Freedom of Information and Protection of Privacy Committee -- Issue No. 5 -- Tuesday, January 20, 2004

2003 Legislative Session: 4th Session, 37th Parliament
SPECIAL COMMITTEE TO REVIEW THE
FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT
MINUTES AND HANSARD

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO REVIEW
THE FREEDOM OF INFORMATION AND
PROTECTION OF PRIVACY ACT

Chair:	* Blair Lekstrom (Peace River South L)
Deputy Chair:	* Mike Hunter (Nanaimo L)
Members:	* Bill Belsey (North Coast L) * Harry Bloy (Burquitlam L) * Jeff Bray (Victoria–Beacon Hill L) * Tom Christensen (Okanagan-Vernon L) * Ken Johnston (Vancouver-Fraserview L) * Harold Long (Powell River–Sunshine Coast L) * Sheila Orr (Victoria-Hillside L) * Barry Penner (Chilliwack-Kent L) * Gillian Trumper (Alberni-Qualicum L) John Wilson (Cariboo North L) Joy MacPhail (Vancouver-Hastings NDP) * denotes member present

B. Lekstrom (Chair): Well, good morning, everyone. I would like to call the committee meeting of the Special Committee to Review the Freedom of Information and Protection of Privacy Act to order. I would like to welcome everyone here this morning. Particularly, I would like welcome our first presenters, Irene and Henry Layzell, who have taken the time to drive down from Courtenay, I understand. I thank you for the commitment you've made to address our committee here this morning.

My name is Blair Lekstrom. I am the Chair of the committee, and I am the MLA for Peace River South. Dawson Creek is my home. As well, this is an all-party committee of MLAs. I've just received a call from Joy. She is fogged in, in Vancouver and unable to attend today. She will review what has taken place through the committee hearings, though, as everything that is said is recorded by Hansard and transcribed.

Our job is to go out and listen to British Columbians on what they view is taking place with this act — if there are ways that it can be enhanced, if there are particular sections of interest that people have dealt with through their own personal involvement or so on. It certainly is one to have an open discussion, a comfortable discussion on, so that we as a committee can learn and hear from yourselves as to what you feel has worked or what hasn't worked.

Having outlined that, we will as a committee, following our hearings, put together a report. We are a legislative committee, and that report will be presented to the Legislative Assembly of British Columbia in the spring sitting this year.

I thank each and every person for taking the time. Not only do people have the ability to come and address the committee in person but, as well, through written submissions. We look forward to receiving many of those as well.

With that, at this time I would ask Irene and Henry if they'd like to come forward to address the committee. Again, I would like to welcome you. It definitely shows your commitment to the process — taking the time to drive down and see us here today. So thank you.

H. Layzell: Good morning, ladies and gentlemen. As you know, my name is Henry Layzell. We have an issue to address — obviously personal, because we don't know all of the Freedom of Information Act. But this, we feel, has affected us greatly, and I certainly hope you'll listen to it. We prepared something, and my wife is about to read it to you. I leave it in your good hands to listen and maybe think about it. I thank you very much for the opportunity to come down here and be able to address you all.

I. Layzell: Good morning. I'm Irene Layzell, as you know. I want to bring up that my son, three and half years ago, was involved in a serious motor vehicle accident. During his recovery a psychological report was completed on him to assist him in his personal injury claim. Recently he obtained a copy of this report. After reading this, I noted a statement, and it says: "Mr. Layzell's mother evidently has a history of a breakdown and has been treated with lithium in the past." Since my husband and I had never been interviewed by this psychologist or, in fact, had never even met her, I wrote a letter requesting the origin of this information — whether it was written or oral.

I have a letter from my family doctor which states that he has been my doctor since 1996, and it reads: "My record indicates no history of the use of lithium in this woman. Since I have known her, she has also not been treated by me for breakdown." The reply that the psychologist addressed to my son, from this letter that I wrote, advises: "The family medical history contained within my neuropsychological report was based upon information reported within such interviews conducted during the process of the evaluation." The letter also goes on to say that the evaluation was intended for a personal claim settlement only, but unfortunately some of this information has been quoted in an access custody report. This second report, put out by another psychologist, includes this misinformation about me, plus another which accuses that my husband and I physically abused our children when they were young. This is totally untrue.

Because of these statements, my husband and I have not been allowed to see our youngest grandchild for over two years unless we are supervised. I would like to clarify: are psychologists allowed to make hearsay statements in their reports and bring them to the court? If so, I feel very strongly that my privacy has been violated.

The second point is: when these statements are made, are they not obligated to disclose the source of the information they have in order that we can dispute it? If not, then once again I strongly feel that my husband and I…. Our freedom of information has been breached. Thank you.

B. Lekstrom (Chair): Thank you very much, Irene. What I'm going to do is look to members of the committee for any questions regarding what you have put forward here this morning, and then have a dialogue between the committee and yourselves, if that's fine. I think we want to be as comfortable as we can. A committee meeting sometimes seems intimidating, but it is no more than an open dialogue between our group and yourselves.

B. Penner: Thank you, Mr. Chair, and thank you, Irene and Henry Layzell, for your excellent presenta-

tion. It was very concise and clear. Certainly, please accept my apologies for what obviously is an injustice that has been perpetrated upon you.

I. Layzell: Well, he's doing very well. He'll never walk again, but he is doing very, very well. He's driving now; however, he is depressed. Because of this accident, his wife couldn't live with him. I guess it was too upsetting for her to be looking after a man that was physically injured when he had been a strong, healthy man before. I guess she just couldn't face it. Of course, after a while she left and took the little boy with her.

