BC Government keeps important environmental records behind closed doors

MEDIA RELEASE

BC government keeps important environmental records behind closed doors

Environmental Law Centre and FIPA ask Information Commissioner to investigate

VANCOUVER, February 24, 2017 – In a report released today, the Environmental Law Centre (ELC), and the BC Freedom of Information and Privacy Association (FIPA), called out the BC government for failing to proactively disclose a wide range of important environmental records.

Over the past decade the Information and Privacy Commissioner, the Ombudsperson, the Forest Practices Board and the Auditor General have all specifically recommended that certain classes of documents should be disclosed proactively — but those recommendations have often been ignored.

For example, the Ministry of Forests, Lands and Natural Resource Operations is still not posting contravention decisions to show how our forest practices laws are being broken — contrary to the recommendations of the Forest Practices Board. And the Ministry of Environment is not publishing copies of its compliance orders across most of the Province.

“So you can go to a website and promptly find every Vancouver restaurant that has broken a minor health regulation in the last year – but you can’t find those who have broken the rules on Crown land,” said FIPA Executive Director Vincent Gogolek.

Proactive disclosure is essential, because the enforcement of BC’s environmental regulations relies heavily on the public to raise issues and complaints. Without proactive disclosure, citizens and groups are forced to go through the Freedom of Information system to obtain the information necessary to launch a complaint – if they receive it at all.

For example, when the ELC tried to get copies of Government authorizations for liquid manure spraying above the Hullcar drinking water aquifer in 2015, Government officials said it might charge the ELC up to $600 for such orders.  And then release of the orders was unreasonably delayed – in contrast to other jurisdictions that promptly make such orders available.

The types of documents that the groups say should be proactively released include environmental orders, permits, contravention decisions, and policy manuals. Public disclosure of regulatory penalties is also important for the penalties to have a true deterrent effect and promote compliance.

“The public availability of such documents is absolutely necessary to keep government accountable and protect both our fragile ecosystems and the health of British Columbians,” said ELC Executive Director Calvin Sandborn.

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Contact:
Vincent Gogolek, Executive Director
BC Freedom of Information and Privacy Association
vincent@fipa.bc.ca  | (o) 604-739-9788 | (c) 604-318-0031

Calvin Sandborn, Executive Director
Environmental Law Centre
csandbor@uvic.ca  250-472-5248

For a copy of the full submission asking the Information Commissioner to take action to ensure more government transparency, go to www.elc.uvic.ca .

Triple delete case highlights need for FOI reform

The conviction of former Ministry of Transportation political staffer George Gretes for  obstructing the Information and Privacy Commissioner in her investigation of the “Triple Delete” scandal underscores the need for serious reform of the Freedom of Information and Protection of Privacy Act (FIPPA).

He was not, however, charged with the act of deleting information as that is not actually an offence under FIPPA. We need tougher penalties for those interfering with information rights as well as a legislated duty to document..

Both Commissioner Elizabeth Denham and her predecessor, David Loukidelis, have called for a legislated ‘duty to document’ and for stiffer penalties for violations of the Act.  So did FIPA. This was echoed by the Special Legislative committee reviewing the Act in its report this past May. The BC government has yet to respond to any of these recommendations except for vague statements that they were being ‘actively studied.’

According to a poll done for FIPA by Ipsos Canada, it is clear that many British Columbians want action on these issues. The poll found:

  • 96% of British Columbians believe it is important that government officials be legally required to keep accurate, complete records of what they do on the job.
  • 84% think government officials who interfere with access to information rights should face penalties.
  • 85% of respondents believe these reforms should be put into law before the next provincial election in 2017.

(Full poll questions and responses can be found here: https://fipa.bc.ca/poll/)

The inaction of the BC government is unacceptable, especially since Commissioner Denham first made these recommendations more than three years ago – presumably they should be able to put together legislation to implement this amendment by now, especially since they were able to bring back the Legislature in the middle of summer to bring in changes to the land transfer tax.

There really is no excuse for delaying action to restore public confidence in this province’s Freedom of Information system.

FIPA talks ATI reform with Commons Committee

FIPA was back in Ottawa earlier this month, once again talking about reform of the ancient Access to Information Act. This is something we have done going back to the last century, with very little to show for our efforts to-date.

