FIPA has joined with a York University professor and the Canadian Association of University Teachers in a legal battle for access to the records of corporations created by universities in BC. The issue is currently under review by BC Information and Privacy Commissioner David Loukidelis.
Universities in BC are covered by the Freedom of Information act, but the province’s three largest universities have argued that the public shouldn’t have access to records concerning SFU’s spin-off companies. The Canadian Association of University Teachers and FIPA have argued in favour of the release of these records. FIPA was represented before the Commissioner by Dan Burnett, a leading media lawyer with the Owen Bird law firm.
The dispute centers around a freedom-of-information request to SFU, which was filed by David Noble, a professor at York University. Noble, a critic of the corporate influence on universities, sought information in February 2004 from SFU’s University/Industry Liaison Office (UILO) on companies spun off from SFU research.
According to Noble’s submission to Loukidelis, SFU confirmed in October 2004 that it had located records in the UILO, which is on SFU’s Burnaby campus. A year later, however, SFU took a different position, arguing that the records “are not in the custody or control of the university”.
SFU claimed that the records were in the sole control and custody of “Simon Fraser University Ventures”, an SFU-owned company that holds shares in spinoff companies. Noble then asked Loukidelis to conduct an inquiry and issue a legally binding order on SFU to release the records.
SFU president Michael Stevenson’s submission to Loukidelis asserts that SFUV is not a “public body” under the province’s freedom-of-information law. As the shareholder of SFUV, Stevenson wrote, the university is entitled to receive financial statements and any auditor’s report. “SFU does not have general statutory right to access all records in the possession of SFUV,” he claimed.
UBC and UVic filed a joint submission supporting SFU’s position. “There is no democracy interest invoked where the public body is acting, outside of its statutory mandate to provide services to the public, as a service provider to a private company,” UBC and UVic’s lawyer, Lorene Novakowski, wrote in the submission. “Access to the records will not further the transparency principle of government as the public body is not engaged in activities that are directly related to the mandate of the public body.”
The Canadian Association of University Teachers (CAUT) intervened on Noble’s side, claiming that SFU should not be allowed to use its wholly owned company to deny public access to documents involving licensing deals. “SFU considers ‘that research is an essential component of the mission of Simon Fraser University and constitutes a major instructional activity as well’,” CAUT executive director James Turk wrote in his submission.
FIPA also intervened on Noble’s side, purporting that the universities’ position poses a “threat” to the purpose of the Freedom of Information and Protection of Privacy Act: “to make public bodies more accountable to the public”.
“Simply put, if Public Bodies can avoid the effect of the FOIPPA by using wholly owned or controlled subsidiary corporations as repositories of records, the effectiveness and purpose of the legislation will be severely impaired and the public accountability it provides will be lost,” wrote Dan Burnett in FIPA’s submission.
Thanks to Charlie Smith of the Georgia Straight for use of excerpts from his article, “Universities fight for corporate secrecy”
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