BC Freedom of Information and Privacy Association
Your Data Your Rights
Bill 9 Questions for the Bill’s Proponents
The BC Government introduced Bill 9 – The Freedom of Information and Protection of Privacy Amendment Act – on February 26. FIPA’s initial response to the bill outlined a number of serious concerns. These concerns are attached to some unanswered questions about Bill 9. FIPA cannot jump into the meetings of the BC Legislature to pose these questions, but we can share them and encourage those who can raise them in the Legislature to do so. Bill 9 impacts the freedom of information and privacy rights of British Columbians, and the public deserves a full and informed discussion of the proposed amendments and their implications.
Requirements for a written request
Clause 2 replaces Section 5(1)(a) of the FIPPA, which concerns the criteria that an applicant must meet in order to obtain access to a record. The specific wording deals with the requirements for a written request, which are changed:
From:
- (a)provides enough detail to enable an experienced employee of the public body, with a reasonable effort, to identify the record sought,
To:
- (a) in the opinion of the head of the public body, provides enough detail to enable an experienced employee of the public body, with a reasonable effort and in a reasonable amount of time, to identify the record sought.
Issue: This introduces considerable discretion on the part of the head of a public body to determine what constitutes ‘enough detail’, ‘reasonable effort’, and what a ‘reasonable amount of time’ constitutes. In essence, it introduces a layer of opinion and judgement that replaces the original wording (which was subject to interpretation and review by the OIPC, in cases of complaint).
Questions
- Does this revision weaken the access rights of requesters?
- Does it not create greater authority for public bodies to narrow the scope of ‘valid’ FOI requests?
- Doesn’t this create an unreasonably high standard for the request language used by members of the public by potentially equating the request needed to meet the needs and equivalent understanding of the experienced employee?
Power to authorize a public body to disregard a request
Clause 13 amends Section 43 of the FIPPA, which concerns the power to authorize a public body to disregard a request. Specifically, the current language about the features of a request that could trigger an application to disregard it would be changed:
From
- c)responding to the request would unreasonably interfere with the operations of the public body because the request
- (i)is excessively broad, or
- (ii)is repetitious or systematic.
To
- (c) responding to the request would unreasonably interfere with the operations of
- (i) the public body, or
- (ii) the government of British Columbia, or
- (d) the request is
- (i) an abuse of the right to make a request under section 5 or 29 because the request is repetitious or systematic, or
- (ii) excessively broad.
Issue: FOI applicants file requests with public bodies, which include BC Government Ministries and the Premier’s Office, in addition to a wide range of municipal governments and institutions. Requests are processed under the authority of the head of the public body in question. Provincially, the IAO unit coordinates responses to requests to Ministries. Applicants cannot file FOI requests to ‘the government of British Columbia’ as an entity. There is established precedent for disregarding requests that, inter alia, would unreasonably interfere with the operations of a public body – but this is the first time that we have seen broader reference to possible interference with the operations of the government of British Columbia.
Questions
- On what basis would the head of a public body seek permission from the Commissioner to disregard a request because it might interference with the operations of the government of British Columbia, as a whole?
- Why did the government see fit to include this provision?
- Are there examples of types of requests that might trigger the ‘interference with the operations of the government of British Columbia’ subsection?
- Why is BC introducing such a provision, when it is not found in other provincial FOI legislation?
Clarity and accessibility of records holdings
Bill 9 has been presented, in part, as a bill intended to improve the efficiency of the FIPPA. It extends the authority of public bodies to decide, in their opinion, what constitutes “enough detail” and “reasonable amount of time” when determining whether a request is valid.
Composing a focused, effective request generally requires that an applicant have a degree of understanding about the nature and types of information held by the public body. For some public bodies, this sort of guidance is available – and for others, the public body’s information holdings are a kind of ‘black box’.
The government has claimed that the Information Management Act creates a kind of duty to document, but the IMA does not apply to all public bodies covered by the FIPPA.
Issue: Bill 9 Fails to enshrine in FIPPA a duty to document that requires all public bodies to create and manage detailed records of decisions and actions.
Questions
- What steps is the government taking to ensure that public bodies maintain adequate records of decisions and follow approved information schedules, per the requirements of the Information Management Act?
- Why does Bill 9 not address gaps in information management or require public bodies to update and publish information schedules that would empower requesters to more accurately compose requests?
