Send a signal that government was not wrong-headed in enacting the FOIPP Act.

BCJC accepts that there are many competing and contradictory views about how the FOIPP Act should be amended. Some organizations have appeared before you suggesting that the Act be watered down. Others have argued that it is being misused, and despite the statistics that show otherwise, that it is abused by the media.

BCJC’s recommendations to this committee are framed around a belief that the public has not only a right to know how its government conducts business on behalf of its citizens, but a timely right to that access.

In that vein, our recommendations look to future needs of the province, and we offer them in a spirit of cooperation, not antagonism.

Over the course of the last year the journalists’ committee met a number of times in an effort to pinpoint those issues we believe the legislative committee should address. Some of our concerns may prove difficult for the government committee to enact immediately. Others may be simply remedied through a change in attitude towards how the Act should be administered.

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The Culture of Official Adversarialism

When the FOIPP Act was proclaimed, the public was told the legislation was not intended to serve as an avenue of first request for information. The public was assured that routine requests for information would not require official application under the Act.

In practice, however, the government has gradually taken to demanding more and more that people apply for access to information by submitting a request under the Act, even when such material may not be required to be covered under the Act.

Journalists frequently find demands for routine information are met with the response “Put it in writing as a formal request.”

Common examples of this are when a member of the media asks for the salary of a government employee or a copy of a financial report.

There can be no better example of this issue than the case of Professor Alasdair Roberts, of the School of Public Policy, Queens University. In preparing a study titled “Limited Access: Assessing the Health of Canada’s Freedom of Information Laws”, he learned the Information, Science and Technology Agency maintains a “request tracking system” that tabulates data about requests to the provincial government but does not publicly report the data.

When he asked ISTA for a copy of the statistics, he was told to make an application under the Act.

Here’s what an official of the agency responsible for administering the FOIPP Act  told Legislative Assembly on Nov. 19, 1997 about how informal requests are handled:

“Frequently we get an informal request. It’s a phone call, it’s an e-mail – whatever. If this is not for information that is not routinely released or routinely available, we will then ask that person to formalize it in a written request . . .”

Frequently, journalists encounter official adversarialism from bureaucrats who seem willing to consider the FOIPP Act not as a tool to facilitate the timely release of information, but a rampart from which to hold back invading hordes of reporters who might threaten the sanctity of their ministries and their jobs.

The Vancouver Sun encountered one such example in 1997 when it attempted to understand the breadth and depth of harassment in government agencies.

The newspaper submitted a request to every ministry, crown agency, health region, college and university for severed documents relating to harassment complaints. It also asked for statistics on the number and type of complaints received.

The Public Sector Employee Relations Commission informed the newspaper that it had assumed control of the request. Despite the newspaper’s stated request that it was not asking for any information that would identify either specific complainants or their alleged harassers, PSERC completely refused to provide the information.

Further, it misdirected ministries and crown agencies on the issue of statistics, and refused to give the newspaper information breaking down complaints by ministry.

When the newspaper complained that a simple request for non-identifiable information was being mistreated, the PSERC official’s response was that she did not care, and that she would “love” to see the newspaper take the issue to the Office of the Information and Privacy Commissioner.

The newspaper subsequently appealed to the commissioner, whose portfolio officers were also unable to obtain a satisfactory resolution. The request took so much time to complete that the meager information eventually released was almost valueless.

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Media Use of the Act

It is important for the legislative committee and the government to understand how often the media use the Act in comparison to other requesters.

According to ISTA’s request tracking system, media requests accounted for about 4.5 per cent of all requests filed each year.

 

Percentage Requests under the FOIPP Act, by type

Note: Classification is done using information volunteered by the applicant

In response to remarks made to the legislative committee about so-called time-consuming “driftnet fishing” requests, ISTA was unable to substantiate which category is most responsible for these kinds of requests. It noted that of the 29 such “fishing expeditions” launched in 1997, applicants were not only media, but lawyers, interest groups and political parties.

But the fact remains that the government appears convinced that the media are largely responsible for driving up the cost of administering the Act.

In March, 1997, Deputy Premier Dan Miller suggested that fees should be raised, noting he didn’t believe the Act’s low fee schedule should be “an explicit subsidy to major media conglomerates.”

He later backed off his comments, saying no fees would be raised until a complete review of the Act was complete. However, the government’s action this spring in slashing budgets and proposing new fees in advance of this legislative committee’s report belied that promise.

Nevertheless, the media do not account for a majority, or even a statistically significant number of the requests the government receives. It does, however, account for some of the most important public policy issues that arise out of information requests. This is the seminal reason for which the media arguably exist; to inform the public about the news and workings of our society.

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Cost of Administering the Act

At the outset, BCJC must report that it does not trust the government’s figures that indicate it costs more than $20 million a year to administer the Act. It also supports the B.C. Freedom of Information and Privacy Association’s call for the Auditor-General to examine the government’s budgeting processes regarding this issue.

We also note that in compiling a list of costs for the legislative committee, ISTA has included $3 million for “communication costs related to deliver of FOI” and $2.63 million for operation of the Office of the Information and Privacy Commissioner.

We fail to understand why the government views communications management as necessary in the deliver of FOI material. We are also concerned that this is both an attempt to inflate the true cost of administering the Act and an indication that the government tries to control in advance any potential damage an unflattering release of information may create.

We also believe that the cost of operating the OIPC should not be included in the cost of processing requests. The commissioner’s office deals with many issues relating to access to information and protection of privacy that are not directly associated with the processing of requests for information. Such examples are the advice the commissioner gives to government agencies and the site inspections he undertakes in ensuring public bodies adhere to the Act.

Nevertheless, it is a fact that the Act is costly to administer. BCJC, like other groups, believes this is in large part due to the adversarial way in which public bodies deal with requests for information and the manner in which they undertake records management.

