A small step towards open and transparent government
Vancouver, February 5, 2019 – The B.C. Freedom of Information and Privacy Association is pleased with the recommendations made by the province’s top watchdogs to bring the Legislative Assembly of B.C. under the Freedom of Information and Protection of Privacy Act(FIPPA).
Signed by Information
and Privacy Commissioner Michael McEvoy, Merit Commissioner Fiona Spencer, and
Ombudsperson Jay Chalke, the recommendations called for the Legislature to
“meet the same standards” that 2,900 other provincial public bodies are subject
the Legislature to freedom of information rules is a welcome sight, the move is
ultimately just one of the steps to a full reform that FIPA has been calling
for in the past two decades. “This is just one little piece of the puzzle and
there’s a whole lot of reform that we’re trying to get,” says Executive
Director Sara Neuert. “We continue to be in reactionary mode and we need to
move a step further and be proactive.”
recommendations will only act to prevent the exact same scandal from repeating
itself, more effective change would address a broader scale of freedom of
How the government’s action regarding the long-overdue FIPPA reform reflects our collective attitudes towards political issues
By Carlo Javier
We have an interesting relationship with our rights – especially those dealing with our freedom to access information and privacy. On one hand, conversations around such issues have certainly become more welcome in the general Canadian discourse, and on the other, conversations are ultimately just that – conversations.
I bring this to attention after quite an inspiring event took place at this year’s Right to Know Week. With the signed support of several important figures from Canada’s host of esteemed advocacy groups, the BC Freedom of Information and Privacy Association (BC FIPA) called on Premier John Horgan and Minister of Citizens’ Services Jinny Sims to immediately act on the long-overdue reforms for the Freedom of Information and Privacy Protection Act (FIPPA).
Said reforms reflect recommendations made by a review committee commissioned by the Legislative Assembly in 2016, and focus on four primary pillars:
To do away with an ‘oral government’ and implement a ‘duty to document’ under FIPPA’s jurisdiction, which would mandate government officials to maintain accurate and detailed records of their work;
To refine existing provisions – especially in sections 12 and 13 – and alleviate exploitation of loopholes;
To bring all subsidiaries of educational and other public bodies within the scope of the FIPPA;
To create real repercussions for government officials who impede freedom of information rights processes.
Notably, BC FIPA asked that the law reform be implemented before the next provincial elections (2021) and that the government commit to a tangible timetable.
In their official response, Minister Sims wrote that the government is “committed to openness and transparency” and that dramatic improvements on a legislation that dictates how the government handles and shares records cannot be done with haste. Furthermore, the response included that “updating policies, regulation and legislation” are necessary tasks prior to any actual reforms. While there is no mention of the requested timetable, Minister Sims did note that feedback from their consultations with both internal and external stakeholders should arrive in the “coming months.”
The response may seem like a strategic communications reply, but it is progress nonetheless.
Among the most resonant parts of BC FIPA’s letter to Premier Horgan and Minister Sims was a critique on how government bodies tend to react to inquiries that challenge their stance on transparency, accountability, and the right to know. For the most part, responses will be rich with endearing and supportive messages of hope and promise, but empty of meaningful and substantive action – the things that lead to actual legislative changes.
One of the signatories of the letter is Toby Mendel, Executive Director of the Centre for Law and Democracy. Toby reiterates a critical view of the government’s commitment to FIPPA reform, noting that although politicians may be keen on discussing their priorities, “concrete promises to take action” don’t exactly come as often.
“Unfortunately, Minister Sim’s letter falls precisely into this talk without walk category,” he says. “She speaks eloquently about the importance of transparency and notes that her government is ‘examining’ practically every aspect of this issue, but significantly fails to actually promise anything. We do not need another examination.”
In fairness to the government, the delay could very well be attributed to the possibility of including privacy matters and the Personal Information Protection Act (PIPA) to any impending reform. Such reasons would certainly be understandable considering the gravity of the act, but if the delay is ultimately just a means to stall, then it is only right for us to expect and demand for better.
According to Toby, FIPPA has been researched exhaustively and its shortcomings are all abundantly clear. BC’s FIPPA is especially lacking, scoring just 97 out of 150 in its Right to Information (RTI) Rating – putting it 14 points behind Canada’s top scoring jurisdiction in Newfoundland and 43 other countries around the globe.
By no means do I intend to be scathingly critical of government action or inaction, but what I can be critical of is how such attitudes – which some might even describe as bordering on apathetic – are eerily reflective of our collective mentality as citizens.
We deeply value our ability to protect our digital privacy and our right to access information. So much so that conversations within these issues are no longer happening exclusively among privacy and FOI advocates, but the general public, too. Just this year alone, we saw considerable uproar after Facebook came under fire for security breaches and data harvesting. The same reaction was directed to Air Canada and Statistics Canada after their own respective security and privacy practices became subject to controversy.
Maybe BC FIPA’s critique on government can be applied to society as well, speaking on transparency, accountability, and the right to know is one thing, but meaningful action is another.
It is baffling how these issues have so provocatively permeated the public discourse, yet meaningful progress have been so stagnant. The issue could be with how we see and accept the realities of our rights. Ideas that feel so personal and so close to home are infinitely more accessible than any acts and legislation full of legalese and political jargon. I have only been with BC FIPA for a short period, but I have seen the depth and the magnitude of our rights to protect our privacy and our rights to access information.