- Why does Bill 9 not enable or amend the powers of the Office of the Information and Privacy Commissioner to provide oversigth of the Information Management Act?
FIPPA reform recommendations unaddressed
Questions
Bill 9 Fails to address all-party support to expand FIPPA and improve accountability in the legislature by failing to “Extend freedom of information provisions to the administrative functions of the Legislative Assembly”.
- Why, after the legislature ‘wood splitter’ scandal and the subsequent joint recommendation by BC’s independent regulators, does Bill 9 not extend FIPPA to cover the administrative offices of the Legislative Assembly?
The Special Legislative Committee’s 2022 report, entitled FIPPA for the Future, listed 34 recommendations “to improve and modernize access to information and privacy rules in British Columbia’s public sector”. Bill 9 represents a failure to act on these recommendations,
- Why does Bill 9 ignore most of the work of the last Special Legislative Committee that reviewed the FIPPA (and the reviews conducted by previous committees)?
- Why, despite the report’s recommendations to engage in a “comprehensive review of the FIPPA to address the evolving relationship with Indigenous governing bodies as it pertains to the Declaration on the Rights of Indigenous Peoples Act”, does Bill 9 make no mention of the DRIPA or Indigenous information rights?
Missed opportunity: Data residency
Issue: The removal of data residency requirements from British Columbia’s Freedom of Information and Protection of Privacy Act (FIPPA) allowed public bodies to store and process personal information outside Canada, primarily to address perceived barriers to international trade and cloud-service procurement. As global digital trade conditions evolve and governments reassess risks related to foreign jurisdiction over data, Bill 9 presents an opportunity to reconsider whether the current framework adequately protects public-sector information and maintains Canadian legal control over sensitive records.
Questions
- Given that the removal of data residency requirements was justified in part by concerns about trade barriers, has the government reassessed whether those trade considerations still require British Columbia to allow public-sector personal information to be stored outside Canada?
- What safeguards currently exist to ensure that personal information held by BC public bodies in foreign cloud systems remains protected from access under foreign laws or national security authorities?
- Given evolving concerns about data sovereignty and cybersecurity, would the government consider restoring or partially reintroducing data residency requirements – particularly for sensitive public-sector datasets such as health, justice, or education records – as part of future FIPPA reforms?
Tags
The BC Government introduced Bill 9 – The Freedom of Information and Protection of Privacy Amendment Act – on February 26. FIPA’s initial response to the bill outlined a number of serious concerns. These concerns are attached to some unanswered questions about Bill 9. FIPA cannot jump into the meetings of the BC Legislature to pose these questions, but we can share them and encourage those who can raise them in the Legislature to do so. Bill 9 impacts the freedom of information and privacy rights of British Columbians, and the public deserves a full and informed discussion of the proposed amendments and their implications.
Requirements for a written request
Clause 2 replaces Section 5(1)(a) of the FIPPA, which concerns the criteria that an applicant must meet in order to obtain access to a record. The specific wording deals with the requirements for a written request, which are changed:
From:
- (a)provides enough detail to enable an experienced employee of the public body, with a reasonable effort, to identify the record sought,
To:
- (a) in the opinion of the head of the public body, provides enough detail to enable an experienced employee of the public body, with a reasonable effort and in a reasonable amount of time, to identify the record sought.
Issue: This introduces considerable discretion on the part of the head of a public body to determine what constitutes ‘enough detail’, ‘reasonable effort’, and what a ‘reasonable amount of time’ constitutes. In essence, it introduces a layer of opinion and judgement that replaces the original wording (which was subject to interpretation and review by the OIPC, in cases of complaint).
Questions
- Does this revision weaken the access rights of requesters?
- Does it not create greater authority for public bodies to narrow the scope of ‘valid’ FOI requests?
- Doesn’t this create an unreasonably high standard for the request language used by members of the public by potentially equating the request needed to meet the needs and equivalent understanding of the experienced employee?
Power to authorize a public body to disregard a request
Clause 13 amends Section 43 of the FIPPA, which concerns the power to authorize a public body to disregard a request. Specifically, the current language about the features of a request that could trigger an application to disregard it would be changed:
From
- c)responding to the request would unreasonably interfere with the operations of the public body because the request
- (i)is excessively broad, or
- (ii)is repetitious or systematic.