In many cases, the cost is driven up by the government itself by how it responds to demands. A federal study cited by Roberts, for example, found that one third of all federal Access to Information costs were related to staff trying to determine which material should be withheld from requesters.

 BCJC believes the following will significantly reduce the cost of administering the Act:

1.     Relax the need for line-by-line examination of documents that clearly do not pose privacy concerns.

2.     Make more readily available information that can be routinely released.

3.     Direct staff to not insist on formal requests under the Act as a first line of response. Divert simple requests for information out of the FOI stream.

4.     Embark on a public education program, through the production of pamphlets, seminars and toll-free help lines. For example, the government would benefit from publishing user-friendly guides that identify how to make requests and what constitute the most common problems people face.

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The Issue of Fees and Waivers for Fees

There is no doubt that the government’s current method of administering the FOIPP Act is costly and that public bodies want to recover some of those costs from people who avail themselves of the legislation.

It is one of BCJC’s main arguments that the timely release of information to the public is not just a right of the public, but a responsibility of the public body.

It is difficult to disagree with the notion that people should be asked to bear a certain portion of the cost of providing them with the information they seek. However, that notion should not be justification for setting fee amounts that frustrate the release of information or appear punitive in nature.

In the case of the federal government, applicants are required to submit a token $5 for each request they make. BCJC would prefer no application fee is levied.

We are concerned about the government’s overall trend towards charging applicants – particularly journalists - increasingly higher fees for processing requests. Applicants are often met with search fees of between several hundred and several thousand dollars for information that could either be made available in a reading room or could be considered routinely releasable. As well, fee demands are based upon subjective determinations and sometimes appear to be set arbitrarily high on issues that pose embarrassing to the public body.

The government has in recent years suggested the media be considered corporate users of the Act, meaning large fees would apply to every request. It has also argued that use of the material by the media serves little purpose other than to “sell newspapers” or increase television viewership.

But these arguments fail a simple test. Print and electronic media serve the purpose of informing the public about the actions of government. Journalists write stories not to serve their advertisers or increase circulation, but rather to educate people about important public matters.

Most media organizations cannot afford to pay for public information obtained through the FOIPP Act. Many users work for community newspapers or are journalists from smaller communities. Freelance writers and researchers also face financial constraints, even though the material they seek is needed for a project that will be published for public benefit. (This subject is dealt with at length in a separate section.)

Often, public bodies appear to build fee demands around a misunderstanding of what the applicant wants or what he would be satisfied with obtaining from the public body. The most outrageous fee demands appear to be made by agencies that do not understand what the reporter is looking for, and they simply respond with an exorbitant fee as a way of either discouraging the applicant, or forcing him to revise the request downward.

One recent example was cited by Jeff Nagel of the Terrace Standard, who received a fee estimate of more than $13,000 for the production of 16,250 pages of material relating to the government’s actions around the Skeena Cellulose crisis.

In another case, former Vancouver Sun reporter Stewart Bell was given a fee estimate of $36,000 by B.C. Hydro after he requested a list of properties sold by the crown agency. He never received the information.

The Act contemplates the provision of fee waivers under a variety of conditions, such as when someone can’t afford to pay the fee, or when an issue is in the public interest or relates to public health or safety.

Unfortunately, however, BCJC must point out that until earlier this year, appeals of  fee waiver denials were never successful. Recently, the Information and Privacy Commissioner ordered the Municipality of Delta to release information to the Delta Optimist without collecting a fee. It was the first and only time an appeal on such grounds was granted to a media organization.

Conversely, the provincial government appears to have adopted a structured methodology for how to decline fee waiver requests. One example is an internal document used by the Ministry of Employment and Investment that subjectively determines if an applicant meets fee waiver guidelines. The document is structured in such a way that it is almost impossible for an applicant to succeed in a demand for relief.

Some of the questions FOI coordinators were supposed to ask of themselves in considering a fee waiver:

“Is the request about a specific definable issue (as opposed to a broad general request)”

“Will the public be affected by this issue”

“Is there a large portion of the public that is confused about this issue? (Not to confuse in the public interest with of interest to the public.)”

“Does the applicant have the ability to ensure that the public interest concerns will be met?”

It is not known by what tests and criteria the public servant can objectively answer those questions in such a way that a fee waiver can be granted. It is also arguable that the FOI coordinator has no business making those subjective determinations in the first place.

It should be obvious that there is no quicker way to discourage use of the Act than to unreasonably apply demands for fees, or to deny requests for fee waivers. The legislative committee and the government must realize that the media fulfills a unique role in interaction between the public and its government.

BCJC recommends the legislative committee amend the Act to acknowledge this unique role when public bodies consider levying fees. Public bodies should waive fees for most requests from media on the basis that a public service is being performed. In the case of broad cross-government requests, or those requiring an extensive search, some measure of fees may be justified but these cases should be reviewed on an individual basis.

The committee should also re-examine the reasons why fee waivers have been consistently denied and ask the government to instruct public bodies to stop refusing waivers wholesale.

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The Increased Use of Time Delays

In the last three years, the median response time for requests under the Act has doubled, a clear sign that the legislation is under duress from lack of resources and a lack of commitment on behalf of the provincial government.

According to the Queens University study, the proportion of requests answered within B.C.’s  mandatory 30-day reporting period declined from 55 per cent in 1995 to 34 per cent in 1997. In the same period, the percentage of requests requiring 60 days for a response increased from 18 to 49 per cent. Requests requiring more than three months jumped from three to 37 per cent.

According to the Office of the Information and Privacy Commissioner, the number of time extensions public bodies applied to the commissioner for jumped from 13 in the year the Act was proclaimed, to 85 in 1996-97. (It reached an all-time high of 107 in 1995-96).

