In Defense of Truth

The last couple of weeks have seen question period in the BC Legislature occupied by the allegations of a whistle-blower accusing the Minister of Citizens’ Services, Jinny Sims, of wrongdoings that include circumventing the freedom of information laws that she oversees.

Compounding this issue are two things: The first is that Jinny Sims apologized only one year ago after admitting to similar infractions of freedom of information laws; the second is her claim that BC now has a positive duty to document.

What follows is examination of the issues at hand, of statements made by MLAs in the Legislature, and of statements made by previous Information and Privacy Commissioners.

Ultimately, this examination is intended to present a path towards the truth.

What is a Duty to Document?

A duty to document is the inclusion of provisions within provincial legislation that compels government to keep records of their decision making process in order to encourage government accountability and facilitate transparency.

The creation of a duty to document would go some distance to counteract past political scandals, like the triple-delete incident that occurred under the previous BC Liberal government.

After that scandal, the BC Liberals introduced Bill 6, which would enshrine a duty to document within the Information Management Act (IMA). The NDP referred to this as a “pre-election PR exercise” at the time.

In the second episode of our podcast, Data Subjects, we go over in detail the difference between adding a positive duty to document government decisions in the IMA or in the Freedom of Information and Protection of Privacy Act (FIPPA).

Despite the NDP’s initial contempt for the Bill 6, they ultimately moved forward with the bill with some amendments. They now celebrate the inclusion of a duty to document within the IMA.

However, the inclusion of the duty to document within the IMA as it currently stands is not sufficient to create any real change. The IMA doesn’t contain any significant penalties for non-compliance and won’t provide greater government accountability.

Ultimately, the inclusion of the duty to document in the IMA gives oversight power to the Minister of Citizens’ Services. Whereas, if the duty to document were to be added to the Freedom of Information and Protection of Privacy Act, independent oversight would be provided by the Office of the Information and Privacy Commissioner.

All this can be a bit confusing. Even Attorney General David Eby is confused about who has jurisdiction to investigate the very serious allegations raised by the whistle-blower.

In the Legislature, he stood up and called on the BC Information and Privacy Commissioner Michael McEvoy to investigate:

But, according to Commissioner McEvoy, only the Minister herself has the power to investigate the claims that are being levied against her:

When Minister Jinny Sims stands in the BC Legislature and says that the allegations against her unfounded, she is absolutely correct. And that’s exactly the problem. The only person empowered to investigate these kinds of claims is the Minister herself.

How do we defend the truth?

In instances where the truth has been conveniently misrepresented, it’s important for everyone, in an age of disinformation and alternative facts, to ask questions.

On May 29, 2019, Minister Jinny Sims stood in the BC Legislature and said that the legislative amendments to the IMA: “Respond directly to the recommendations that came from the former BC Information and Privacy Commissioners David Loukidelis and Elizabeth Denham.”

However, Elizabeth Denham has said on the record multiple times that she recommends including a duty to document in the FIPPA and not the IMA.

Here’s what she said to the all-party Special Committee of the BC Legislature that reviewed FIPPA in 2016:

Here’s a link to the full report produced by the Special Committee. Ultimately, they made this recommendation to government:

Perhaps, this is the source of Attorney General David Eby’s confusion, as he was a member of the all-party Special Committee that made this recommendation to include the duty to document in the FIPPA.

A recommendation that, ultimately, his NDP government decided to ignore.

In addition to her statements made to the Special Committee, Elizabeth Denham has stated her recommendation for the inclusion of a duty to document within the FIPPA in the report outlining her office’s investigation into the triple-delete scandal.

In that report, she made this recommendation:

Presented above are two pieces of evidence that clearly state former Information and Privacy Commissioner Elizabeth Denham’s recommendation that the duty to document should be included in the FIPPA and not the IMA.

How do we return to the truth?

Ultimately, the evidence is unequivocal; these two pieces of evidence explicitly state Elizabeth Denham’s recommendation to include the duty to document within the FIPPA.

Words have power. When statements are made, intentionally or unintentionally, they need to be supported with evidence. The evidence here suggests that Minister Sims has misrepresented the truth in her statements in the BC Legislature.

An acknowledgement of this mistake would be a good start. Furthering this, would be an official recognition of the fact that BC does not have a positive duty to document that ensures government accountability and facilitates transparency.

Logically following this, would be an acknowledgement of the hypocrisy of an acting Minister investigating her own alleged misconduct.

But the only thing that will truly bring us in line with some semblance of the truth, would be the actual creation of a positive duty to document.

Data Subjects: Policing Info World conference

In this special edition episode of our Data Subjects podcast, we revisit our Policing Info World conference. On May 23, 2019, we co-hosted a conference that explored the data behind crime, law enforcement, and surveillance. Along with department of criminology at Kwantlen Polytechnic University and the BC Civil Liberties Association, we heard from experts in law enforcement, academia, and the legal profession.