There is a difference this time, however, because the minister responsible for the Act, Treasury Board President Scott Brison, has promised legislation this fall or early in 2017 to bring in some ‘quick wins’ for ATI, followed by a full review of the Act in 2018 (one year before the next federal election).

Recognizing what the government has imposed by way of a time-limited consultation process and legislative agenda, we dealt with a limited number of recommendations in detail in our submission, but urged the Committee to look at the dozens of other recommendations we made to the Information Commissioner during her 2012 consultation.

The government’s proposals include some restatements of what the Liberal Party promised during their election campaign, but some new elements have been added.

For example, the federal Liberals promised during the election to provide the Information Commissioner with order-making power, (similar to what we have long had here in BC). However, the proposals are now raising the possibility that the orders could be subject to an override by ministers . They have also floated the idea that government departments be given the power to bar requesters by claiming their requests are frivolous or vexatious.

Another issue: there is nothing in the government’s proposals about eliminating the exclusions in the Act, the most notorious being the exclusion of anything claimed to be a Cabinet document from review by either the Commissioner or the Federal Court.  We pointed out that the number claims of Cabinet confidences have increased dramatically over the last few years, and that if nothing is done to close this “information black hole”, the improvements to ATI will be undermined.

Also missing from the government’s proposals is a legislated duty to document. We pointed out to the Committee members that their equivalents in the BC Legislature—those reviewing the provincial access legislation—had just recommended the government put a duty to document into law. We urged them to follow suit at the federal level.

Hopefully the Committee will take our words and those of other witnesses to heart. Their report on recommended changes to the Act is expected to be released before the summer break.

Read more from the May 2016 Bulletin »

To surveil and protect (records from the public)

The VPD may or may not be engaging in mass cell phone surveillance

 Do you know if the Vancouver Police Department (VPD) is using surveillance tools to spy on peoples’ cell phone activity? Chances are you don’t, and neither do we. That’s because the VPD has refused to confirm or deny the existence of records relating to the use of IMSI-catchers, commonly known as Stingrays, in response to an FOI filed by PIVOT Legal Society.

FIPA has joined the BC Civil Liberties Association and OpenMedia as intervenors in an appeal filed by PIVOT to the B.C. Office of the Information and Privacy Commissioner.  We are all arguing that the records must be disclosed under FIPPA.

Stingrays are a surveillance tool used by police that mimic cell phone towers, essentially tricking cell phones to transmit their locations, identifying information, texts, emails and voice conversations. The controversial use of Stingrays by police in the United States has been well-documented.

Stingrays can’t single out a suspect’s phone and therefore gather information from all cellphones in a given area. The devices could be used to store data on citizens that could be searched at a later date, raising concerns about an increase in the already high number of cases where police break privacy rights by illegally accessing individuals’ private records.

Irrespective of concerns that Stingrays could facilitate warrantless police surveillance or other privacy rights violations, Innovation, Science and Economic Development Canada (formerly Industry Canada) has not granted authority to security agencies to use surveillance-dragnet devices that target cellphones.

The VPD argued, under sections 8 (2) and 15 (1)(c) of FIPPA that it would “neither confirm nor deny the existence of records” regarding Stingrays on the basis that the release of records would “harm the effectiveness of investigative techniques and procedures currently used, or likely to be used, in law enforcement.”

FIPA argued that PIVOT is entitled to the information because the sections of FIPPA cited by the VPD do not apply.  The VPD would have had to argue that simply disclosing the existence or nonexistence of the responsive records related to the use of Stingrays would somehow cause harm to law enforcement.

The fact, however, that Canadian police may be using Stingrays is well-publicized and could be assumed by anyone committing a crime. The level of detail in the request – do these records exist or not? – is quite different than a targeted request that would facilitate potential criminal acts, such as the type of undercover police cruisers used and their capabilities.

If this interpretation is upheld by the Office of the Information and Privacy Commissioner, it could apply to virtually any type of police equipment. The result could be not only an absurd level of secrecy within the police force, but a deficit in terms of accountability and oversight. FIPA will continue to speak out on the case due to its implications for privacy breaches and warrantless police surveillance, as well as the need for judicial oversight governing the use of this technology.

Read more from the May 2016 Bulletin »