The last couple of weeks have seen question period in the BC Legislature occupied by the allegations of a whistle-blower accusing the Minister of Citizens’ Services, Jinny Sims, of wrongdoings that include circumventing the freedom of information laws that she oversees.
Compounding this issue are two things: The first is that Jinny Sims apologized only one year ago after admitting to similar infractions of freedom of information laws; the second is her claim that BC now has a positive duty to document.
What follows is examination of the issues at hand, of statements made by MLAs in the Legislature, and of statements made by previous Information and Privacy Commissioners.
Ultimately, this examination is intended to present a path towards the truth.
What is a Duty to Document?
A duty to document is the inclusion of provisions within provincial legislation that compels government to keep records of their decision making process in order to encourage government accountability and facilitate transparency.
The creation of a duty to document would go some distance to counteract past political scandals, like the triple-delete incident that occurred under the previous BC Liberal government.
After that scandal, the BC Liberals introduced Bill 6, which would enshrine a duty to document within the Information Management Act (IMA). The NDP referred to this as a “pre-election PR exercise” at the time.
In the second episode of our podcast, Data Subjects, we go over in detail the difference between adding a positive duty to document government decisions in the IMA or in the Freedom of Information and Protection of Privacy Act (FIPPA).
Despite the NDP’s initial contempt for the Bill 6, they ultimately moved forward with the bill with some amendments. They now celebrate the inclusion of a duty to document within the IMA.
However, the inclusion of the duty to document within the IMA as it currently stands is not sufficient to create any real change. The IMA doesn’t contain any significant penalties for non-compliance and won’t provide greater government accountability.
Ultimately, the inclusion of the duty to document in the IMA gives oversight power to the Minister of Citizens’ Services. Whereas, if the duty to document were to be added to the Freedom of Information and Protection of Privacy Act, independent oversight would be provided by the Office of the Information and Privacy Commissioner.
All this can be a bit confusing. Even Attorney General David Eby is confused about who has jurisdiction to investigate the very serious allegations raised by the whistle-blower.
In the Legislature, he stood up and called on the BC Information and Privacy Commissioner Michael McEvoy to investigate:
But, according to Commissioner McEvoy, only the Minister herself has the power to investigate the claims that are being levied against her:
When Minister Jinny Sims stands in the BC Legislature and says that the allegations against her unfounded, she is absolutely correct. And that’s exactly the problem. The only person empowered to investigate these kinds of claims is the Minister herself.
How do we defend the truth?
In instances where the truth has been conveniently misrepresented, it’s important for everyone, in an age of disinformation and alternative facts, to ask questions.
On May 29, 2019, Minister Jinny Sims stood in the BC Legislature and said that the legislative amendments to the IMA: “Respond directly to the recommendations that came from the former BC Information and Privacy Commissioners David Loukidelis and Elizabeth Denham.”
However, Elizabeth Denham has said on the record multiple times that she recommends including a duty to document in the FIPPA and not the IMA.
Here’s what she said to the all-party Special Committee of the BC Legislature that reviewed FIPPA in 2016:
Here’s a link to the full report produced by the Special Committee. Ultimately, they made this recommendation to government:
Perhaps, this is the source of Attorney General David Eby’s confusion, as he was a member of the all-party Special Committee that made this recommendation to include the duty to document in the FIPPA.
A recommendation that, ultimately, his NDP government decided to ignore.
In addition to her statements made to the Special Committee, Elizabeth Denham has stated her recommendation for the inclusion of a duty to document within the FIPPA in the report outlining her office’s investigation into the triple-delete scandal.
In that report, she made this recommendation:
Presented above are two pieces of evidence that clearly state former Information and Privacy Commissioner Elizabeth Denham’s recommendation that the duty to document should be included in the FIPPA and not the IMA.
How do we return to the truth?
Ultimately, the evidence is unequivocal; these two pieces of evidence explicitly state Elizabeth Denham’s recommendation to include the duty to document within the FIPPA.
Words have power. When statements are made, intentionally or unintentionally, they need to be supported with evidence. The evidence here suggests that Minister Sims has misrepresented the truth in her statements in the BC Legislature.
An acknowledgement of this mistake would be a good start. Furthering this, would be an official recognition of the fact that BC does not have a positive duty to document that ensures government accountability and facilitates transparency.
Logically following this, would be an acknowledgement of the hypocrisy of an acting Minister investigating her own alleged misconduct.
But the only thing that will truly bring us in line with some semblance of the truth, would be the actual creation of a positive duty to document.