NDP celebrates Liberal’s ineffective ‘Duty to document’

Image of Jinny Sims courtesy of BC NDP and used under CC-by-2.0

Vancouver, April 1, 2019A statement released yesterday by the Ministry of Citizens’ Services, which claims that “new legislative changes improve transparency and accountability for British Columbians,” is a significant misrepresentation of an effective duty to document and is a distraction from the pressing reforms that are necessary for BC’s Freedom of Information and Protection of Privacy Act (FIPPA).

Creating a legislated duty to document within FIPPA has been called for by an all-party Special Legislative Committee that reviewed the Act in 2016, and by Information and Privacy Commissioners David Loukidelis and Elizabeth Denham.

These “new” legislative changes that NDP Minister Jinny Sims is promoting were actually initiated by the Liberal party in 2017. At that time, FIPA issued a press release that called the Liberal bill “a sad excuse for action on creating a duty to document government decisions” in the wake of the Triple Delete scandal that revealed an organized campaign to destroy government records.

In fact, the NDP put forward a private member’s bill at that time that proposed an actual duty to document in comparison to the Liberal’s ineffective bill.

In a statement issued by the Ministry of Finance in 2017, Liberal Minister Michael de Jong had claimed that their ineffective bill would “formalize this good practice in legislation while ensuring that British Columbia remains at the forefront of information management with strong oversight and consistent practice across government.”

Now, two years later, NDP Minister Jinny Sims is claiming that the same ineffective legislative change also “formalizes government’s obligation to document decisions and helps ensure records of decisions are available and accessible.”

The statements from the NDP and Liberal MLAs, made two years apart, are remarkably similar and entirely misleading. FIPA wants to see the creation of a meaningful duty to document—more in line with what the NDP was proposing two years ago—which would include:

  • The creation of mandatory documentation procedures. A discretionary duty to document is not sufficient.
  • Clear oversight from the Information and Privacy Commissioner.
  • The legislative change should be to the FIPPA, which affects over 2,900 public bodies, not the Information Management Act, which merely affects 41.

Contact:

Sara Neuert, Executive Director

BC Freedom of Information and Privacy Association

Email: fipa (at) fipa.bc.ca

Phone: 604-739-9788

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BC Government says the magic word and documents disappear

What do you do when you want to make sure documents can’t be requested under freedom of information law? Well if you’re the BC Government, you need only utter one magic word: transitory.

Government policy states that a transitory record is one that relates to “temporary usefulness […] needed only for a limited period of time in order to complete a routine action or prepare an ongoing record” and such documents can be deleted.

However government officials have been taking a much more expansive interpretation of the meaning of the word, which may be one of the reasons that one in five BC FOI requests comes back with no records.

This disappearing act has been documented on the BC government’s Open Information website. In one apparently unsuccessful attempt to wipe the record, a senior bureaucrat instructs other officials (in red letters to emphasize the point) “…please delete all drafts of the materials and e?mail correspondence should be treated as transitory.”

But ‘transitory’ doesn’t mean whatever the government decides it should mean. In her 2013 report, Information and Privacy Commissioner Elizabeth Denham identified the misuse of the definition of ‘transitory’ as one cause of the disappearance of records, contributing to the scandalous rise in the number of FOI requests that came back with ‘no responsive records.’

Our experience with the Ministry of Health bears this out. A series of damning e mails about the Burnaby Hospital Consultative committee were leaked to the NDP last year, including one sent to former Health Minister Margaret MacDiarmid on her private e mail account, in violation of the law.

Expecting that the email should now have been put into the public record, we requested a copy, however the Ministry could not come up with the correspondence. The Office of the Information and Privacy Commissioner was told that the record had been deleted as because it was ‘transitory’.

Having seen a copy of the original email, we’re struggling to see what possible interpretation of ‘transitory’ could have been used to justify its deletion. The government is clearly abusing their own policies and even the English language to keep information from being released.

Federal NDP’s Position on ATI Reform

Jack Layton’s response on behalf of the NDP to FIPA, CTF, and Newspapers Canada question regarding the party’s position on access to information reform.

New Democrats are committed to improve the Access to Information system through a variety of measures that include increasing the powers of the Information Commissioner, speeding up the processing time of requests, allowing for online submission and retrieval of records and obliging public officials to create records necessary to their document decisions and actions.

New Democrats will reinstate the mandatory long form census.

Download the response (pdf).