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LEGISLATIVE REVIEW OF BC'S FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT
January 18th, 2010 12:00am
.
A SPECIAL COMMITTEE OF THE BC LEGISLATURE COMPLETED
A REVIEW OF THE FREEDOM OF INFORMATION AND PROTECTION
OF PRIVACY ACT AND PROPOSED MAJOR REFORMS - WHAT'S NEXT?

BC’s Freedom of Information and Protection of Privacy Act requires
that a committee be struck every six years to review the Act and
report back to the Legislature regarding how well the legislation is
being implemented and whether the act should be revised.

A Special all-party Committee received submissions from the
public, held public hearings and submitted its report to the
Legislature on May 31, 2010.

For news of how the review process and the committee's final report
was received, scroll down to "SPECIAL COMMITTEE TO REVIEW
BC’S FREEDOM OF INFORMATION AND PRIVACY ACT HANDS DOWN
A 'GOOD, BAD AND UGLY' REPORT"

===================================

COMMITTEE WEBSITE: http://www.leg.bc.ca/foi/

COMMITTEE REPORT: Click Here

FIPA SUBMISSION TO THE COMMITTEE: Click Here

BC GOVERNMENT SUBMISSIONS:
Privacy: Click Here
Freedom of Information:Click Here

INFORMATION AND PRIVACY COMMISSIONER SUBMISSIONS:
Main submission Click Here
Reply Submission Click Here

ALL SUBMISSIONS Click Here

===================================

SPECIAL COMMITTEE TO REVIEW BC’S FREEDOM
OF INFORMATION AND PRIVACY ACT HANDS DOWN
A 'GOOD, BAD AND UGLY' REPORT

June 1, 2010

The unanimous report handed down by the Special Committee reviewing BC's Freedom of Information and Protection of Privacy Act Click Here has a lot of positive recommendations, but a few recommendations could be huge problems for FOI and privacy rights in this province.

First, the good stuff.

The committee has repeated a number of the recommendations of its 2004 predecessor. There are recommendations pushing public bodies to more routine disclosure, which will make information more widely available and reduce the need to use the FOI process. In some cases, time limits would be shortened, and a number of measures are proposed to streamline the processes of the Information and Privacy Commissioner’s office.

The committee has recommended closing what could be a huge loophole for educational institutions creating subsidiary companies to avoid FOI requests. This is very important as the courts have already ruled that records with a wholly owned subsidiary of Simon Fraser University are beyond the reach of FOI requests. It is important to have this loophole closed by legislation, rather than hoping the BC Court of Appeal will overturn the decision.

The committee has also accepted a recommendation from FIPA that the test for mandatory release of documents in the public interest under s.25 of the Act be relaxed to meet standards set down by the Supreme Court of Canada.

On the privacy side, there are also positive developments.

The committee ruled out amending the Act to allow storage of information outside Canada. The government pressed hard for this amendment, and FIPA is very pleased that the Committee has declined to recommendation it.

The Committee also recommended that the government hold public consultations on data sharing initiatives like the Integrated Case Management system (see FIPA report on the ICM and its dangers Click Here).

They also recommended an amendment to make privacy impact assessments (PIAs) mandatory at the "conceptual, design and implementation phases" of an electronic record project. (Case example: No PIA has ever been done of the Integrated Case Management Project, despite the Commissioner’s repeated requests over more than two years).

NOW THE BAD AND THE UGLY:

There are three recommendations in the committee's report that give FIPA serious concern.

First, the committee has failed to repeat the 2004 recommendation of the previous review committee to close the ever-widening loophole that allows the government to withhold 'advice or recommendations'.

As a result of a 2002 BC Court of Appeal decision that misinterpreted section 13 of the act, this province now has the widest possible scope for preventing disclosure of information that the government says is advice or recommendations. The government has repeatedly taken advantage of this, and this has gone so far that FIPA is now waiting for a court decision on whether submissions to a CONSULTATION PROCESS are considered 'advice' for the purpose of s.13 of the Act.

FIPA is disappointed that the committee declined to keep pressure on the government to bring in a desperately needed amendment to section 13.

Second, the committee has recommended making the "Legal Advice" exception, section 14 (which allows government to withhold information covered by solicitor-client privilege) mandatory, meaning a public body MUST withhold information that falls under this heading.

This alone would make the legal advice exception more restrictive, but the committee didn’t stop there. They also recommended that the application of the exception may only be ruled upon by the Supreme Court of BC instead of the Information and Privacy Commissioner.

The committee report did not cite a single case where the current system resulted in improper release of privileged documents. They also do not say how this amendment would actually work in practice. Would every s.14 claim by government go before a judge, or just requests where the applicant contests the government's claim? Would the Commissioner have to wait for the court to rule before dealing with other exceptions, or would the court wait for the Commissioner? One thing is certain, this recommendation would make the system more complicated, slower and more costly.

COMMITTEE ACCEPTS UNPRECEDENTED ASSAULT ON PRIVACY RIGHTS

The committee recommended instituting a system of 'consent' for the collection, use and disclosure of personal information by a public body. This means that people could be asked to consent to uses of their personal information that are not otherwise allowed by the act - basically waiving their privacy rights.

This was a recommendation pushed by the government during hearings. Some members of the committee noted that the concept of consent in the government context is essentially meaningless. Unlike the private sector, where there may be other companies willing and able to provide goods or services if you don’t like a company’s privacy policy, there is no where else to go for government services if you refuse to consent.

The government’s submission to the committee Click Here was a real surprise: it amounts to a petition for sweeping and revolutionary changes to most of the privacy protections in the FOIPP Act. If its recommendations are adopted by government, there would be virtually unrestricted collection, use and disclosure of personal information of citizens by the provincial government. A massive central data base of all information collected about citizens would be created and that information would flow wherever government wishes. Information would be collected from non-governmental agencies as well, and shared with other levels of government, police and any agency which is considered to be a ‘partner’ of the government.

Now that the committee’s report has gone to the Legislature, it is up to the government to decide whether or not to take action on its recommendations. As the Legislature may not be back until 2011, they should have plenty of time to consider what to do about amending the Freedom of Information and Protection of Privacy Act.

The report is available at Click Here

MORE COVERAGE:

B.C. FOI committee recommends explicit right to electronic records
Chad Skelton, Vancouver Sun Click Here

The non-recommendations were the big news
Vaughn Palmer, Vancouver Sun Click Here


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