The B.C. Journalists Committee for Freedom of Information
Committee of the Legislative Assembly
Review of the Freedom of Information and Protection of Privacy Act
by Jeff Lee, Chair
The Culture of Official Adversarialism
Media use of the Act
Cost of Administering the Act
The Issue of Fees and Waivers for Fees
The Increased Use of Time Delays
Use of Notwithstanding Clauses
The Need for Penalties
The Need for Sunshine Legislation
Facing Freelance Writers and Researchers
The Need for a Lay Panel to Review Commissioner’s Orders
Public-Private Partnerships and Public Sector
Comments on ISTA’s Corporate Submission Project
Members of BCJC
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.
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
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.
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
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
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 Record, is a quantitative as well as qualitative example of the
tangible benefits the FOIPP Act provides to British Columbians.
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.
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.
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
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.
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.
has also been offered recommendations from government ministries and public
bodies that, if accepted, would severely damage the Act.
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.
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.
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
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
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.
that vein, our recommendations look to future needs of the province, and we
offer them in a spirit of cooperation, not antagonism.
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.
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.
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.
frequently find demands for routine information are met with the response “Put
it in writing as a formal request.”
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.
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.
he asked ISTA for a copy of the statistics, he was told to make an application
under the Act.
what an official of the agency responsible for administering the FOIPP Act
told Legislative Assembly on Nov. 19, 1997 about how informal requests
“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 . . .”
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.
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.
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
it misdirected ministries and crown agencies on the issue of statistics, and
refused to give the newspaper information breaking down complaints by ministry.
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.
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
Media Use of the Act
is important for the legislative committee and the government to understand how
often the media use the Act in comparison to other requesters.
to ISTA’s request tracking system, media requests accounted for about 4.5 per
cent of all requests filed each year.
Note: Classification is done using information
volunteered by the applicant
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.
the fact remains that the government appears convinced that the media are
largely responsible for driving up the cost of administering the Act.
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.”
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.
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.
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.
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
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.
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.
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
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:
Relax the need for line-by-line examination of documents that clearly do
not pose privacy concerns.
Make more readily available information that can be routinely released.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
of the questions FOI coordinators were supposed to ask of themselves in
considering a fee waiver:
the request about a specific definable issue (as opposed to a broad general
the public be affected by this issue”
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.)”
the applicant have the ability to ensure that the public interest concerns will
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.
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.
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.
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.
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.
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).
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.
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.
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.”
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
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.
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.
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.
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.
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
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
public has long been promised “open and honest” government in British
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.
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.
on the issue of open meetings, such as those held by municipal councils, the Act
is significantly silent.
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
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.
need only look at how a single municipality has regarded the public’s right to
know how it conducts the public business.
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
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.
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.
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.
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.
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
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.
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”
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.
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.
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
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.
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
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."
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.
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
Alternatives to increasing such costs include:
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.")
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.
Encourage public bodies to settle fee waiver
requests and other problems themselves, rather than allowing it to go on to the
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.
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.
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.
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.
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.
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.
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.
wants the provincial government to recognize that this problem exists within the
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
is our alternative suggestion. As it exists now, the request for information
process is as follows:
d) Judicial Review
would like to see an additional step added:
d) Lay Panel Review
e) Judicial Review
suggests a panel of information and privacy lay people be struck to adjudicate
decisions made by the Commissioner after the inquiry process is complete.
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.
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.
review by lay panel would serve to scrutinize both the decisions made by the
commissioner's staff (during review/mediation) as well as the
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
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
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.
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.
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.
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.
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
may be an example of good government, but it also offers a problem in relation
to public information rights.
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.
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.
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.
recommends that the government clearly indicate that public-private partnerships
and publicly-funded services transferred to private organizations are subject to
the FOIPP Act.
on the Information, Science and Technology Agency’s Corporate Submission
follows is BCJC’s rebuttal to the brief prepared by government for the
Between Access to Information and Potential Harm Issues
Party Business Information:
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
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.
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.
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
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
3. Labour Relations
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.
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.
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”
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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?
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
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.
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.
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
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.
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.
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.
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.
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
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
Indirect Collection of Personal Information.
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
B: Disclosure of Personal Information
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.
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.
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.
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
Transparency in Independent Review Processes of the Office of the
Information and Privacy Commissioner
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.
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.
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
Canadian Association of
B.C. Chapter President:
Jeff Lee (Chair of BCJC)