The most common reason cited for these time delays is lack of government resources to permit FOI coordinators to meet their statutory obligations. Tight budgetary constraints placed on departments have the effect of forcing public bodies to “stack” requests. There are no punitive actions that a requester can take against a public body that refuses to comply with the Act.

However, it should be noted that in many cases, requesters understand the fiscal problems the government faces and prosaically, understand getting a request unblocked on a time delay is akin to squeezing blood from a stone.

The problem of time delays is not unique to the B.C. government. Many provincial governments, and the federal government, suffer under the same difficulties. In 1997, the federal Information Commissioner identified the problem as a “festering, silent scandal.”

The provincial government’s response to increased time delays was not heartening. This year, despite concerns of the provincial information and privacy commissioner and a number of advocacy groups – including BCJC – the province cut the number of staff in many FOI departments, slashed budgets and raised fees.

Given this response, it is difficult for BCJC to have any faith that any recommendations it may make regarding time delays will be accepted. However, it is of the firm view that in fostering a culture that permits wholesale violation of the mandatory reporting statutes, the government is signaling the Act is not worth protecting and the public’s right to know is not reasonable.

We would like to believe this theory is not actually true. BCJC recommends that the provincial government recommit to upholding not only the spirit, but the law of the Act, and that it commit sufficient resources to its ministries and crown agencies to see they meet their statutory obligations.

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Use of Notwithstanding Clauses

In recent years the government has sought to neutralize the effectiveness of the Act by including “notwithstanding” clauses in new legislation where it considers release of information would hurt the agency or its officials.

The use of “notwithstanding” clauses appears to represent the government’s seminal concerns that it created an Act that is too powerful when wielded by the ordinary citizen. Rather than let the Act take care of any concerns the new agencies may have about releasing information, the government has adopted a method of fettering the Act without amending it.

One such offensive example of a “notwithstanding” clause is the Childrens Commission Act, 1997. The commission is exempted from the FOIPP Act under a notwithstanding clause. Considering that the commission was created as a result of a public inquiry sparked  by media stories about the deaths of children in the care of the provincial government, it is sadly ironic that the government has now created a mechanism that prevents the public from independently knowing when children in government care are at risk.

BCJC’s view is that the FOIPP Act adequately deals with preventing the release of information that should not be in the public domain. There should be no reason for the use of any “notwithstanding” clauses exempting agencies from the Act.

We recommend the government revisit legislation it has passed that include such clauses, and amend them to make the public bodies fully covered under the FOIPP Act.

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The Need for Penalties For Tampering With The Act

One of the glaring omissions in B.C.’s FOIPP Act is the lack of enforcement provisions for people who do not comply with the Act.

The Act, like any other piece of public access legislation, is effective only if it is administered properly by people who honor its intentions. There is no doubt that most officials attempt to comply with the Act to the best of their abilities.

However, there is little that an applicant can do when met with obstruction by a person who is intent upon not releasing information for reasons other than allowed in the Act.

There are currently only four provincial jurisdictions – Alberta, Quebec, Yukon and Manitoba – which have established penalties for document tampering. In early October, the federal Commons Justice Committee also approved a private member’s bill that would call for significant jail terms and fines for government employees who tamper with official documents.

BCJC is not aware of any clear-cut examples of provincial documents being altered or destroyed, although there is anecdotal evidence around the issue of electronic mail being erased. There are also occasional incidents in which documents surface via leaks despite having not been found during routine access requests, leading one to wonder whether officials attempt to suppress information in attempts to prevent embarrassment.

The best-known recent example of this kind of omission was the so-called “budget lie” of 1996. A key document that tied the entire issue together was not included in material obtained by The Vancouver Sun under the FOIPP Act. The document was leaked subsequently by an official. The government later suggested a clerical error was to blame for the document not being released with the other material. However, the issue would likely not have been written about without that key document.

There are two significant examples of malicious non-compliance at the federal level. That should serve as ample reason why the provincial government should enact legislation that would allow officials to be fined and/or jailed for significant non-compliance with the FOIPP Act.

One was the destruction of records of the Canadian Blood Committee following a request under Access to Information laws. The other was the manipulation of documents relating to mistreatment of Somalia citizens by the Canadian military.

BCJC is not suggesting officials be subject to those penalties for necessarily failing to do their jobs, but rather in circumstances where there is a demonstrated attempt to frustrate the intentions of the Act.

BCJC recommends the government enact legislation similar to that proposed at the federal level, including jail terms of up to two years or fines up to $10,000 for government employees who destroy or tamper with official documents.

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The Need for Sunshine Legislation and Open Meetings Laws

This chapter of the BCJC submission deals with the need for open meeting laws, and with the concern that elected officials are unreasonably putting more information behind closed doors.

The public has long been promised “open and honest” government in British Columbia.

The current government says it is committed to openness and followed through on its commitment by passing the Freedom of Information and Protection of Privacy Act, SBC 1992.

The legislation applies to all levels of government, including regional and municipal governments, public bodies such as school boards and police boards, and self-regulated professions such as the medical and legal professions.

But on the issue of open meetings, such as those held by municipal councils, the Act is significantly silent.

A report titled “Extending Freedom of Information and Privacy Rights in British Columbia” prepared by a committee headed by then-MLA Barry Jones concluded that some regulations were necessary governing “in-camera” meetings. It suggested putting reasonable limits on topics that can be discussed behind closed doors and limits on how long that information may remain confidential. However, the government has so far failed to take action on the Jones report recommendations.

In camera items are usually referred to as the “three L’s” – land acquisition, labour relations and legal advice. But lack of reasonable limits on topics to be discussed at in camera meetings often lead to abuses.

One need only look at how a single municipality has regarded the public’s right to know how it conducts the public business.

In 1996, West Vancouver council kept in camera a report on proposed road closures. Municipal council did not feel it was an issue that should be made public. The report was never adopted, and a fatal truck accident later occurred on one of the streets.

