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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Commissioner Denham supports FIPA complaint on public interest information disclosure

BC Information and Privacy Commissioner Elizabeth Denham has found at least one Ministry has violated section 25 of the Freedom of Information and Protection of Privacy Act; that public bodies across the province seem unaware of their legal duty to release information relevant to public health and safety or environmental risks without a Freedom of Information request; and that the law should be amended “at the earliest opportunity.”

The Commissioner’s investigation was in response to a submission by the Environmental Law Clinic at the University of Victoria on behalf of FIPA. The UVic ELC set out a number of cases where public bodies around BC appeared to have disregarded their legal obligations under section 25 for years or even decades.

Section 25 of the Freedom of Information and Protection of Privacy Act requires public bodies to release information about risks to the environment and public health or safety, even if no Freedom of Information request has been made.

In a report released on Monday, Commissioner Denham found that the Ministry of Forests, Lands and Natural Resource Operations failed to carry out its duty under s.25 to release information about a failing dam outside Oliver BC, despite knowing about its possible collapse for decades.

The Commissioner’s office also conducted a survey of public bodies whose mandate could include releasing information to the public, and found not only did they generally not release information, but they didn’t even understand their legal obligation under the Act. She recommended that public bodies develop policies explaining to staff and management what their obligations are under the law.

Problems could be caused down the road by the Commissioner’s failure to find the law had been breached in the other cases we had brought to her attention. The law says public bodies must release information if there is a “risk of significant harm” to health, safety or the environment. However, in a case concerning SFU, Commissioner Denham found that even if the university ‘ought to have known’ about the risk of mould in one of its buildings, it didn’t violate the Act because it hadn’t actually tested for mould, despite having expert reports showing water damage and fungus. This seems to indicate that the level of risk has to be so high that it is almost a certainty before the duty to inform the public applies. We will respectfully disagree with the Commissioner on this point.

The question of ‘how high a risk?’ seems to be connected to the question of ‘how urgent a risk?’, which the Commissioner did address. In several of the cases the Commissioner was unable to find the public body violated the law because the issue was not sufficiently ‘urgent’. The Commissioner recommended that section 25 should be amended “at the earliest opportunity” to require public bodies to release information that is in the public interest even if it is not urgent.

Hopefully the BC government will take the Commissioner’s words to heart and bring in policies and legislation as soon as possible. It is not acceptable to put off something as important as public interest information disclosure until the next legislative review of the Act in 2016, the way they did to the Commissioner’s call for duty to document legislation.