An “embarrassing” interpretation of the Freedom of Information and Protection of Privacy Act: FIPA files complaint about B.C. government burying negative reports

CC License by Flickr: Alex E. Proimos
CC License by Flickr: Alex E. Proimos

Nobody likes going public with embarrassing reports, but the B.C. government has conjured some of its most creative legal analyses yet in an attempt to keep less flattering information out of the public realm.

The B.C. government has refused to post both the McNeil report, which examines the mysterious Ministry of Health data breach firings, and the Mingay report on the excessive executive payment at Kwantlen University.

The government claims it is somehow prevented from posting the reports because of the “reputational interests” of public servants or public figures. It argues, as quoted in the Tyee, that doing so would violate section 33.2 of the Freedom of Information and Protection of Privacy Act (FIPPA), which requires personal information not be stored or accessible outside Canada.

The government’s interpretation of the Act is interesting, to say the least. Section 33.2 was designed to keep information contained in B.C. government data banks in Canada and away from the US Patriot Act. It was not designed to prevent government reports from being posted. If it were the proper interpretation of the law, the posting of any personal information on a public body’s website would be a violation of the FIPPA.

Furthermore, the B.C. government’s claims that it is prevented from posting this type of information cannot be found in the government’s own policy statements and manuals. The Open Data and Open Information Policy makes no mention of the exception, and a review of the FIPPA Policy and Procedures Manual does not prohibit posting reports that may contain personal information on websites.

confidential300pxSince the B.C. government has begun acting on this new interpretation on what it may post on its website, only press releases and backgrounders related to the embarrassing reports have appeared. The actual reports are being circulated as hard copies or PDF documents to the media and others upon direct request.

FIPA, in response, has asked Information and Privacy Commissioner Elizabeth Denham to conduct an investigation into the matter. In our request for an investigation, we noted that many of the reports and information posted by the Information and Privacy Commissioner would fall into the scope of Section 33.2. We told the Commissioner that it is difficult to imagine that this interpretation is anything other than the government using its creativity to find a way to restrict the availability of these embarrassing reports.