New on the Podcast: Information Laundering

As we learned in the first episode of Data Subjects, BC’s Freedom of Information laws were created in order to ensure that public records belong to the public, which is a fundamental principle to our democracy.

Citizens in a democratic nation must have a right of access to information about their government in order to make informed choices. But prior to 1992, we didn’t have these rights in BC. And now, we’re at risk of losing them again due to something called information laundering.

This episode is about a loophole in BC’s Freedom of Information and Protection of Privacy Act that allows public bodies to create subsidiary companies that are not subject to BC’s Freedom of Information laws.

First, we learn about how BC Ferries and BC Hydro used subsidiary companies with disastrous consequences in the 1990s during the ‘Fast Ferries’ and ‘Hydrogate’ scandals. Then, we hear from Larry Kuehn, of the BC Teachers’ Federation, and find out how BC school boards have misused subsidiary companies.

And finally, we hear from Stanley Tromp, independent journalist, and learn about his experience requesting information about one of UBC’s subsidiary companies, the UBC Properties Trust, and its consequences for health and safety on campus.

If you’d like to see information laundering as a thing of the past, please sign our petition and encourage the BC government to keep their campaign promise of protecting information and privacy rights in BC.

Support Information and Privacy Rights in BC

We’re calling on the provincial government to keep their promise

Earlier this month, we teamed up with the BC Civil Liberties Association and created a petition to encourage the British Columbia government to keep their campaign promise of reforming the Freedom of Information and Protection of Privacy Act (FIPPA).

This Act is as important today as it was when it was created in the early 1990s. It creates a legal framework that regulates how public bodies treat personal information and assigns information and privacy rights to British Columbians.

But in the nearly thirty years since the Act was passed, a lot has changed while the Act has stayed largely the same. Just think, the new technology at the time was the fax machine. The internet and our connected world has changed the way information is created, stored, used, and accessed. And our laws need to change as well.

The status quo isn’t good enough

Two years ago, during the campaign period for our last provincial election, we asked each political party about their plans to update BC’s FIPPA. We asked the New Democratic Party (NDP) if they would include a duty to document within the FIPPA and if they would create penalties for those who interfere with information rights.

In response to both questions, the NDP unequivocally committed to including a duty to document within the FIPPA, and to creating penalties for those who interfere with information rights.

Today, over two years later, we’ve seen no action towards realizing these commitments. In fact, while the government celebrated legislative changes to the Information Management Act as improvements to “transparency and accountability to British Columbians,” they were being accused of breaking the very laws they are mandated to uphold.

The Information and Privacy Commissioner for BC, Michael McEvoy, released this statement about the legislative changes to the Information Management Act and the serious accusations facing government:

‘As it now stands, the Information Management Act designates the Minister herself as primarily responsible for ensuring her Ministry’s compliance with the duty to document its decisions. Citizens would find it very surprising that, on its face, the current law makes a Minister responsible for investigating their own conduct. This is unacceptable and falls short of the independent oversight required to ensure public trust and accountability.’

The tragic irony of the situation seems to be lost on government. Serious accusations of wrongdoing, the kinds that have been recently levelled against a government Minister, cannot be appropriately investigated by that very same Minister.

If British Columbians are to truly have improvements to government “transparency and accountability” then what is needed is independent oversight. The FIPPA creates a regulatory framework within the Office of the Information and Privacy Commissioner, one that operates separately from government.

To keep its promise, and to truly increase “transparency and accountability to British Columbians,” the government must assign independent oversight to the Office of the Information and Privacy Commissioner by creating a duty to document within the FIPPA.

What is a ‘Duty to Document’?

A duty to document is quite simple and something that the original writers of the FIPPA did not think would be necessary to include in the legislation. It’s the idea that government must record their decision making process, which is fundamental principle to functional freedom of information laws.

For example, if someone were to request documents related to a new tax that government was requiring of citizens, that request would not be successful if no records were to exist. The duty to document would compel government to document their decision making process so that citizens can exercise their information rights, like the right to know.