As this was a full-day conference, this episode is very long. Please see the show notes below to find the time codes and descriptions for specific panels and panelists.

This conference wouldn’t have been possible without the support of our sponsors: CUPE BC, News Media Canada, and Web exPress.

Show Notes

00:02:15Opening Remarks
00:07:49Panel 1: Data and New 
Surveillance Modes and 
Capacities
00:08:17Moderator: Mike Larsen 
(Professor and Co-Chair, 
Department of Criminology, 
Kwantlen Polytechnic 
University, FIPA 
President)
00:10:00Michelle Davey 
(Superintendent, 
Investigative Support Services, 
Vancouver Department)
00:28:00Dr. Wade Deisman (Associate 
Dean, Faculty of Arts, Kwantlen 
Polytechnic University)
00:50:10Josh Paterson (Executive Director, BC Civil Liberties Association)
01:08:38Questions
01:46:00Panel 2: Data and Predictive 
Policing
01:46:30Moderator: Dr. Carroll Boydell 
(Instructor,Department of 
Criminology, Kwantlen 
Polytechnic University)
01:48:02Ryan Prox (S/Constable, Crime 
Analytics Advisory & 
Development Unit, Vancouver
Police Department)
01:48:27Mike Larsen (Professor, 
Department of Criminology, 
Kwantlen Polytechnic 
University)
02:13:00Panel 3: Data and Bias-Free 
Policing
02:13:16Moderator: Sara Neuert 
(Executive Director, BC Freedom 
of Information and Privacy 
Association)
02:14:43Dylan Mazur (Community Lawyer, 
BC Civil Liberties Association)
02:31:36Michelle A. Cameron (Advisor /
Investigator, the University of 
British Columbia)
02:40:01Questions
03:27:09Panel 4: Data and the Border
03:27:24Moderator: Mark Hosak (Director 
of Community Engagement, BC 
Civil Association)
03:29:19Peter Edelmann (Immigration 
Lawyer, Edelmann and Company 
Law Offices)
03:58:41Meghan McDermott (Staff 
Counsel, BC Civil Liberties 
Association)
04:27:26Questions

FIPA’s Annual General Meeting for 2019

Join us on June 27, 2019 for our 2019 Annual General Meeting. The meeting will take place at the Vancouver Public Library’s Central Branch (350 W Georgia St.) in the Alma VanDusen Room at 6:30 PM.

We’re excited to welcome Bryan Carney from The Tyee as the guest speaker. His reporting covers freedom of information and privacy, including stories about Facebook’s “sniper-targeting”, an RCMP social media monitoring program, and the Royal Bank of Canada’s alleged ability to read private social media messages.

Please RSVP to fipa@fipa.bc.ca in order to confirm your attendance. Light refreshments will be served.

Whistleblower Accusations Highlight Need for Legislative Reform

Vancouver, May 17, 2019 – Question period in the BC Legislature this week has been occupied by the accusations of a whistleblower who claims that the Minister of Citizens’ Services, Jinny Sims, has been using her personal email address to conduct government business in order to circumvent Freedom of Information laws.

This is particularly troublesome as Minister Sims oversees the administration of those very laws and made a public apology only one year ago for a similar indiscretion.

During question period this week, Attorney General David Eby stated that the Office of the Information and Privacy (OIPC) Commissioner was the correct place to investigate accusations of this nature.

However, a statement today from the OIPC indicates that they are unable to investigate these claims.

“The Minister’s alleged failure to fulfill her duty to document is not a matter under my authority,” writes Commissioner Michael McEvoy of the OIPC. “This is a significant shortcoming of the Freedom of Information and Protection of Privacy Act (FIPPA).”

Legislative changes that recently came into effect, which Minister Sims characterized as a duty to document, give Minister Sims—not the OIPC—the authority to ensure compliance.

“As it now stands, the Information Management Act designates the Minister herself as primarily responsible for ensuring her Ministry’s compliance with the duty to document decisions,” writes Commissioner McEvoy. “Citizens would find it very surprising that, on its face, the current law makes a Minister responsible for investigating her own conduct.”

The BC Freedom of Information and Privacy Association (FIPA) supports the Commissioner’s call for government to keep its promise of reforming FIPPA to include a duty to document that provides independent oversight so that citizens can be assured that government is accountable.

“John Horgan has promised FIPPA reform. He has promised that his government will do better,” says Sara Neuert, FIPA’s Executive Director. “The citizens of British Columbia need him to keep that promise. Including the duty to document in the FIPPA will build public trust by providing independent oversight.”

“The accusations of the whistleblower demonstrate that this isn’t happening fast enough and that we require timelines to ensure that John Horgan is keeping his promise. The time for action is now.” says Neuert.

Contact:

Sara Neuert, Executive Director

BC Freedom of Information and Privacy Association

Email: fipa (at) fipa.bc.ca

Phone: 604-739-9788

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