To
- (c) responding to the request would unreasonably interfere with the operations of
- (i) the public body, or
- (ii) the government of British Columbia, or
- (d) the request is
- (i) an abuse of the right to make a request under section 5 or 29 because the request is repetitious or systematic, or
- (ii) excessively broad.
Issue: FOI applicants file requests with public bodies, which include BC Government Ministries and the Premier’s Office, in addition to a wide range of municipal governments and institutions. Requests are processed under the authority of the head of the public body in question. Provincially, the IAO unit coordinates responses to requests to Ministries. Applicants cannot file FOI requests to ‘the government of British Columbia’ as an entity. There is established precedent for disregarding requests that, inter alia, would unreasonably interfere with the operations of a public body – but this is the first time that we have seen broader reference to possible interference with the operations of the government of British Columbia.
Questions
- On what basis would the head of a public body seek permission from the Commissioner to disregard a request because it might interference with the operations of the government of British Columbia, as a whole?
- Why did the government see fit to include this provision?
- Are there examples of types of requests that might trigger the ‘interference with the operations of the government of British Columbia’ subsection?
- Why is BC introducing such a provision, when it is not found in other provincial FOI legislation?
Clarity and accessibility of records holdings
Bill 9 has been presented, in part, as a bill intended to improve the efficiency of the FIPPA. It extends the authority of public bodies to decide, in their opinion, what constitutes “enough detail” and “reasonable amount of time” when determining whether a request is valid.
Composing a focused, effective request generally requires that an applicant have a degree of understanding about the nature and types of information held by the public body. For some public bodies, this sort of guidance is available – and for others, the public body’s information holdings are a kind of ‘black box’.
The government has claimed that the Information Management Act creates a kind of duty to document, but the IMA does not apply to all public bodies covered by the FIPPA.
Issue: Bill 9 Fails to enshrine in FIPPA a duty to document that requires all public bodies to create and manage detailed records of decisions and actions.
Questions
- What steps is the government taking to ensure that public bodies maintain adequate records of decisions and follow approved information schedules, per the requirements of the Information Management Act?
- Why does Bill 9 not address gaps in information management or require public bodies to update and publish information schedules that would empower requesters to more accurately compose requests?
- Why does Bill 9 not enable or amend the powers of the Office of the Information and Privacy Commissioner to provide oversigth of the Information Management Act?
FIPPA reform recommendations unaddressed
Questions
Bill 9 Fails to address all-party support to expand FIPPA and improve accountability in the legislature by failing to “Extend freedom of information provisions to the administrative functions of the Legislative Assembly”.
- Why, after the legislature ‘wood splitter’ scandal and the subsequent joint recommendation by BC’s independent regulators, does Bill 9 not extend FIPPA to cover the administrative offices of the Legislative Assembly?
The Special Legislative Committee’s 2022 report, entitled FIPPA for the Future, listed 34 recommendations “to improve and modernize access to information and privacy rules in British Columbia’s public sector”. Bill 9 represents a failure to act on these recommendations,
- Why does Bill 9 ignore most of the work of the last Special Legislative Committee that reviewed the FIPPA (and the reviews conducted by previous committees)?
- Why, despite the report’s recommendations to engage in a “comprehensive review of the FIPPA to address the evolving relationship with Indigenous governing bodies as it pertains to the Declaration on the Rights of Indigenous Peoples Act”, does Bill 9 make no mention of the DRIPA or Indigenous information rights?
Missed opportunity: Data residency
Issue: The removal of data residency requirements from British Columbia’s Freedom of Information and Protection of Privacy Act (FIPPA) allowed public bodies to store and process personal information outside Canada, primarily to address perceived barriers to international trade and cloud-service procurement. As global digital trade conditions evolve and governments reassess risks related to foreign jurisdiction over data, Bill 9 presents an opportunity to reconsider whether the current framework adequately protects public-sector information and maintains Canadian legal control over sensitive records.
Questions
- Given that the removal of data residency requirements was justified in part by concerns about trade barriers, has the government reassessed whether those trade considerations still require British Columbia to allow public-sector personal information to be stored outside Canada?
- What safeguards currently exist to ensure that personal information held by BC public bodies in foreign cloud systems remains protected from access under foreign laws or national security authorities?
- Given evolving concerns about data sovereignty and cybersecurity, would the government consider restoring or partially reintroducing data residency requirements – particularly for sensitive public-sector datasets such as health, justice, or education records – as part of future FIPPA reforms?
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