NEWS RELEASE: BC Government introduces Public Interest Disclosure Act

MEDIA RELEASE
April 27, 2018

BC Government introduces Public Interest Disclosure Act

Bill is a significant step in the right direction, but highlights problems with the current Freedom of Information and Privacy Act (FIPPA)

VANCOUVER, APRIL 25, 2018 – On April 25, BC Attorney General David Eby introduced legislation that would create a framework allowing public service employees to disclose serious wrongdoing, and provides general provisions to protect the discloser.[1] The BC Freedom of Information and Privacy Association (FIPA) has called for whistleblower protection legislation for British Columbia and sees this as a significant step in the right direction.

According to a Ministry of the Attorney General press release,

The Public Interest Disclosure Act (2018) will enable concerned public servants to report incidents to their supervisor, an internal designated officer or the ombudsperson. The act makes it an offence to commit or direct a reprisal against such employee, which could take the form of a demotion, termination or disciplinary measure. Protection from reprisal is vital to employees feeling safe to report wrongdoing without fear that they may suffer consequences for doing so.[2]

The legislation includes a number of much-needed components, including multiple reporting options for disclosers, confidentiality provisions, investigative powers, protections against reprisals, and the requirement that public bodies and the Office of the Ombudsperson file annual reports about disclosures.

While we strongly support the introduction of whistleblower protection legislation, BC FIPA is concerned that the definition of ‘wrongdoing’ under the Public Interest Disclosure Act would not encompass deliberate efforts to interfere with access to information rights under the Freedom of Information and Protection of Privacy Act (FIPPA). Section 7(1) of the PIDA defines wrongdoings to include:

(a) a serious act or omission that, if proven, would constitute an offence under an enactment of British Columbia or Canada;
(b) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of an employee’s duties or functions;
(c) a serious misuse of public funds or public assets;
(d) gross or systemic mismanagement;
(e) knowingly directing or counselling a person to commit a wrongdoing described in paragraphs (a) to (d).

The FIPPA contains offences related to its privacy protection provisions and offences related to interference in investigations undertaken by the Office of the Information and Privacy Commissioner. It does not, however, contain offences related to general interference with access to information rights by public officials – including the unauthorized destruction of documents with the intention to avoid access rights. This means that such actions would fall outside the scope of 7(1)(a) of the PIDA. It is also not clear that the interference with access to information rights would be considered ‘gross or systemic mismanagement’ under 7(1)(d) of the Act.

There is a well-documented history of interference with access to information rights in BC, including routine destruction of records.[3] The ‘triple delete’ scandal is a particularly egregious example, and it is important to recall that this case came to light through the actions of a whistleblower in the public service. This is precisely the sort of activity that should be covered by public interest disclosure legislation, and public service employees who wish to disclose such practices should know that can expect support, confidentiality, and protection from retaliation. The fact that such whistleblowing would not be covered by the PIDA is a serious shortcoming.

BC FIPA believes that this shortcoming could and should be addressed through the reform of the Freedom of Information and Protection of Privacy Act. The Act requires a legislative ‘duty to document’ and the inclusion of an offence related to the alteration, concealment, or destruction of records with the intention of denying or interfering with access rights. The creation of such an offence would bring these practices under the scope of wrongdoing under s. 7(1)(a) of the PIDA.

Mike Larsen states “The effectiveness of whistleblower protection measures rests, in large part, on the forms of wrongdoing they contemplate and apply to. We need to be certain that public service employees who know about efforts to delete, conceal, or alter records with the intention of denying information rights can disclose this wrongdoing and receive full support and protection.”

A PDF version of this press release can be found here.

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Contact:
Mike Larsen, President
BC Freedom of Information and Privacy Association
mike@fipa.bc.ca | 604-599-3413

Sara Neuert, Executive Director
BC Freedom of Information and Privacy Association
sara@fipa.bc.ca | 604-739-9788

[1] Bill 28 – 2018: Public Interest Disclosure Act: https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/41st-parliament/3rd-session/bills/first-reading/gov28-1

[2] Government introduces public interest disclosure legislation for public service: https://news.gov.bc.ca/releases/2018AG0026-000729

[3] See OIPC Investigation Report F15-03 – Access Denied: Record Retention and Disposal Practices in the Government of British Columbia, Oct. 2015: https://www.oipc.bc.ca/investigation-reports/1874

 

FIPA’s Submission on FIPPA reform

FIPA’s submission on FIPPA reform

FIPA has been busy the past few months pushing for Freedom of Information and privacy reform. During this time, we ramped up pressure on the new government with our Ipsos poll and a joint letter sent to Premier John Horgan pushing for information rights reform.

