June 9, 2015
Information and Privacy Commissioner of British Columbia
PO Box 9038, Stn. Prov. Govt.
Victoria, BC V8W 9A4
RE: BC Government submissions in OIPC file F12-50727
I am writing to ask you to conduct an investigation under s.42 of the Freedom of Information and Protection of Privacy Act (“the Act”) into the conduct of the government of British Columbia in the hearing of our request for review in this case, which ultimately resulted in Order F14-45. The hearing took place in March of 2014, and the Order was released in November of the same year.
This Order dealt with our request for records related to data sharing agreements and related communications pertaining to a number of named individuals. The full request is set out in para 1 of the Order.
Among the many exceptions and exclusions claimed by the Ministry (many of which were dropped before the hearing) was harm to law enforcement. The BC government claimed there were a number of investigations underway at various points since we made our FOI request in 2012, including an investigation by the RCMP into possible criminal activity.
The question of whether or not records responsive to a request by BC FIPA were covered by the law enforcement exception to release (s.15 of FIPPA) was the central point of contention in this hearing and the primary focus of submissions by both FIPA and the Ministry.
The government submitted two affidavits in support of its submissions regarding potential harm to law enforcement, one from an official at the Ministry of Health and the other from an official at the Office of the Comptroller General. Both affidavits, sworn in March 2014, deposed that there was an ongoing RCMP investigation into the circumstances in this case.
Although the Adjudicator ultimately ordered the release of the records over which the government claimed a s.15(1)(a) exception applied, she accepted the government’s evidence that an RCMP investigation was in fact underway in some form.
 The Ministry submissions and supporting evidence satisfy me that an RCMP investigation into matters related in some way to the OCG’s investigation was commenced and had not concluded at the time of inquiry submissions. In my view, it is clear that an RCMP investigation would meet the definition of “law enforcement” because it is “policing, including criminal intelligence operations.” (emphasis added)
In a footnote, the Adjudicator notes that “There was no evidence provided about the nature of that investigation or the identity of the individuals whose activities the Ministry submits are under scrutiny by the RCMP.”
As you may be aware, a story by the Vancouver Sun last week cited a number of records obtained from the RCMP through Access to Information related to the supposed investigation, which indicated that the ‘investigation’ was little more than an open file, awaiting information from the BC government which was never provided.
These documents indicate that although the RCMP had opened a file when requested to do so by the BC government, nothing had been done in the nature of what anyone would consider to be an investigation in the normal meaning of that word.
More importantly, one of the documents obtained from the RCMP by the Sun shows that after repeated requests by the RCMP for information about the case, no such information was received from the BC government. As a result the file was closed on July 16 2014, and the documents indicate that the RCMP informed the BC government that the file had been closed.
This took place after the OIPC hearing had closed, but several months before the Adjudicator released her decision.
I am disturbed that a central fact which directly contradicted the evidence provided under oath by two government officials in support of submissions by the government in a quasi-judicial proceeding was not disclosed at any point during the months after the government became aware of it. As you know, the normal procedure is to inform OIPC of this type of material change in circumstances, with the possibly that the hearing could be re-opened for new submissions.
Although this failure did not have any effect on the ultimate Order issued by your office, it does cast a pall over the process. Whether through lack of internal communication or deliberate decision not to make this radical change in circumstances known to the tribunal, it is not acceptable and undermines your office.
Therefore we urge you to review this matter as soon as possible.
If you have any questions, or require any additional information, we would be pleased to assist.