BC Freedom of Information and Privacy Association
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Special Committee reviewing BC’s Freedom of Information and Privacy Act hands down a ‘good, bad and ugly’ report
The unanimous report handed down by the Special Committee reviewing BC’s Freedom of Information and Protection of Privacy Act has a lot of positive recommendations, but a few recommendations could be huge problems for FOI and privacy rights in this province.
First, the good stuff.
The committee has repeated a number of the recommendations of its 2004 predecessor. There are recommendations pushing public bodies to more routine disclosure, which will make information more widely available and reduce the need to use the FOI process. In some cases, time limits would be shortened, and a number of measures are proposed to streamline the processes of the Information and Privacy Commissioner’s office.
The committee has recommended closing what could be a huge loophole for educational institutions creating subsidiary companies to avoid FOI requests. This is very important as the courts have already ruled that records with a wholly owned subsidiary of Simon Fraser University are beyond the reach of FOI requests. It is important to have this loophole closed by legislation, rather than hoping the BC Court of Appeal will overturn the decision.
The committee has also accepted a recommendation from FIPA that the test for mandatory release of documents in the public interest under s.25 of the Act be relaxed to meet standards set down by the Supreme Court of Canada.
On the privacy side, there are also positive developments.
The committee ruled out amending the Act to allow storage of information outside Canada. The government pressed hard for this amendment, and FIPA is very pleased that the Committee has declined to recommendation it.
The Committee also recommended that the government hold public consultations on data sharing initiatives like the Integrated Case Management system (see FIPA report on the ICM and its dangers).
They also recommended an amendment to make privacy impact assessments (PIAs) mandatory at the “conceptual, design and implementation phases” of an electronic record project. (Case example: No PIA has ever been done of the Integrated Case Management Project, despite the Commissioner’s repeated requests over more than two years).
Now the bad and the ugly
There are three recommendations in the committee’s report that give FIPA serious concern.
First, the committee has failed to repeat the 2004 recommendation of the previous review committee to close the ever-widening loophole that allows the government to withhold ‘advice or recommendations’.
As a result of a 2002 BC Court of Appeal decision that misinterpreted section 13 of the act, this province now has the widest possible scope for preventing disclosure of information that the government says is advice or recommendations. The government has repeatedly taken advantage of this, and this has gone so far that FIPA is now waiting for a court decision on whether submissions to a consultation process are considered ‘advice’ for the purpose of s.13 of the Act.
FIPA is disappointed that the committee declined to keep pressure on the government to bring in a desperately needed amendment to section 13.
Second, the committee has recommended making the “Legal Advice” exception, section 14 (which allows government to withhold information covered by solicitor-client privilege) mandatory, meaning a public body MUST withhold information that falls under this heading.
This alone would make the legal advice exception more restrictive, but the committee didn’t stop there. They also recommended that the application of the exception may only be ruled upon by the Supreme Court of BC instead of the Information and Privacy Commissioner.
The committee report did not cite a single case where the current system resulted in improper release of privileged documents. They also do not say how this amendment would actually work in practice. Would every s.14 claim by government go before a judge, or just requests where the applicant contests the government’s claim? Would the Commissioner have to wait for the court to rule before dealing with other exceptions, or would the court wait for the Commissioner? One thing is certain, this recommendation would make the system more complicated, slower and more costly.
Finally, the committee recommended instituting a system of ‘consent’ for the collection, use and disclosure of personal information by a public body. This means that people could be asked to consent to uses of their personal information that are not otherwise allowed by the act – basically waiving their privacy rights!
This was a recommendation pushed by the government during hearings, and as “some members” of the committee noted, the concept of consent in the government context is essentially meaningless. Unlike the private sector, where there may be other companies willing and able to provide goods or services if you don’t like a company’s privacy policy, there is no where else to go for government services if you refuse to consent.
It is now up to the government to decide whether or not to take action on the committee’s recommendations. As the Legislature may not be back until 2011, they should have plenty of time to consider what to do about amending the Freedom of Information and Protection of Privacy Act.
The report is available here.
