Originally Published 2024.01.22 and Updated 2024.01.25
As part of our “FOI a Day” research, we continue to file and examine how public bodies meet their record keeping and disclosure obligations. We have been filing a number of freedom of information requests about freedom of information that continue to deliver important insights.
A recent group of requests focus on ensuring the public has access to the documents an individual public body uses to manage its access to information and information management regime. These records would form the foundation for the procedural and administrative function of Freedom of Information in the public body. We initially hoped they might be proactively released as a category of records. When our reviews revealed that was not the case, we decided to explore this as an avenue of research.
The initial response detailed here highlights a serious issue. While the decision in this instance ultimately landed in the public interest, it could just as easily led to complaint and possible court action.
We sought to learn:
To begin, a series of requests was sent to create a population sample of the 64 public bodies including 24 Ministries that are required to comply with the Freedom of Information and Protection of Privacy Act (FOIPPA) and the Information Management Act (IMA). As of 2024.01.22 most public bodies have responded. One particular response exhibited the application of a redaction that was immediately and clearly problematic.
Our FOI request language:
current organizational charts that indicate freedom of information personnel and information management personnel (ARCS 105-02)
delegation of authority charts for the Freedom of Information and Protection of Privacy Act; (ARCS 265-20)
policies or procedures regarding freedom of information (not privacy), including policies and procedures regarding the routine release of information and proactive disclosure, but excluding the FOIPPA Policy & Procedures Manual (ARCS 292-00, 292-27)
final reports regarding public body-specific performance reporting, program evaluations, or project implementation plans or reviews with respect to freedom of information (ARCS 400-02, ARCS 400-10, ARCS 400-20, ARCS 400-40, ARCS 400-50, ARCS 440-02, ARCS 400-20).
Date range: 2021.01.01 – 2023.11.03
Insights gained:
BC Housing’s initial response package (292-30-16123 Response Package) has one redaction applied on page 12 of 64 citing Section 21 of the FOIPPA.
On receipt of any FOI request BC Housing sends the request to a private company (PrivacyWorks) and the steps, process, and processing that company applies to the request is redacted and kept secret.
Processing FOI requests is a responsibility of public bodies, and most of them do this work in-house. This is important because it means that the entire FOI process, including the policies and procedures used to respond to requests, consists of government records. Some public bodies, including BC Housing, retain private companies to process FOI requests. In this case, BC Housing has claimed that certain information related to the processing of FOI requests – information that is available from other public bodies – can be withheld because it concerns the business interests of their contractor, PrivacyWorks.
This information was being redacted citing s. 21. This section enables a public body to withhold information that is in the business interests of a third party. This meant that members of the public faced the prospect of not fully understand or being able to verify the procedural fairness of the process that BC Housing used in responding to FOI requests because they contracted with a third-party business.
From a public interest perspective, failing to be transparent about a decision-making process is a problem. A lack of transparency is a contributing factor to people losing trust in organizations including public bodies. Multiple recommendations from multiple organizations on decision making in public bodies highlight the importance of transparency in decision making processes. The internal workings of our transparency processes must themselves be transparent and open to public scrutiny. While there is nothing inherently problematic about a public body retaining the services of consultants or third parties, outsourcing should not make core public body functions secret and confidential. BC Housing faces the prospect of creating a black box to make decisions that impact people and placing a greater emphasis on the interests of a company than the public interest. It raised serious questions. If they can’t be transparent about how they fulfill freedom of information requests, what level of commitment do they have to transparency and accountability.
Additionally, questions can be raised about whether or not public bodies that under take this outsourcing are diminishing the capacity of the public service. FIPA fails to see how outsourcing this work to the private sector builds or maintains freedom of information service delivery internal to the public body which require this core skills to be maintained. This arrangement between BC Housing and PrivacyWorks exports a core function of a public body outside of a public body. It is inherently reasonable to expect public bodies to fulfill quasi constitutional rights without reliance on private contractors who could demand commercial secrecy to fulfill those rights. The benefit and importance of this being done internal to a public body is it avoids these issues of accountability and transparency in the public interest.
FOIPPA does not always require the consideration of the public interest in disclosure. In section 21, its design leaves public bodies prone to defaulting to upholding corporate secrecy regardless of the public interest values that may support disclosure. This status quo is not an option and there are progressive ways this can be addressed.