Between December, 1997 and May, 1998, the same council met privately with a major developer and gave it permission to clear some district-owned lands for road rights-of-way and new homes. Council had not yet approved bylaws for a private subdivision, and there was no public discussion about the destruction of public lands. The deal only became known after a community group became aware of the issue and made it public.

In October, 1998, West Vancouver’s mayor refused to release a sections of a consultant’s report which examined council’s effectiveness. The report was shown to staff and council in camera, but certain portions that were mildly critical of the mayor were severed. The district eventually released the information after a public outcry ensued.

A discussion paper prepared for the B.C. Freedom of Information and Privacy Association on the need for so-called “sunshine” legislation pointed to other instances where matters not traditionally considered to be of an in camera nature were put behind closed doors.

The report, prepared by Michael P. Doherty of the B.C. Public Interest Advocacy Centre, cited several examples of in camera meetings when topics other than land, labour and legal matters were discussed.

FIPA has also raised concerns about the increased use of lawyers at in camera meetings as a way of preventing information from being released to the public. By having a lawyer sit in a meeting, regardless of whether the issue is related to legal matters, the council can  - and has – argued that the matter can’t be disclosed because legal counsel was present.

“Sunshine” legislation is considered to be so important in the United States that the U.S. government and every state in the Union have such laws supporting the limitation of what can be discussed in private by elected officials.

BCJC adopts FIPA’s view that the government should bring in new laws governing in camera meetings. We believe a new statute should be enacted giving the public positive right of access to government meetings and requiring government agencies to conduct their meetings in an open manner. Such “sunshine” legislation in the U.S. is typically called “open meeting” legislation.

We would argue that even in the case of the traditional reasons for items to be held in camera – land acquisition, labour relations and legal matters – the rules for denying public access should be used sparingly. It is BCJC’s belief that a culture of openness breeds a culture of trust and understanding. Only matters of a highly sensitive nature should be considered out of the public’s view, and even then there should be limits on what can be withheld, and when the issue should be released to the public.

It is worth noting that after journalists challenged the City of Vancouver’s in camera policy several years ago, the council of the day responded by requiring the mayor to make public at the next available opportunity a list of issues that had been discussed in the closed door meetings. This did not prevent, however, the city from keeping secret issues that were unresolved, such as incomplete property matters, some personnel issues, and ongoing legal matters.

In conclusion, we submit that in these times of distrust of authority and lack of confidence in government, it behooves elected representatives to set good public policy for administrators and bureaucrats to follow. Enacting “sunshine” legislation is not only good policy; it sends the message “We have nothing to hide.”

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Problems Encountered by Freelance Writers and Researchers

Access to records, in both public and private sources, is crucial to a journalist's ability to write a well-supported story.  Concise legislation supporting access to information is equally essential to ensuring a responsible and active media.  The most common example of this is the effect that FOI legislation has had on full-time television, radio and print journalists.  The Act has at once provided much-needed protection for the privacy of individuals, and created a mechanism in which  access to information and freedom of speech by the media can be assured. 

But it has also provides support for another source of writers and photographers - the freelance journalists and researchers who work on contract for publishers or broadcasters, or who gather information on the workings of government for books and other publications.  Many of these individuals are not members of a union and cannot afford the benefits of legal counsel.  Like the employed reporter, the freelancer's success relies upon self-education.  But the freelancer often works without the support of a large corporation or company that can provide both resources and weight to attaining that goal. 

To anyone new at using the FOIPP Act, negotiating through the maze of regulations in the Act can at times be a bit like a mine field, weighing the need for legal assistance against the researcher's limited knowledge and the sometimes equally limited assistance of the Information and Privacy Branch.  In the case of one BCJC member, her first FOI request was fraught with mistakes and wrong turns. Some of those errors were due to her ignorance of  the FOIPP Act and some were due to incomplete or inconsistent information on the part of the public body contacted (such as how to file an FOI request for a broad scope of documents).  For the freelancer or researcher with limited finances and a set deadline, such mistakes can have serious consequences.

There are a number of sections of the Act that directly or indirectly effect the freelancer's ability to access records.  The problems that will be discussed here are: a) The impact of cost on the freelancer, b) Public Interest, c) Research agreements, d) "Repetitious requesters".  A list of suggestions to reduce fees is also included following this section.

Costs Associated with Viewing Records

For the freelancer without corporate backing, affordable fees can make the difference between being completing an essential section of research on time or jeopardizing the success of the project entirely. 

In spirit, sections 75-5 (a) and (b) (fee waivers based on inability to pay and public interest) provide constructive protection for the researcher who cannot afford retrieval costs.  But there are a number of problems with the Act's approach in this matter, since it assumes that the requester has the time to wait out lengthy appeals.  Many freelance researchers depend upon grants, publication deadlines or other time-bound commitments for completing specific elements of their research.  Such grants may also not include the costs of accessing provincial records.  The researcher must then either a) come up with another grant for paying for the fees (a difficult undertaking in anything less than a year) or b) appeal for a fee waiver.  Simply the act of initiating an appeal can set the researcher's project back several months. 

The BCJC member who wrote this section has been told by one Information and Privacy officer that their branch routinely "halves" the fees if the cost is appealed.  In situations where the fee estimate is several thousand dollars, cutting the fee in half for a researcher that has no accessibility to funding is a useless gesture.  The researcher therefore has no recourse but to apply to the Commissioner's Office, which delays the project further.

One mainstream journalist pointed out that the reporter can often eliminate or reduce fee estimates by paring down the selection of records he wishes to see.  An independent researcher may not have that option, either because of the size or the exclusive nature of the research (such as a book on the history of a public institution).  Thus fee estimates can have a decisive impact on the freelancer's ability to complete an actual body of work.

