The BC Freedom of Information and Protection of Privacy Act (FIPPA) was meant to help create a culture of openness and transparency within the government.
Today, however, we frequently see public bodies failing to create records or destroying them in order to avoid the possibility of release. We are getting more calls and hearing more stories from concerned citizens who are not able to get the information they are looking for or who have found their privacy rights breached by a public body with little or no recourse.
Over the past year, we have tried to work with government on improving FIPPA. One year later, there has been no action and we do not have any sign that the government will move forward on legislative change.
What are the issues?
We’re calling for:
A legislated duty to document under FIPPA
Bringing public bodies’ subsidiaries under FIPPA
Implement Mandatory Privacy Breach Notification
Expand the oversight of the Office of the Privacy Commissioner in the areas of Privacy
What can you do?
Sign the petition for FIPPA reform today! Along with our partners at the BC Civil Liberties Association, we’re asking you to add your voice to our call for government to make the legislative changes they promised.
By signing the petition, you’ll be directly telling Premier John Horgan, Minister Jinny Sims, and Attorney General David Eby that information and privacy rights are important to you.
As a nonprofit society, the BC Freedom of Information and Privacy Association holds an Annual General Meeting. We like to make our AGMs engaging by inviting a guest speaker to give a talk related to information and privacy rights. This year, we are excited to welcome Bryan Carney, Director of Web Production at The Tyee, as our AGM guest speaker. Bryan’s talk is entitled ‘Accountability Cannot Be Automated’.
FIPA’s Directors and Staff thought that this would be a good opportunity to recognize The Tyee for its consistent attention to stories related to surveillance and privacy. Investigative reporting and insightful writing by Tyee contributors have broadened and informed public debates about a range of important privacy rights issues, including these 2018-2019 examples:
The last few years have seen a welcome across-the-board increase in media attention to surveillance and privacy, driven by, among other things, the Cambridge Analytica scandal, increasing public concerns about Big Data and the power of social media, the ongoing expansion of government surveillance powers, and a steady churn of massive data breaches. There have also been some positive shifts in the tone and scope of media coverage, and we have seen an increased willingness to pose big questions and examine structural and systemic problems.
Despite these developments, many media organizations still struggle with the task of connecting specific surveillance and privacy issues to both the lived experiences of individuals and broader trends like surveillance capitalism.
This is why we are so impressed with The Tyee’s work on these topics. The Tyee consistently publishes detailed and informative stories that examine the everyday dimensions of surveillance practices, address their implications, and pose vital questions about accountability and the adequacy of legal and institutional privacy protections. And, while The Tyee does provide reactive coverage and follow-up reporting when important privacy rights issues are broken by other media organizations, it is also tenaciously proactive, posing questions, following leads, and using FOI and Privacy requests to further original reporting. We would not know what we know about TransLink data sharing, RCMP social media snooping, or the BC connection to the Facebook scandal without the work of Tyee contributors and editors.
So, on behalf of FIPA, kudos to The Tyee for continued excellence in reporting on these vital topics. I am glad that Bryan Carney will be at our AGM to accept this award on behalf of The Tyee, as he has had a hand in many Tyee stories on privacy issues. To The Tyee’s staff, editors, and contributors, I hope that this award serves as recognition of a job well done and an affirmation of the value of continuing to invest in the ‘privacy beat’. We are at a pivotal moment in the history of privacy rights, and we have yet to adequately grapple with the challenges posed by Big Data, surveillance capitalism, the Internet of Things, and the security state. We need more detailed, forward-thinking journalism in this area, and other media organizations would do well to follow in The Tyee’s footsteps.
By Mike Larsen (President of the BC Freedom of Information and Privacy Association)
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:
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.
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.
In this special edition episode of our Data Subjects podcast, we revisit our Policing Info World conference. On May 23, 2019, we co-hosted a conference that explored the data behind crime, law enforcement, and surveillance. Along with department of criminology at Kwantlen Polytechnic University and the BC Civil Liberties Association, we heard from experts in law enforcement, academia, and the legal profession.
As this was a full-day conference, this episode is very long. Please see the show notes below to find the time codes and descriptions for specific panels and panelists.
This conference wouldn’t have been possible without the support of our sponsors: CUPE BC, News Media Canada, and Web exPress.
Panel 1: Data and New Surveillance Modes and Capacities
Moderator: Mike Larsen (Professor and Co-Chair, Department of Criminology, Kwantlen Polytechnic University, FIPA President)
Michelle Davey (Superintendent, Investigative Support Services, Vancouver Department)
Dr. Wade Deisman (Associate Dean, Faculty of Arts, Kwantlen Polytechnic University)
Josh Paterson (Executive Director, BC Civil Liberties Association)
Panel 2: Data and Predictive Policing
Moderator: Dr. Carroll Boydell (Instructor,Department of Criminology, Kwantlen Polytechnic University)
Ryan Prox (S/Constable, Crime Analytics Advisory & Development Unit, Vancouver Police Department)
Mike Larsen (Professor, Department of Criminology, Kwantlen Polytechnic University)
Panel 3: Data and Bias-Free Policing
Moderator: Sara Neuert (Executive Director, BC Freedom of Information and Privacy Association)
Dylan Mazur (Community Lawyer, BC Civil Liberties Association)
Michelle A. Cameron (Advisor / Investigator, the University of British Columbia)
Panel 4: Data and the Border
Moderator: Mark Hosak (Director of Community Engagement, BC Civil Association)
Peter Edelmann (Immigration Lawyer, Edelmann and Company Law Offices)
Meghan McDermott (Staff Counsel, BC Civil Liberties Association)