The original lawmakers who drafted the FIPPA did not anticipate that government would hold meetings in person and over the phone without writing anything down (a phenomenon known as ‘oral government’), use personal email addresses to conduct government business, and maliciously delete records in order to circumnavigate freedom of information laws (a practice known as ‘triple-delete’).

But unfortunately that is now the reality in which we are living.

We are not alone in calling for a duty to document. The all party special legislative committee that reviewed the FIPPA in 2016 made the specific recommendation to include a duty to document within the FIPPA. That committee included BC’s current Attorney General, David Eby.

In addition, Information and Privacy Commissioners in BC have called for the inclusion of a duty to document within the FIPPA. Elizabeth Denham, in her report, Access Denied wrote:

‘Government should create a legislative duty to document within FIPPA as a clear indication that it does not endorse “oral government” and that it is committed to be accountable to citizens by creating an accurate record of its key decisions and actions.’

And BC’s current Information and Privacy Commissioner, Michael McEvoy, has written this:

‘It is time for government to amend FIPPA to ensure that the vitally important duty to document has the oversight of my office, which is independent of government. The public interest requires this’

Yet despite these calls, the government has failed to act on their promise to protect the information rights of British Columbians.

We need your help

So after two years of government inaction, distraction, and obfuscation, we are inviting the public to join our call for the government to keep its promise of reforming FIPPA. We have included four main points; the inclusion of a duty to document within FIPPA is just the beginning. Over the coming months, we’ll expand on the other points.

If you are interested to learn more about the FIPPA, and our role in getting the legislation passed, check out our podcast. We have an episode on the history of the Act and an episode on the duty to document.

But the most important thing that you can do, is to add your name to our petition and voice your support for the privacy and information rights of British Columbians.

Support information and privacy rights for British Columbians today

The time for information rights reform is here!

We are asking the BC Government to keep their promise.

Sign the petition for FIPPA reform today!

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.

Whistleblower Accusations Highlight Need for Legislative Reform

Vancouver, May 17, 2019 – Question period in the BC Legislature this week has been occupied by the accusations of a whistleblower who claims that the Minister of Citizens’ Services, Jinny Sims, has been using her personal email address to conduct government business in order to circumvent Freedom of Information laws.

This is particularly troublesome as Minister Sims oversees the administration of those very laws and made a public apology only one year ago for a similar indiscretion.

During question period this week, Attorney General David Eby stated that the Office of the Information and Privacy (OIPC) Commissioner was the correct place to investigate accusations of this nature.

However, a statement today from the OIPC indicates that they are unable to investigate these claims.

“The Minister’s alleged failure to fulfill her duty to document is not a matter under my authority,” writes Commissioner Michael McEvoy of the OIPC. “This is a significant shortcoming of the Freedom of Information and Protection of Privacy Act (FIPPA).”

Legislative changes that recently came into effect, which Minister Sims characterized as a duty to document, give Minister Sims—not the OIPC—the authority to ensure compliance.

“As it now stands, the Information Management Act designates the Minister herself as primarily responsible for ensuring her Ministry’s compliance with the duty to document decisions,” writes Commissioner McEvoy. “Citizens would find it very surprising that, on its face, the current law makes a Minister responsible for investigating her own conduct.”

The BC Freedom of Information and Privacy Association (FIPA) supports the Commissioner’s call for government to keep its promise of reforming FIPPA to include a duty to document that provides independent oversight so that citizens can be assured that government is accountable.

“John Horgan has promised FIPPA reform. He has promised that his government will do better,” says Sara Neuert, FIPA’s Executive Director. “The citizens of British Columbia need him to keep that promise. Including the duty to document in the FIPPA will build public trust by providing independent oversight.”

“The accusations of the whistleblower demonstrate that this isn’t happening fast enough and that we require timelines to ensure that John Horgan is keeping his promise. The time for action is now.” says Neuert.

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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