In a current context we would hope that when s. 21 is applied that the public body would contact the business and seek consent for disclosure under s. 21.(3)(a). Any public body can start today to make it a policy that they consult the affected business when applying s. 21 and seek consent for disclosure prior to release.
Through law reform there is a need to redesign and rebalance FOIPPA in favour of the public interest over secrecy in general and corporate secrecy specifically. In this instance this would require a reasonability consideration and harms test to be included in s. 21 despite the need for consultation impacting timeliness.
This application fundamentally impacts the public’s right to know and can create cascading impacts in multiple areas. Outside of transparency policy: business may lose open procurement processes, workers and labour may lose transparent hiring or disciplinary processes, applicants for programs may lose the right to know how a decision is made. Fundamentally, people may lose the ability to know how a decision is reached by a public body that impacts them if a private contractor is involved.
Subsequent Action:
FIPA sought to mediate and sent an email asking BC Housing to explain the application of s.21 and requested that they reconsider and remove the redaction.
We did not want to assume the possibility that the company to whom the business interest applied (PrivacyWorks) was also the one who reviewed the redaction and returned the request to BC housing prior to release. To clarify this, we sent a subsequent request to BC Housing seeking the communications between BC Housing and PrivacyWorks relating to the decision and application of s. 21 in this specific request.
We hoped this could be resolved quickly and in favour of the publics right to know.
Update 2024.01.25 :
Upon receipt of our message, BC housing and PrivacyWorks reevaluated and removed the redaction.
We greatly appreciate this reconsideration and want to commend both BC housing and PrivacyWorks for addressing this concern.
That being said, the underlying issues remain regarding the application of s.21. The implications to decision making are far reaching and do not bode well when Artificial Intelligence or private business algorithms are used by public bodies. We will need to maintain vigilance and ensure this application does not remove the public’s right to know.
Our Message to BC Housing 2024.01.22
Good afternoon,
We hope this e-email finds you well.
FIPA is seeking to follow up on the response to our freedom of information request filed to B.C. Housing on 14 November 2023 and closed on 20 December 2023. The request file is 292-30-16123.
Specifically, we request an explanation to aid our understanding of the application of section 21(1) of the FOIPPA to portions of pages 12 and 13 of the response package (attached here). We would appreciate further explanation as to which paragraphs and subparagraphs of the Act are engaged in protecting PrivacyWorks’ business interests.
FIPA asks that B.C. Housing reconsider the application of this exception. For a public body to design a secret administrative process that is obscured and severs records due to business interest calls into question how administrative fairness and justice can be guaranteed. For this to be applied in a freedom of information process is doubly troubling.
BC Housing Response 2024.01.24
Thank you for your email.
Relating to your Information Access request 293-30-16123, you asked:
Specifically, we request an explanation to aid our understanding of the application of section 21(1) of the FOIPPA to portions of pages 12 and 13 of the response package (attached here). We would appreciate further explanation as to which paragraphs and subparagraphs of the Act are engaged in protecting PrivacyWorks’ business interests.
When we developed this Expectations document (Pages 12-13 of your response package), we engaged PrivacyWorks to better understand the workflow that their consultants would use when reviewing an FOI request that is assigned to them. This workflow was shared with BC Housing in confidence and it comprises proprietary information for this consulting agency, with minor changes to reflect BC Housing language. PrivacyWorks described that the steps developed here should be considered proprietary and confidential: “while they espouse best and commonly accepted FOI practices, it was a significant undertaking to develop a complete set of workflows specific to our business model and systems.” Because PrivacyWorks is a consultancy organization in the private market, we consider that it may harm their competitive position to have their work shared and potentially replicated across competing organizations.
You additionally asked:
FIPA asks that B.C. Housing reconsider the application of this exception. For a public body to design a secret administrative process that is obscured and severs records due to business interest calls into question how administrative fairness and justice can be guaranteed. For this to be applied in a freedom of information process is doubly troubling.
Based on your request, I reconnected with PrivacyWorks to reconsider whether these two pages could be disclosed in full. I am happy to enclose the unsevered pages 12-13 of your records package.
Please let me know if there’s anything further I can clarify for you.
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This is post is a result of our access assessment research. We are getting meta with FOI, by using access requests to inform our research about access rights.
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