More coverage:
B.C. FOI committee recommends explicit right to electronic records
Chad Skelton, Vancouver Sun
The non-recommendations were the big news
Vaughn Palmer, Vancouver Sun
The unanimous report handed down by the Special Committee reviewing BC’s Freedom of Information and Protection of Privacy Act has a lot of positive recommendations, but a few recommendations could be huge problems for FOI and privacy rights in this province.
First, the good stuff.
The committee has repeated a number of the recommendations of its 2004 predecessor. There are recommendations pushing public bodies to more routine disclosure, which will make information more widely available and reduce the need to use the FOI process. In some cases, time limits would be shortened, and a number of measures are proposed to streamline the processes of the Information and Privacy Commissioner’s office.
The committee has recommended closing what could be a huge loophole for educational institutions creating subsidiary companies to avoid FOI requests. This is very important as the courts have already ruled that records with a wholly owned subsidiary of Simon Fraser University are beyond the reach of FOI requests. It is important to have this loophole closed by legislation, rather than hoping the BC Court of Appeal will overturn the decision.
The committee has also accepted a recommendation from FIPA that the test for mandatory release of documents in the public interest under s.25 of the Act be relaxed to meet standards set down by the Supreme Court of Canada.
On the privacy side, there are also positive developments.
The committee ruled out amending the Act to allow storage of information outside Canada. The government pressed hard for this amendment, and FIPA is very pleased that the Committee has declined to recommendation it.
The Committee also recommended that the government hold public consultations on data sharing initiatives like the Integrated Case Management system (see FIPA report on the ICM and its dangers).
They also recommended an amendment to make privacy impact assessments (PIAs) mandatory at the “conceptual, design and implementation phases” of an electronic record project. (Case example: No PIA has ever been done of the Integrated Case Management Project, despite the Commissioner’s repeated requests over more than two years).
Now the bad and the ugly
There are three recommendations in the committee’s report that give FIPA serious concern.
First, the committee has failed to repeat the 2004 recommendation of the previous review committee to close the ever-widening loophole that allows the government to withhold ‘advice or recommendations’.
As a result of a 2002 BC Court of Appeal decision that misinterpreted section 13 of the act, this province now has the widest possible scope for preventing disclosure of information that the government says is advice or recommendations. The government has repeatedly taken advantage of this, and this has gone so far that FIPA is now waiting for a court decision on whether submissions to a consultation process are considered ‘advice’ for the purpose of s.13 of the Act.
FIPA is disappointed that the committee declined to keep pressure on the government to bring in a desperately needed amendment to section 13.
Second, the committee has recommended making the “Legal Advice” exception, section 14 (which allows government to withhold information covered by solicitor-client privilege) mandatory, meaning a public body MUST withhold information that falls under this heading.
This alone would make the legal advice exception more restrictive, but the committee didn’t stop there. They also recommended that the application of the exception may only be ruled upon by the Supreme Court of BC instead of the Information and Privacy Commissioner.
The committee report did not cite a single case where the current system resulted in improper release of privileged documents. They also do not say how this amendment would actually work in practice. Would every s.14 claim by government go before a judge, or just requests where the applicant contests the government’s claim? Would the Commissioner have to wait for the court to rule before dealing with other exceptions, or would the court wait for the Commissioner? One thing is certain, this recommendation would make the system more complicated, slower and more costly.
Finally, the committee recommended instituting a system of ‘consent’ for the collection, use and disclosure of personal information by a public body. This means that people could be asked to consent to uses of their personal information that are not otherwise allowed by the act – basically waiving their privacy rights!
This was a recommendation pushed by the government during hearings, and as “some members” of the committee noted, the concept of consent in the government context is essentially meaningless. Unlike the private sector, where there may be other companies willing and able to provide goods or services if you don’t like a company’s privacy policy, there is no where else to go for government services if you refuse to consent.
It is now up to the government to decide whether or not to take action on the committee’s recommendations. As the Legislature may not be back until 2011, they should have plenty of time to consider what to do about amending the Freedom of Information and Protection of Privacy Act.
The report is available here.
More coverage:
B.C. FOI committee recommends explicit right to electronic records
Chad Skelton, Vancouver Sun
The non-recommendations were the big news
Vaughn Palmer, Vancouver Sun