BC’s ‘Open Government’ refuses to close information laundering loophole in FOI law [Updated Oct. 25, 2011]

CORPORATE SUBSIDIARIES OF PUBLIC BODIES NOW BEYOND THE LAW

Edit: See October 25, 2011 update below.

A decision by the Information and Privacy Commissioner’s Office last week confirms that BC universities and other public bodies can create independent companies whose records are beyond the reach of the province’s freedom of information law.

And even though the government is currently pushing amendments to the Freedom of Information and Protection of Privacy Act (FOIPPA) through the Legislature, they are deliberately ignoring a recommendation to bring these subsidiaries under FOIPPA made by a Special Committee that reviewed the Act in 2010. {See Recommendation no. 4)

“The Commissioner’s order reflects an unfortunate court decision and highlights the need for an amendment to the FOI law to close this loophole,” said FIPA Executive Director Vincent Gogolek. “The alternative is a huge loss of accountability and the creation of a black hole for records that public bodies want to escape public view.”

Full version of news release

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Commissioner’s order

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UPDATE October 25, 2011

BC GOVERNMENT MAY TAKE ACTION TO EXTEND FOI COVERAGE TO CORPORATE SUBSIDIARIES OF PUBLIC BODIES

Margaret McDiarmid, BC’s Minister of Labour, Citizens’ Services and Open Government has stated in the Legislature that the government will be working with the Information and Privacy Commissioner to address an interpretation of the province’s FOI law that has allowed corporate subsidiaries of public bodies to escape the reach of the act.

The Freedom of Information and Protection of Privacy Act applies to all government bodies and defines “local government body” to include “…any board, committee, commission, panel, agency or corporation that is created or owned by a body referred to in paragraphs (a) to (m) and all the members or officers of which are appointed or chosen by or under the authority of that body.”

However, a recent BC Supreme Court Decision threw the FOI coverage of subsidiaries into question, and now clarification can only come from an amendment to the act.

FIPA recently learned that the Commissioner requested a resolution of this problem in a letter to the Minister on October 20. The minister responded during committee debate in the Legislature, stating, “[T]here are other areas of the act that would have to be amended before the subsidiaries could be included…this issue did just come to our attention through the court ruling as well as through correspondence from the Information and Privacy Commissioner about a week ago.

“We certainly have the intention of working with her and looking to address it, but it would require consultation and would require a number of sections of the act to be different…The initial conversation is already starting with the commissioner, and we’re going to work in this area.”

FIPA welcomes this development. We hope that the government sticks to its guns when public bodies who wish to avoid transparency in their corporate dealings start their inevitable lobbying efforts.

Commissioner’s letter to the Minister.