These problems raise an important question as to whether the Act presently accomplishes its mandate of ensuring that all requesters have equal ability to access public records.

In the Public's Interest

Current rulings by the Information and Privacy Commissioner's office provide a basic "test system" for determining whether fees should be waived on the basis of public interest. 

On the surface, the process for justifying such a request seems straight forward.  The question is whether the public bodies are using the same criteria to evaluate fee waiver appeals.  In the experience of one BCJC member, the request for a waiver was denied on both the basis of public interest and inability to pay.  No detailed reason was given for the denial of 75-5(b) (public interest), despite the fact that the applicant was able to justify the request on the criteria provided by the Commissioner's office, and that some of the  records sought have already been declared a matter of public interest.

Until earlier this year, only one individual has been awarded a fee waiver by the Commissioner's office since the Act was enacted.  The applicant was a researcher affiliated with the University of Victoria.  No other fee waivers have been upheld by the Commissioner's office, either because of inability to pay or public interest, with the exception of the case against the Municipality of Delta, which was ordered this year to provide expense records of a government official to the Delta Optimist.  States the commissioner in his ruling on Order 155: "If the applicant's primary purpose is to serve a private interest, then the head may be justified in refusing to waive fees, even where he or she is of the opinion that the records do relate to a matter of public interest."  However, what happens if the intent of the project is to both inform the public, and make a living?  Will the requester be viewed as deserving as a researcher who has the backing and funding of a large educational institution, who does not rely on revenues for support?   As the Commissioner points out: "The revenues from writing and publishing a scholarly book in Canada are minimal."

Research Agreements

The research agreement is a contract that binds the researcher to the adherence of the Act and spells out the precise responsibilities of the researcher.  It provides another means for ensuring that access to personal information is not abused.  For the freelancer, it is a vital tool to ensuring expedient and inexpensive access to records. 

Because of funding limitations at British Columbia's Public Archives, research agreements have become a crucial tool for ensuring public access to archival records.  Research agreements can also be granted by other ministries, although the system for determining the researcher's eligibility is slightly different.  It is also, for some reason, harder to get. 

The standard research agreement may be an excellent way for public bodies to control the dissemination of personal information, without increasing costs.  Present approaches towards research agreements by ministries however, make it a worrisome prospect for researchers (who are afraid of signing something that even the ministry says it doesn't understand) and the public body that may be unfamiliar with the mechanics of such an agreement.

Vexatious Requesters: A Matter of Intent or a Matter of Knowledge?

Section 43 protects ministries from "repetitious" requesters whose intent is deemed to be the harassment of the public body or its personnel.   But what about those requesters who submit a large number of requests simply based on the procedural information they were given?

In the case of one BCJC member who specializes in freelance writing, the initial FOI requests were submitted based on information located in the Directory of Records and information received from several divisions of a public body.  Because of the specific nature of the research,  the applicant  was told to generate a separate request for each division of the ministry in which records might be held.  She later discovered that the information was out of date, and according to some sources, would have been better off submitting one general request.

Ironically, these mistakes placed the applicant in that category of sending "too many" requests to a single ministry, since the requests were later funnelled into the Information and Privacy Branch and processed as a formal request.  The applicant’s intention had been to provide a template to each office, by which concise and specific information could be identified. Instead, it became an issue of contention for the Information and Privacy Branch, which objected to having to deal with 13 separate requests, and could have placed the applicant under the jurisdiction of Section 43.

The simple advantage of having up-to-date information on the process for filing a request will expedite requests.  It will also lessen the workload for public bodies and diminish the number of possible "repetitious" requesters.

Increasing Fees: Some Alternatives

Increasing search and retrieval fees will only further jeopardize the ability of freelance journalists to access public information.  Financial limitations to the access of public information can have a far-reaching effect on the freelancer's ability to compete in the marketplace and increases the overhead on private ventures such as videos, books and smaller works. 

Alternatives to increasing such costs include:

1.      Provide seminars and workshops on the FOI Act.  The classes could be underwritten by the government and hosted at local colleges and universities.  They can also be used to communicate typical problems identified by public bodies and methods for streamlining requests (i.e., methods to avoid what the public bodies refer to as "fishing expeditions.")

2.      Standardize the documentation generated by public bodies.  The average page count of correspondence one applicant received (not counting the listing of documents initially requested) ranged from six to 20 pages.  There is no doubt that this increases staff costs.

3.      Encourage public bodies to settle fee waiver requests and other problems themselves, rather than allowing it to go on to the Commissioner's office.

4.       Encourage the public body to look for innovative ways to reduce costs, such as allowing the researcher to bring in their own paper, or other methods that would help diminish fees.

5.     Set up a standard location (or series of locations) for research, such as is done at the Provincial Archives.  The most consistent defense heard against researchers viewing records is that there are no facilities, and facilities cost money.  Resources could be consolidated to provide a reading area for several ministries, with trained FOI specialists to ensure rules are enforced.

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The Need for a Lay Panel to Review Commissioner’s Orders

"For all complaints and requests for review the commissioner's overriding policy is to encourage the parties to resolve the issues by settlement. The commissioner's staff are authorized to attempt mediation of all matters before they are referred to the commissioner." >From the Office of the Information & Privacy Commissioner policies and procedures.

 Commissioner David Flaherty's authorization to hand off complaints to his staff have left many in the media asking the questions: Who is the commissioner's office working for? What interest - information or privacy - are the Commissioner's portfolio officers trying to represent? Upon denial of an information request to a public body, applicants are increasingly advised by portfolio officers to trim, reorganize or abandon their access requests altogether. In the very least they are discouraged from seeking an inquiry.

This has served to create an adversarial atmosphere between journalist and bureaucrat. After experiencing the process, many BCJC members have voiced concern that portfolio officers seem to be working in the interest of the very public body that denied them access to information in the first place.

