On October 18, 2021, Hon. Lisa Beare, Minister of Citizens’ Services, introduced amendments to the Freedom of Information and Protection of Privacy Act (FIPPA) in Bill 22. On November 25th, 2021, the Bill passed and became law leading to the most substantive changes to FIPPA since its introduction.
Contrary to the purposes of FIPPA, the amendments reduced the transparency of public bodies and weakened privacy protections for British Columbians. The way in which Bill 22 was advanced and passed shows the government’s disregard for a transparent democratic process, going back on its commitments to accountability and transparency reforms. They ignored many of the key recommendations made by prior all-party Special Committees and Information and Privacy Commissioners.
BC’s Information and Privacy Commissioner, Michael McEvoy, raised several concerns about the Bill, calling it “a lost opportunity for government to promote greater accountability and transparency”.
Despite unanswered questions and concerns on Bill 22 raised by both Liberal and Green party members of the House, the government remained steadfast in pushing the Bill through.
The proposed amendments were contentious and prompted a great deal of discussion due to the Bill’s importance. There were multiple points of order raised and allegations of the Minister misleading the house. For a comprehensive summary of the debate on Bill 22, please refer to our Bill 22 Hansard page.
Bill 22 was problematic in its amendments, its omissions, and the lack of transparency in the way it was passed. Here are a few of the main issues FIPA and civil society identified:
New Rules Under Bill 22
Reduced transparency at the top level of government
Hidden amongst the changes, the government tried to remove the Office of the Premier and Executive Council Operations from the list of public bodies covered by FIPPA. The passed amendments eventually kept the Office of the Premier in the list but exempted Executive Council Operations from the coverage of FIPPA. The exact definition of Executive Council Operations remains unclear.
Imposition of application fee for filing Freedom of Information (FOI) requests
This seemingly inexpensive fee of $10 is the third highest in Canada. The fee deters people from making further requests when the government is irresponsive or delays response to an initial request and the cost is multiplied when one needs to request information from multiple ministries. The creation of the fee itself inconveniences FOI requesters by forcing them to have a credit card to access information that could have been made publicly available and the change creates a barrier for anyone without established credit or deep pockets, including high school and university student researchers, small media outlets, and marginalized social groups with limited financial resources.
Weakened privacy protection with the removal of the data residency requirement.
Prior to Bill 22, except under limited circumstances, public bodies were required to store personal information of British Columbians in Canada and grant access only to requests from within Canada. This requirement was consistent with more recent advancements in privacy law implemented in countries such as Germany, France, and Australia. Removal of the data residency requirement increases the potential for exposure of personal information held by our public bodies in foreign jurisdictions.
This is especially concerning when Canada and allies are advocating for an end to encryption through the use of backdoors. This means that any information held in those foreign jurisdictions that is currently encrypted may not have the same protections in the future. Despite increasing risks, the BC Government chose to remove the guaranteed protections that come with having your data stored only in Canada.
Prior Recommendations Ignored
Bill 22 ignored important prior recommendations by Special Committees, Information and Privacy Commissioners, and the Government’s own MLAs
Every six years, Special Committees have been appointed to review FIPPA in accordance with section 80 of the Act. Among the recommendations of previous all-party Committees was an expansion of FIPPA’s scope to cover the subsidiaries of public bodies. The committees also recommended steps to strengthen proactive and public interest disclosure. Neither of these suggestions were incorporated into the amendments.
Specifically, the 2016 all-party Committee was clear in its call for the government to create a legislative duty to document within FIPPA. The duty was raised by the previous government and former Information and Privacy Commissioner and is supported by the current Commissioner, yet Bill 22 ignored this important recommendation.
An enacted duty to document would require the government to proactively create and store records of government business. If records are not created, they cannot be subject to an access to information request.
The current Commissioner indicated that the Information Management Act (IMA) is not fit for ensuring the government’s compliance with the duty to document because the heads of government bodies are primarily responsible for ensuring compliance with the duty under that Act. The Commissioner also stated that the lack of authority of his office to provide independent oversight to the “vitally important duty to document” is “a significant shortcoming” of FIPPA.
The government failed to fulfil its promise to transparency and accountability reform
In 2016, BC NDP MLA Doug Routley introduced a Member’s Bill to reflect the parties commitment to increase transparency. The duty to document is at the core of this Member’s Bill but was not acted upon in Bill 22.
Bill 22 continues to enable the Legislature to operate “wood splitters” in the shadows.
The Legislature is currently not subject to any transparency law, including FIPPA, despite the government’s promise of transparency reform following the Legislature spending scandal and the subsequent recommendations in a 2019 joint letter from the Information and Privacy Commissioner, Ombudsperson, and the Merit Commissioner.
The Government’s Disregard for Transparent Democratic Process in the Passage of Bill 22
Lack of open consultation
Between June 15 and July 15, 2021, Citizens Services conducted an online survey to collect public opinion regarding FIPPA. The purpose of the survey was not disclosed, and many assumed that the survey was to inform the 2022 all-party Special Committee. FIPA’s view was that the engagement “creates the illusion of consultation, with more than a few leading questions.”
The government’s engagement summary shows that it focused on service modernization and privacy enhancement however, it did not focus on access to information as instructed in the mandate letter to Minister Lisa Beare.
The mandate letter not only calls to put people first, but specifically to “improve access to information rules to provide greater public accountability.”
The government was not transparent about the engagement and withheld release of information regarding the public consultation. Our organization, as well as others, were forced to make Freedom of Information (FOI) requests for the raw survey results to be free of Government editorializing.
Absence of Annual Reports
While the government claimed that Bill 22 amendments reflected a need for change revealed in the data compiled in the administration of the Act, the government and Minister hid the data that ensures transparency when the Minister failed to meet statutory requirements by releasing that data in an annual report.
Section 68 of FIPPA requires the tabling of an annual report. When the amendments were introduced, no annual report had been tabled for the past two fiscal years. On review, despite requirements, the Ministry seems to table reports at arbitrary dates, sometimes years after the year being reported on.
These reports are vital to gauging the effectiveness of the legislation; they enable everyone to understand how the Act is functioning and where the government is succeeding and failing.
Disregard for concerns raised by all members of the legislature and the transparent democratic process
On June 16, 2021, the Legislative Assembly agreed that a Special Committee must be formed to review FIPPA in accordance with section 80 of the Act.
While the Special Committee was formed, the government drafted and tabled amendments behind closed doors. As MLA Adam Olsen pointed out, “If this precedent is allowed to stand, there is a real threat to all work undertaken by committees, special or select standing, appointed by this Legislative Assembly to complete statutory obligations if the minister moves to amend legislation while a committee is still consulting the public.”
2021’s Bill 22 Battle