The two intrinsically linked ideas may seem inherently about the digital world, but it is a tremendous understatement to say that they are much more than that. FOI and privacy are our couriers to a true democracy. They are among the institutions that keep us well-informed and equipped to participate in the political environment. Nothing captures this notion better than the revelation that data collected through Facebook was used to manipulate voter choices in the 2016 US Presidential Elections and the Brexit campaign – two incidents that feel nothing short of violation of democratic rights.
BC FIPA’s letter to Premier Horgan and Minister Sims ends with the suggestion that quickly acting on the FIPPA reform will give the government an opportunity to exhibit “true leadership.” And if the government were to provide these reforms with the promptness and effort it deserves, maybe that approach will reflect itself in us too, as citizens, and as members of an informed society.
Actions speak louder than words and you don’t have to wait for legislative reform to take action, click here to exercise your democracy now.
Carlo Javier is the new Community Awareness and Outreach Coordinator at BC FIPA. He is a graduate of Capilano University’s School of Communications and is the former Editor-in-Chief of the Capilano Courier.
Access in the Academy, developed by the Freedom of Information and Privacy Association and Mike Larsen of Kwantlen Polytechnic University (Instructor, Dept. of Criminology), and generously funded by the Law Foundation of British Columbia, is a brand new educational resource that provides a unique and practical look at how researchers, students, and others in the higher education can make the most of FOI and ATI practices.
Although they shed valuable light on just how public records are produced, managed, and distributed (or withheld), FOI and ATI remain a rarity in the university classroom. This resource hopes to change that. By outlining the general contours of our federal and provincial access regimes and by providing strategies for how to incorporate both into your research designs, Access in the Academy makes a much-needed and highly accessible contribution to the Canadian legal research landscape.
Written by one of Canada’s leading FOI and ATI researchers, produced by Canada’s only non-profit organization solely dedicated to protecting and advancing the information rights of citizens, and extensively reviewed by a diverse team of information experts, librarians, advocates, educators, and students, Access in the Academy is a valuable addition to any research syllabus.
For more than twenty years, the B.C. Freedom of Information and Privacy Association has relied on the support of our community to provide resources, educational programming, and one-on-one advice. By making a contribution to the Association in exchange for this resource, you’re helping us provide another two decades of service to Canadians and supporting more publications like this in the future. There is no minimum donation amount. Every bit helps.
Click here to make a donation. We hope you consider supporting the Association, but more importantly, we hope you find Access in the Academy a valuable and practical addition to your research activities!
About the Author: Mike Larsen is a Professor of Criminology at Kwantlen Polytechnic University. He is also Co-Managing Editor of the Journal of Prisoners on Prisons (jpp.org), a prisoner-authored and peer-reveiwed journal dedicated to experiential narratives and analysis related to spaces and practices of incarceration. His current research draws on a case study analysis of the Canadian security certificate regime to explore issues at the intersection of national security politics and contestations around access to information and secrecy. Mike has recently compiled an edited volume (with Kevil Walby) called Brokering Access: Politics, Power and Freedom of Information in Canada (UBC Press, 2012). Other forthcoming works discuss systemic access to information requests as a research technique for critical social science and questions of accountability and transparency related to collaborative security practices.
Let us know what you think: If you have comments, questions, or concerns about Access in the Academy, please send them to FIPA at firstname.lastname@example.org.
BC FIPA’s intervener’s factum in SCC 34828 (case docket at SCC website). BC FIPA takes the position that greater deference to the adjudicative tribunal should have been taken by the lower court and that
“access to information legislation, such as in Ontario and British Columbia, fulfils a particularly critical role in nourishing our democracy. It creates specialized tribunals, which are independent of government, yet which enjoy quantitative and qualitative experience with the workings of government. The Commissioners are officers of the legislature and are undeniably expert as concerns the interpretation and application of the various exceptions to access rights.”
Administrative law — Freedom of information — Exemptions to disclosure — Advice or recommendations of public servant — Adjudicator erring in finding that s. 13(1) of Freedom of Information and Protection of Privacy Act only applies where there is evidence that information in records actually went to final decision-maker and only applies to suggestion of single course of action ultimately adopted or rejected by decision maker — Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 13(1).
The requestor sought records relating to advice to the Minister of Finance leading up to a decision by the Minister about the effective date of certain amendments to s. 2 of the Corporations Tax Act, R.S.O. 1990, c. C.40. The adjudicator held that [page758] s. 13(1) of the Freedom of Information and Protection of Privacy Act, which gives the Minister the discretion to refuse to disclose a record “where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by the institution”, did not apply and that the requested documents should be released. The Divisional Court upheld that decision (except in one respect). The Minister appealed.
Held, the appeal should be allowed.
The adjudicator made two fundamental errors in her interpretation of s. 13(1) of the Act which led to an unreasonable decision. The first error was in holding that there must be evidence that the information in the records actually went to the final decision-maker. Section 13(1) protects the deliberative process. Advice and recommendations in drafts of policy papers that are part of the deliberative process leading to a decision are protected by s. 13(1). The evidence in this case was overwhelming that all of the records sought were part of the deliberative process that led to a decision by the Minister, based on the advice and recommendations in the records. The second error was in holding that s. 13 only applies to the suggestion of a single course of action ultimately adopted or rejected by the decision maker. Such an interpretation would denude s. 13(1) of any real meaning and was unreasonable.