BCJC has found the Commissioner's officials too often adjudicate for privacy, not for freedom of information. Journalists’ faith in the current system have been sorely tested; they believe the commissioner's office is working against, rather than for them.

After following the four-step process to access information, and after not receiving the information requested, applicants find they have no where left to turn for help except, ultimately, to the courts. That is, of course, if they haven't already withdrawn their request for reasons of frustration.

BCJC wants the provincial government to recognize that this problem exists within the Commissioner's office.

It is at this point where BCJC members believe constructive criticism of the application/appeals process is warranted. A simple solution to the problem would be to appoint two commissioners - one for information; the other for privacy. However, BCJC realizes this scenario would be expensive and is fraught with bureaucratic duplication.

Here is our alternative suggestion. As it exists now, the request for information process is as follows:

          a) Application

          b) Review/Mediation

          c) Inquiry

          d) Judicial Review

BCJC would like to see an additional step added:

          a) Application

          b) Review/Mediation

          c) Inquiry

          d) Lay Panel Review

          e) Judicial Review

BCJC suggests a panel of information and privacy lay people be struck to adjudicate decisions made by the Commissioner after the inquiry process is complete.

This third-party panel would in no way impede the commissioner's belief that mediated settlements be achieved. But it would give applicants comfort in knowing decisions reached by the commissioner and his staff would be put forth for independent scrutiny prior to embarking upon the judicial review process.

While the commissioner is impartial during the inquiry process (he knows no details of the request for review prior to the formal inquiry), BCJC questions the commissioner's willingness to make orders contrary to initial findings of his staff during review/mediation.

The review by lay panel would serve to scrutinize both the decisions made by the commissioner's staff (during review/mediation) as well as the

Commissioner himself (during inquiry). The lay panel would be struck on an as-needed basis and would provide a check to the commissioner's "balanced" inquiry findings.

As it exists now, an applicant's only method to challenge the Commissioner's inquiry findings is to take the application to judicial review - a form of appeal to the Supreme Court of B.C. that carries with it high legal costs for the applicants.

Between April 1, 1996 and March 31, 1997, according to the Information and Privacy Commissioner's annual report, 1,758 cases were handled by the commissioner's office. Just four of Commissioner Flaherty's eventual orders (decisions struck via inquiry) were taken to judicial review out of the 933 requests for information that were taken to step B, the review/mediation process.

But BCJC argues the low number of judicial reviews can't be seen as an indication that the Office of the Information and Privacy Commissioner is functioning effectively. Rather, it may be an indication that applicants are withdrawing their requests mid-process for a variety of reasons, including: a) Frustration, b) Fee impediments, c) The realization that legal costs incurred to mount a judicial review would outstrip the value of information obtained.

The FOIPP Act was introduced five-years ago and must be applauded for its intent to make all levels of government more open and accountable. But now some fine tuning of the Act must take place.

The introduction of a lay person review panel to serve as a further watchdog to the Commissioner's orders would not make greater his public accountability, but would further serve to allay journalists' concerns that the act has just served to make public information less obtainable.

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Public-Private Partnerships and Public Sector Restructuring

Governments continue to look for ways of reducing their cost of administering programs and projects. One of the most common ways now is to open those areas to public-private partnerships.

This may be an example of good government, but it also offers a problem in relation to public information rights.

In some cases, governments look to improving efficiency by transferring some services to the public sector. The privatization of BC Online is one such example where public right of access to information may be undermined.

Elsewhere in this brief the committee will find BCJC’s response to suggestions by the Information, Science and Technology Agency that the exemptions for third party business information be broadened. Suffice to say we oppose such measures.

However, we are also concerned that as the government looks for new ways to reduce its exposure on public projects, it will also trade away or restrict the public’s ability to scrutinize such arrangements.

BCJC recommends that the government clearly indicate that public-private partnerships and publicly-funded services transferred to private organizations are subject to the FOIPP Act.

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Comments on the Information, Science and Technology Agency’s Corporate Submission Project

What follows is BCJC’s rebuttal to the brief prepared by government for the legislative committee. Top

I.                  Balance Between Access to Information and Potential Harm Issues

A.   Third Party Business Information:

BCJC does not support the CSP recommendation to broaden the exceptions for the release of third party business information. BCJC’s belief is that the CSP has the issue backwards. Instead of making such material harder to release, the government should apply a harms test for why the information should not be released.

BCJC’s concern is that given the official adversarialism that exists now, this proposal will allow a public body to further prevent the release of information the public could reasonably expect to be given to understand the relationship between a business and a public body. While we agree there may at times be valid reasons for not disclosing third-party information (ie, sensitive marketing and proprietary information), it is important the government also protect the public’s right to know how a business relationship exists with a public body.

As an example, one might conclude from the CSP report, that investigations of a third party by government may be suppressed under the explanation that release of the material might harm the party’s interests, even if it doesn’t do business with the government.

The Act already contemplates and makes allowances for material to be exempted from disclosure on the basis it could harm a third-party’s interests. BCJC believes no further changes should be made.

2. Audit Working Papers

BCJC takes no position on this subject, other than to suggest the government may be attempting to stifle release of documents that differ from final sanitized versions. Our only concern is that the recommended amendment should not be used as a means to frustrate or prevent the release of internal audits or other examinations of government dealings. The period for which time-limited exception from disclosure should exist must be made relatively short, so as to ensure the public body completes the audit and does not use the concept that it these are “working papers” only to prevent the release of potentially embarrassing material.

3. Labour Relations

BCJC raises a concern here that a blanket exception preventing the disclosure of labour relations information denies the public the ability to scrutinize how public bodies and their unions arrange collective agreements. BCJC recognizes as valid the CSP’s concern that premature release of management plans and bargaining positions may unfairly influence or interfere with the natural process of collective bargaining.

