BC FIPA and BCCLA support the Heiltsuk First Nation, Nuu-chah-nulth Tribal Council, and Tsilhqot’in National Government’s requests for COVID case information
VANCOUVER, September 15, 2020 – The BC Freedom of Information and Privacy Association (FIPA) and the BC Civil Liberties Association’s (BCCLA) have signed a joint letter to express support for the Heiltsuk First Nation, Nuu-chah-nulth Tribal Council, and Tsilhqot’in National Government’s and their requests for information from the BC Ministry of Health on COVID case information.
Despite repeated requests, the Ministry of Health refuses to disclose information relating to presumptive and confirmed COVID cases proximate to these rural Indigenous communities. This has prompted the nations to make a complaint to the Office of the Information and Privacy Commissioner. The Ministry of Health should address these requests and provide information pursuant to the Freedom of Information and Protection of Privacy Act (FIPPA), and the Declaration on the Rights of Indigenous Peoples Act (DRIPA).
“The complaint has a strong factual basis that is grounded in the risks experienced by specific rural Indigenous communities. We think that their ‘right to know’ is strongly supported by S.25 of FIPPA because the requested information pertains to the risk of significant harm to the health and safety of a group of people.” says Jason Woywada, FIPA’s Executive Director. “A crisis of this nature is precisely the time when transparency matters most, and these types of releases should be routine. If government doesn’t already have the necessary data sharing agreements with Indigenous communities in place to address these types of scenarios, they should be working quickly to address that gap.”
“The Heiltsuk First Nation, Nuu-chah-nulth Tribal Council, and Tsilhqot’in National Government have rights to self-determination and self-government, and to be actively involved in developing and determining programs for maintaining the health and well-being of their people” says Meghan McDermott, Interim Policy Director at the BCCLA. “By refusing to share the requested health data (with appropriate confidentiality provisions), the Ministry of Health is essentially preventing these communities from exercising the very rights that the province recognized when it enacted DRIPA.”
The history of colonization and the impacts of pandemics have disproportionately harmed Indigenous communities. The BC Government can work with Indigenous governments to disclose this information while also protecting privacy, but the Ministry’s failure to provide critical health information not only inhibits the Indigenous groups’ right to self-determination, it renders the province’s repeated commitments to “reconciliation” questionable.
Vancouver, September 2, 2020 – FIPA is encouraged by the report but discouraged by the climate that gave rise to it. The fact that public bodies have been consistently violating the law is deeply concerning and FIPA urges the BC Government to take this report seriously.
“The NDP ran on a platform favouring stronger FOI law in 2017. We haven’t seen them follow through on those commitments in a meaningful way.” according to Jason Woywada Executive Director of BC FIPA . “This report is just the latest evidence, built on years of recognition of systemic delays in BC’s FOI system. FIPA has repeatedly emphasized that ‘access delayed is access denied’ and we hope this report will encourage this government to finally act.”
“The current pandemic has underscored the vital importance of ensuring timely and accurate access to information. Transparency is not optional in a democracy – it is essential,” adds Mike Larsen, BC FIPA President.
A transparency system can only be considered functional if it provides members of the public with timely access to the information that they need to participate in the democratic process and to hold public bodies to account. Too often in BC (and Canada), we have seen breakdowns in transparency caused by governments’ failure to adequately resource FOI/ATI offices. When these offices are unable to meet the timelines established by law, the public’s right to know inevitably suffers. Timeliness can be improved, and rights respected when public bodies commit to the prompt and routine proactive release of categories of records of public interest. Transparency should be the default – not a struggle – and this requires deliberate and consistent action to improve the proactive disclosure of records. In 2017, the NDP echoed these sentiments in response to a FIPA questionnaire on transparency and privacy priorities heading into the provincial election.
FIPA agrees with all of the OIPC’s recommendations but emphasizes that, in addition to taking steps to improve compliance and efficiency, BC’s key piece of transparency legislation – the FIPPA – needs reform. Policy and compliance changes are an important part of this process, but law reform is paramount.
At a minimum, we expect all public bodies to follow the law, and to comply with all of their responsibilities under FIPPA. This means creating and updating systems and providing the resources necessary for public bodies to accurately and efficiently respond to public FOI requests.
Looking back at a year of positive change, we are proud of the work we’ve done to further BC’s and Canada’s information and privacy rights landscape.
The 2019 report reflects our ongoing commitment to strengthening FIPA’s position within the information and privacy rights field through legal research, law reform, public legal education, and advocacy and public aid. We will continue to push and advocate for government transparency and freedom of information, surveillance and privacy, and civil liberties.
This report is available as a downloadable PDF. We invite you to explore its content and learn more about FIPA’s work.
Stanley Tromp has updated his 2008 book, Fallen Behind: Canada’s Access to Information Act in the World Context.
From Stanley Tromp:
The first edition of this book in 2008 detailed how Canada’s Access to Information Act had fallen behind the rest of the world’s FOI laws. Since then, the problem has only grown far worse (enough so that the revised book could well be entitled Fallen Further Behind).
In the authoritative Global Right to Information
Rating system of the world’s 128 national laws, Afghanistan ranks number 1,
while Canada – which ironically has so worked hard to transform that nation
into a modern democracy – ranks 58. Mexico ranks second, followed by (in order)
Serbia, Sri Lanka, Slovenia, Albania, India, Croatia, and Liberia.
In his preface to the new edition,
Halifax human rights lawyer Toby Mendel writes, “As someone who travels around
the world promoting the right to information, it is frankly a source of
profound embarrassment to me how poorly Canada does on this human right.”
Bill C-58 (which is now law) grants the Information Commissioner a barely adequate power to order the government to release records, and this is merely a baby step forward. When will the ATI Act ever be raised to accepted global standards? Canadians should insist upon answers.