BC Supreme Court denies review of OIPC order on “advice” exemption – 18 Aug 2010

BC FIPA sought a judicial review of the order by the Office of Information and Privacy Commissioner of British Columbia dated January 27, 2009, (F09-02) regarding the scope of the exemption for “advice and recommendations” under s. 13(1) of the Freedom of Information and Protection of Privacy Act (FIPPA). BC FIPA did not agree with the adjudicator’s interpretation of s. 13(1) of FIPPA and argued that the adjudicator did not provide sufficient reasons for the decision.

The court, however, did not agree with BC FIPA’s position. It found that the adjudicator had not made a reviewable error and dismissed BC FIPA’s application.

Download the BCSC decision (pdf).

Docket S-097178
18 Aug 2010

B.C. Freedom of Information and Privacy
Association v. British Columbia
(Information and Privacy Commissioner)
2010 BCSC 1162 (CanLII)

Order F09-02
January 27, 2009
[2009] B.C.I.P.C.D. No. 3 (QuickLaw)
British Columbia (Labour and Citizens’ Services) (Re), 2009 CanLII 3226 (BC IPC)

BC FIPA Submissions on Review of Freedom of Information and Privacy Act

BC FIPA presented its submissions to the Special Committee to Review the Freedom of Information and Protection of Privacy Act (FIPPA) BC FIPA makes 20 recommendations for improving FIPPA which touch on multiple issues of concern.

Regarding freedom of information, there are two sides to a single existential coin. In order for the Act to have any relevance, on one side there must be an obligation to create records, and on the other side, records must not be destroyed without proper procedures being followed.

The issue of delay has long been identified as a problem with the Act and its administration, most recently by the Commissioner and by FIPA in studies done in 2009. Fees have also been used to delay or block release under the Act, or to discourage requesters.

There is also a need to prevent what we call ‘information laundering’. This involves public bodies hiding behind private contractors or corporations fully controlled by public bodies to avoid scrutiny of how they spend public funds for public purposes. A recent BC Supreme Court decision has made this problem into an emergency.

BC is far more accommodating to government secrecy than other provinces because of its courts’ interpretation of what constitutes information that would reveal cabinet confidences. Government has been working consistently to expand this interpretation.

The use of the exception for advice and recommendations under s.13 of the Act has become ever more prevalent and must be brought back within the scope the legislature originally intended.

Finally, the ability to release information in the public interest must be clarified. The current interpretation of this section is such that almost no information meets the standard, and we have some alternatives for this committee to consider.

On the privacy side, we have a number of concerns. The government’s almost unlimited ability to do what it wants with personal information within its control has to be restrained. New technology means that government’s ability to data match and data mine are no longer subject to technical constraints. We need legal protections that are currently missing from FOIPPA to keep this from happening.

There is now a gap between the protections enjoyed under the Personal Information Protection Act and FOIPPA, and that gap must be closed. In particular,the definitions of “consistent use” “collection” and disclosure” are too broad. In particular, section 34 should be amended to provide that the purpose of a use or disclosure of personal information is a consistent purpose only if a person might reasonably have expected such a use or disclosure.

Read the full submission (pdf).

Proposed Reforms to BC’s Freedom of Information and Protection of Privacy Act

BC FIPA has presented a list of 11 recommendations regarding reforms to BC’s Freedom of Information and Protection of Privacy Act (“the Act”).

These recommendations are our top priorities for reform and cover the following issues:

  • increasing routine release;
  • better principles guiding retention and destruction of documents;
  • restoring the coverage of the Act to all public and quasi-public bodies;
  • re-interpreting or expanding the public interest exceptions;
  • strengthening privacy protections;
  • narrowing the exceptions in s. 12, 13, 14, and 15 that relate to cabinet confidences, policy advice, legal advice, and harm to law enforcement; and
  • extending the time limit for appeals to the Commissioner

Read the full text of the recommendations (pdf).

BC FIPA proposes revisions to s. 13 of FIPPA after College of Physicians v. OIPC decision (the “Dr. Doe” case)

BC FIPA has proposed revisions to s. 13 of the Freedom of Information and Protection of Privacy Act in Response to the Decision in College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner) in its submission to the Special Committee to Review the Freedom of Information and Protection of Privacy Act (FIPPA).

Executive Summary

Section 13 of the Freedom of Information and Protection of Privacy Act permits an exception from access for “information that would reveal advice or recommendations be developed by or for a public body or a minister”. Until recently, it had been generally believed that “advice or recommendations” was limited to documents or reports that advocated that government choose a particular course of action or make a particular decision; in effect, “we recommend that you do this”, or “we advise that you do that”.

In the recent “Dr. Doe” case, however, the Sexual Conduct Review Committee of the College of Physicians was able to withhold from an applicant experts’ reports about whether or not she had been hypnotized. The Court of Appeal held that the s. 13 exception was not limited to recommendations as defined above; instead, the investigation and gathering of facts could be exempted from access pursuant to s. 13, regardless of whether or not any decision or course of action was actually recommended.

The result is a departure from the original intent of the statute. Applicants can now be denied access to a great variety of documents that would previously have been available to them. This will be the case even where the documents are about those applicants themselves and directly affect their interests.

The legislation should be amended to reflect the intention that the words “advice or recommendations” in s. 13 are limited to actually advising or recommending that government do something.

Download the full submission (pdf).