However, we also believe that the processes by which such agreements have taken place should be opened to the public for scrutiny once those relations are complete. Therefore, we would suggest the government limit disclosure of information that might harm government’s  relations with the bargaining agents of its employees to the negotiating period alone. Once a collective agreement is signed, access to information should be allowed within the normal context of the Act.

4. Investigations

BCJC does not support the CSP recommendation that the act be amended to define “law enforcement in Schedule 1 to state explicitly that law enforcement includes investigations that may lead to a penalty or sanction being imposed by the investigating body or another public body” (our emphasis).

BCJC believes the government may be attempting to restrict the flow of information that may be embarrassing to it and others, but which does not truly harm a law enforcement or related matter. We believe the Information and Privacy Commissioner is correct in Order 193 – 1997.

It is important for the committee, and the government, to realize that investigations offer the public one of the most important ways of scrutinizing – and having confidence in – the government’s handling of public issues. Without the ability to examine the criteria under which an investigation is launched, conducted and completed, the public may be left with a lack of confidence in the process. While we fully understand that the release of information in some cases could reasonably be expected to harm a law enforcement matter, it is equally important that those reasons for denial be based on empirical evidence and a valid belief that such harm would take place. The Act currently provides the remedies the government needs to ensure that is the case.

The CSP uses the example that a board conducting investigations of compliance with environmental legislation may have to release material that has been used by a ministry or self-governing professional body to impose penalties. It suggests such an event could harm future investigations conducted by the board.

But perhaps a better example exists of what would happen if the CSP recommendation is accepted: the board would refuse to release to the public any information about any investigation, even if no ministry or self-governing body were to be interested. It would become a de facto practice that information about any investigation, regardless of importance to the public, would be denied on the basis that it may interfere with other agencies’ interests, regardless of whether those interests exist or not.

II. Balance Between Access to Information and Cost Issues

A.    Problematic Requests .

The CSP proposals to allow broader definitions for grounds on which to have someone declared a “frivolous” or “vexatious” requester appear predicated on the belief that the government has the right to determine who has a right to information. There is no doubt that some people seek to use the Act as a weapon against a public body or a ministry.

But BCJC is concerned that the CSP’s proposal to broaden the definition and allow the “authority to disregard some requests that unreasonably interfere with the public body’s ability to respond to other applicants in a timely manner,”  will permit agencies to dismiss requesters who may not be bent upon abusing the system, but rather are simply frequent requesters.

For example, if a journalist who specializes in FOI issues frequently submits requests to a ministry on a variety of issues, all in the public interest, should that agency have the ability to have the person declared a frivolous, vexatious, systematic or repetitious  requester? The CSP proposal seems bent on applying the approach of killing a fly with a hammer.

Section 43 is an extraordinarily powerful section, and it requires extraordinarily careful use. It should not be broadened. If a requester is being troublesome, the Information and Privacy Commissioner already has the power to stop such abuse and has used that power effectively in the past.

Consequently, BCJC also does not support the proposal to amend the Act to allow a public body to stop working on requests while the commissioner considers an application under Section 43.

What happens if the commissioner does not agree with a public body’s request to disregard further requests? A significant time delay in processing the request will have taken place. If the agency believes there is an issue of urgency, BCJC is confident that the commissioner will entertain submissions on an expedited basis.

B: Duty of applicants

The CSP report appears to want to introduce new ways of frustrating the obtaining of government information. Under the Act, the public body already has a duty to assist the requester. The CSP notes that there is no requirement for the requester to assist the government. But BCJC wonders if this is not simply an attempt to find another way of disallowing a request that the public body may not wish to fulfill.

The Act has become so difficult and convoluted to use that it is not surprising if many people submit requests that the guardians of our information deem poorly defined. The government does not have an education program designed to assist people in how to frame requests, and it does not appear to offer suggestions on what the most common kinds of errors people make when submitting requests.

If the CSP recommendation is accepted, allowing public bodies to decide what is not a sufficiently-detailed request, and to ignore requests until the detail is provided, BCJC suspects there will be an astronomical increase in the delays people face in getting information.

If the public body believes that it does not have enough information to begin fulfilling the request, it has an duty to assist the applicant. That assistance should not be limited to simply making a best effort to locate records. FOI coordinators, it can be argued, have a far better working knowledge of the act than the average requester, and they understand what kinds of records the government keeps. Many requesters don’t. The public can telephone the person for clarification. It can send messages by email and fax. Many ministries and agencies now make that effort to contact the applicant when there is a discrepancy or misunderstanding.

Rather than allow public bodies to arbitrarily decide what constitutes an adequately-defined request, BCJC strongly recommends the government embark on an education program designed to inform people how to use the Act efficiently.

C: Time Limits

BCJC does not support the CSP recommendation that the Act be amended to define “days” as “working days.” The government already fails to meet the requirements of the Act on nearly one out of every two requests it receives.

On the face of it, it may seem contradictory for BCJC to suggest the government not be allowed more time to respond to requests. However, the Act has built into it allowances for when an agency cannot meet the mandated deadline.

The number one reason for delays does not appear to be the unreasonableness of requesters, as the CSP report appears to allude, but to the fact the government has under-funded the FOI system.

This statement is backed up in a study by Professor Alisdair Roberts of Queens University (“Limited Access: Assessing The Health of Canada’s Freedom of Information Laws”, April, 1998) which points out that between 1995 and 1997, the proportion of requests filled by agencies within the 30-day time limit declined from 55 per cent to 34 per cent.

The dismal ability of the government to meet its own obligations under the Act was also noted by the Information and Privacy Commissioner on April 7, 1998, when he complained that new cuts to FOI budgets would lead to the erosion of “open and accountable government.”

What will the government do when it can’t even meet the time limits under an amended version of 30 “working days”? Extend it to 45, 60, 90? At what point should the public be made to suffer for the government’s inability to efficiently administer the Act?