In response, the BC Ministry of Citizens’ Services has launched a public consultation on freedom of information and privacy rights in BC. Building upon our 2015 FIPPA submission, you can read our updated submission here.

Submission deadline is April 9, 2018 at 4PM. You can have your say either through online discussion, or by written submission. More information on ways to participate here: https://engage.gov.bc.ca/infoaccess/ways-to-participate-2/

The Ministry of Citizens’ Services has added a phone number and email for greater accessibility: 250-208-3591 or CitizenEngagement@gov.bc.ca.

The time for information rights reform is now! And we need your help!

Exciting news! The BC Ministry of Citizens’ Services has launched a public consultation on freedom of information and privacy rights in BC, and we need your help! Here’s your chance to voice your thoughts, concerns or ideas for change. Help us put an end to record destruction, failure to create records, FOI loopholes, and other opaque government practices!

Over the past few months, we ramped up pressure on the new government with our Ipsos poll and a joint letter sent to Premier John Horgan pushing for information rights reform.

See our call to action here.

Joint letter calls for action on FOI and privacy reform

Earlier today we sent a joint letter to Premier John Horgan supporting Freedom of Information and privacy reform, and offering our help to bring this about.

The text of the letter, signed by a number of well-known groups and individuals, is set out below. See here for the PDF copy.

 

February 22, 2018

The Honourable John Horgan
Premier of British Columbia
Victoria, BC

Dear Premier Horgan:

Re: Reform of Freedom of Information and Privacy Legislation

We are writing you regarding the need for immediate action in bringing about long-delayed reform of the Freedom of Information and Protection of Privacy Act (FIPPA).

Doubtless you appreciate that although that law was groundbreaking for the early 1990s, (when it was brought in by the NDP government of Mike Harcourt), it has become outdated and is in need of serious reform, as last year’s Special Legislative Committee outlined in its report. Some of the reforms called for include:

  • Implementing a legislative duty to document in FIPPA itself,
  • Bringing in legislative solutions to end the over-application of certain exceptions to disclosure, particularly sections 12 (cabinet records) and 13 (policy advice) of the Freedom of Information and Protection of Privacy Act,
  • Bringing the subsidiaries of educational and other public bodies within the scope of the FIPPA, and
  • Implementing mandatory breach notification.

It is our view that work must begin immediately on updating the Act.

In the meantime, we would like to remind you of an action your government can take immediately to demonstrate a concrete commitment to improving the system.

During the last election, your party was asked by the BC Freedom of Information and Privacy Association about a policy brought in by the previous government to post “the texts of Freedom of Information requests it receives even before releasing any information [to] the requester.” BC FIPA asked two questions, which are set out below along with your party’s responses:

Q:Do you agree with this policy, and if so, why?
A: No.
Q: If not, will your government end this practice?
A: Yes.

This practice continues to this day, despite your party’s very clear statement that it does not agree with it and will end it.

This does not require legislation or Chamber time, so we are puzzled as to why your government has yet to carry out your party’s quite categorical commitment to end it.

Finally, we would like to mention the result of a poll conducted last month by Ipsos Canada for BC FIPA. When asked how important they thought it was that your government bring in reforms to the information and privacy law before the next BC election, 47 percent said it was very important, and 38 percent said it was somewhat important.

We are available to work with your government to help bring about positive changes to protect the information rights of all British Columbians and build a stronger democracy.

Please let British Columbians know when we can expect this work to begin.

Yours Truly,

Vincent Gogolek

Executive Director

 

Micheal Vonn, Policy Director, BC Civil Liberties Association
Glen Hansman, President, BC Teachers Federation
Nick Taylor-Vaisey, President / National director, Canadian Association of Journalists
Darrell Evans, President, Canadian Institute for Information and Privacy Studies Society
Tamir Israel, Staff Lawyer, Canadian Internet Policy and Public Interest Clinic
Randy Christensen,  Staff Lawyer, Ecojustice
Jennifer Whiteside, Secretary Business Manager, Hospital Employees’ Union
Dermod Travis, Executive Director, Integrity BC
John Hinds, President and Chief Executive Officer, News Media Canada
Neil Self, Chairperson, Positive Living Society of British Columbia
Sharon Polsky, President, Privacy and Access Council of Canada
Beth Clarke, Development and Program Director, Wilderness Committee
Shannon Daub, Associate Director, Canadian Centre for Policy Alternatives – BC Office
Stanley Tromp, Journalist