“Is an investigation ever really closed?” asks BC FIPA

Many questions remain after Commissioner addresses FOI complaint relating to controversial Ministry of Health firings

VANCOUVER, September 10, 2015 – The BC Freedom of Information and Privacy Association (FIPA) is raising concerns that RCMP or other files could be left open indefinitely, thereby avoiding requests under the Freedom of Information and Protection of Privacy Act. This follows Information and Privacy Commissioner Elizabeth Denham’s finding that it was “not unreasonable” for the BC government to believe an RCMP file was not really closed, because it would be reopened “if and when” the government’s own related investigation was completed.

The RCMP file in question concerned the Ministry of Health’s controversial firing of eight researchers and employees in 2012.

Responding to a FOI request from FIPA, the BC government claimed an RCMP investigation could be harmed by releasing the requested records. The RCMP sent an email supporting the government’s position, but after the hearing, and before the OIPC made their decision, the RCMP closed the file and told the BC government that it would be reopened “if and when” the latter completed their investigation into the matter.

Though FIPA was ultimately successful in forcing the Ministry of Health to release more records, the government’s failure to inform the OIPC of the change in circumstances could have led to a different—and unfair—outcome.

Unfortunately, Commissioner Denham, despite finding that the RCMP email about the closing of the file raised “legitimate questions” found that it was reasonable for the government to have considered the case open. In her letter responding to FIPA’s concerns, she wrote that the government had a “reasonable belief” that the RCMP’s concerns about the release of records under FOI were still valid.

“The Commissioner’s response leaves a number of concerns unanswered,” said FIPA Executive Director Vincent Gogolek. “The most important is that there does not seem to be any clear point at which you can say an investigation is over for FOI purposes.”

“This ‘no harm, no foul’ finding leaves a great deal of uncertainty about when an investigation can be finally defined as concluded. FIPA will be raising these concerns and some possible solutions with the Legislative Committee reviewing the Act later this fall.”

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