There is an important fundamental at stake here: if the government continues to chip away at the Act by starving it of resources, and by frustrating the successful release of information, the public will be denied its right of reasonable access, and will lose confidence in the government.

 BCJC believes that the government should re-evaluate the effectiveness of the FOI system in each public body, and commit the resources necessary to effectively comply with the Act.

 D: Concurrent Processes

BCJC does not take any position on this issue except to note that the Act at this point does not discriminate among classes of requesters; ie, whether someone works for the government or is involved in civil litigation.

We are concerned that amending the Act to give public bodies the ability to withhold records that would be disclosed in an adversarial process could give the government the unintended ability to deny access to information on the basis it may be subject adversarial processes in the future. We also point out that under litigation the government would be obliged to provide material to the applicant than would normally be denied in an application under the Act.

If the government is intent upon accepting the CSP’s recommendation, we would suggest strict limitations be placed on what constitutes an adversarial process, and the government should reinforce its view that this amendment is not intended to deny information to people who are not a party to that process.

 E: Regularly scheduled releases of routine information

While BCJC argues elsewhere in this submission for the need to make more routinely releasable information available as a means of lessening the cost of FOI, is concerned that the CSP recommendation is unwarranted.

ISTA wants the government to allow public bodies to “withhold, in response to a freedom of information request, information which will disclosed in a regularly-scheduled release within 90 days” The Act currently provides for a time frame of 60 days. Extending this by another 30 days may have the unintended effect of denying the public information in a timely and expedient manner.

The CSP cites the example of a Ministry of Health bi-annual report on waiting lists for surgery, treatment and diagnostic services. It suggests some statistics can be meaningless if released in advance of the report without the proper context.

BCJC recognizes the government’s concern, but is worried that adoption of this recommendation will allow public bodies to refuse to release some types of information because of fears they may be taken out of context or misunderstood.

For example, is the government suggesting that it should not release information on waiting lists or treatment services in a request from a member of the media, simply because those statistics may also used in a bi-annual report by the ministry?

It is important that the government recognize the public’s need for timely information and not adopt a proposal that may have the unintended effect of shutting off the flow of information to media outlets, who act in the public interest.

 

III Privacy Issues 

A.    Indirect Collection of Personal Information.

BCJC takes no position on the CSP recommendation to amend the Act to allow for the indirect collection of personal information in emergency cases of health and safety.

B: Disclosure of Personal Information

BCJC supports the CSP recommendation that the Act be amended to add selected criteria for the disclosure of personal information under the privacy part of the Act, as it relates to release of material outside the formal request process.

We encourage the government to attempt to unfetter the routine workings of government from the Act, and to promote the provision of routinely-releasable material without the necessity of a formal request.

BCJC takes no position on the proposal to amend the Act to facilitate the exchange of personal information between public bodies where disclosure is necessary for employees to perform their job functions.

However, we note that this issue, which involves the use of data-matching, is an emerging area of interest for privacy advocates and the Information and Privacy Commissioner.  

IV Review Mechanism Issues

A.    Transparency in Independent Review Processes of the Office of the Information and Privacy Commissioner

BCJC supports the recommendation that the commissioner establish and make available manuals and other material regarding the review, complaint and investigation processes used by the OIPC.

We also believe the government needs to offer more lay educational material to the public on how to use the Act in the first place. Such public service may help to reduce the number of disagreements that end up being refereed by the commissioner, and thereby reduce the cost of administering the FOI Act.

B: Adjudicators

BCJC takes no position on the recommendation that the provincial court be the court from which an adjudicator is appointed, other than to note it argues elsewhere in this submission for the need for a lay panel to review appeals and orders made by the Information and Privacy Commissioner.

Members of BCJC

http://www.opengovernmentcanada.org/bcjc

Canadian Association of Journalists
St. Patrick's Building, Carleton University
Ottawa, Ontario 

B.C. Chapter President:

Trudi Beutel


B.C. & Yukon Community Newspapers Association
230-1380 Burrard Street
Vancouver, B.C., V6Z 2B7


B.C. Newspaper Foundation
Suite 105-1670 West 8th. Ave.,
Vancouver,B.C. V6J 1V4


British Columbia Press Council
#900-1281 West Georgia St.
Vancouver, BC V6E 3J7
Tel/Fax: (604) 683-2571
Bill Bachop - Executive Director

FIPA
#103 - 2092 W. 2nd. Ave.,
Vancouver, B.C. V6J 1J4

Jonathan Hodes
Chen & Leung Law Firm
Ste. 728, 650 W. 41
st Ave.,
Vancouver, B.C.
 
Roger McConchie
Ladner Downs Law Firm
1200 Waterfront Centre, 200 Burrard Street
Vancouver, B.C., V7X 1T2

David Sutherland
David F. Sutherland Law Firm
Vancouver, B.C.

Jeff Lee (Chair of BCJC)
Reporter, The Vancouver Sun
Ste. #1, 200 Granville Street,
Vancouver, B.C. V6C 3N3
 


Steven Carlman
Owner, Pragma Publishing Ltd.
1816 Mast Tower Rd,
Vancouver, B.C.

George Garrett
Investigative Reporter, CKNW Radio,
Vancouver, B.C.
 
Kelly McClughan
Reporter, CBC Television News,
Vancouver, B.C.
Ph: (604)662-6818


Gerry Porter
Journalism Instructor
Langara Community College

Vancouver, B.C.

 

Jan Lee-Thiem
Freelance writer and researcher
Look Back Publishing Enterprises,
Box 507, Lytton, B.C.
 
Joey Thompson
Columnist, Vancouver Province
2250 Granville St.
Vancouver, B.C. V6H 3G2

 

Stanley Tromp
Freelance writer
Vancouver, B.C.

 

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