Up until that time I had — personally, myself — a very, very close contact with my little grandson. In fact, the neighbours used to laugh at me because…. I know this is sort of a personal thing, but I would be out on my driveway, and I'd play hockey with him. I used to say to him: "You know, Ben, we have to play by the NHL rules. We can't just play. We have to do it properly." I'd make him put the puck down, and I'd say: "We have to do this properly, Ben." He was so interested. He just loved hockey. Therefore, I used to go out and play with him, and he always used to say: "Come on, Nanny. Outside. We're playing hockey."

I had a really, really close contact with my little grandson, and I must say that I haven't seen him. Apart from this second psychologist, which was about six months ago, that was the first time I'd seen my grandson in two years. It's very hurtful. When you love your grandchildren…. We have two other grandsons, and we love them so much. I have been taken away and not even been allowed one visitation right. It's because of this — where it says that I have had a breakdown, and I have been on lithium. It's completely untrue, which my doctor has proven by the letter that he put out.

Therefore, I feel that my freedom has been taken away from me, as far as seeing my grandson is concerned. I've tried to get hold of the person that gave them this information on me, and they've refused to give it to me.

B. Penner: Just to follow up, Mr. Chair. Can you tell us the date of the original report that you've referred to by the first psychologist? And what is the name of that first psychologist?

I. Layzell: Yeah. Are we allowed to give that? I mean, I don't want to put anything against these psychologists. I just want to make sure that the procedure, the code of conduct, is the proper, just way of doing a report.

H. Layzell: I might add that I've filed an official complaint with the College of Psychologists, but like everything else, it can take up to three months for us to get an answer.

The first report, which was an excellent report…. Incidentally, our son was hit head-on on the highway. He had our 20-month-old grandson with him. The other man died. He'd ODed on cocaine and crossed the line. Our son will never walk again. However, it's getting away from the actual point here.

The first report — and I quote: "Medical history. With regard to familial history of significant medical or psychiatric illness, Mr. Layzell's mother" — my wife here — "evidently has a history of breakdown and has been treated with lithium in the past." It's not true.

Basically, what it is, this report here…. I had to write in my son's name, because she wouldn't deal with us. My son has suffered four strokes, incidentally, and I've done a lot of his paperwork. When we wrote in my son's name…. Obviously, she's refused to give us the source, the origin, of this remark. I told her: "I'm not writing you to compromise you in any way. All I need to know is who said these things about my wife." Of course, we don't get an answer to that.

These documents are going to be used in court eventually, and this is going to be stated. Now, the follow-up report from another psychologist used this information, once again, and shouldn't have done anyway, because the first psychologist states in her letter that her report was to be used for settlement only.

Now, these documents…. We know our ex-daughter-in-law, if you can call her that, has got this report. Her family has seen it. It's so scurrilous, because it's not true. We want to know why we can't get to the…. Our freedom of information is being breached. We should know who said this about us, because we need to defend these remarks. We have a letter from our own doctors, as we've already said. Can we get this under the Freedom of Information Act? Will people be allowed to obtain this sort of information from the medical profession?

Secondly, on the privacy, are specialists allowed to document details about anyone without speaking to them? She never spoke to my wife, never spoke to me. She has simply put in there…. We don't know the origin. We have a feeling it's our ex-daughter-in-law, and to me that smacks of hearsay. I could sit here and call you a dunderhead all day.

B. Penner: In any event, in a past life I did practise law, as did Tom Christensen, and I suspect he'll have something to say. I suspect if this report were to be relied on in a court process, it would be subject to cross-examination. The psychologist — it's up to you whether you want to name her or not — has obviously said things about you that you feel upset about. She would be subject to cross-examination, and she could be asked on the stand, under oath, for the basis for her report and where the comments came from.

I. Layzell: Can she also be put on the stand against this…? It's a lie. How would she ever know what we were like as parents when they have no contact? They don't know what we were like as parents, and we have never physically abused our children — ever. That really upsets me, because as a mother I really resent the fact that someone is saying we physically abused our children. They have absolutely no right. I'm fairly strong about this. Who has the right to say a detrimental, damaging thing that is going to be presented in court on how we were as parents? I can tell you honestly that we were very good parents.

Not putting a cap on my head, but I know I was a darned good mother. I strongly resent anyone that would say I ever physically abused my children. I stayed home and looked after my children. I never went out to work. I was a full-time mother, and I spent a lot of time with my children. I do resent that someone can say those terrible things about us as parents when they don't know us, they have no knowledge about us, and they can tell complete lies about people they've never met. I think that's totally an injustice, and I definitely feel something should be done to stop people from writing untrue things like that when they've never even met the person. I think something should be done about that.

B. Lekstrom (Chair): Irene, I thank you for that. I can tell you're very passionate about it, and I think each and every person would be in dealing with a situation like this. I do have a number of members of the committee wishing to ask questions. I'm now going to move to Sheila Orr next.

S. Orr: First of all, I want to thank you for coming. Obviously, you emigrated to this country, and you've made a life here. What you have gone through, I can tell, is extremely frustrating for you.

Actually, Barry asked a lot of questions that covered some of my points. You have other children?

H. Layzell: Yes, we do. I'll interject here. Whilst our youngest son — and they don't know how he lived — was in Vancouver General, we got a call from Nanaimo from our other daughter-in-law. This was two months after the first injury. Our eldest son — this is his jacket that I so proudly wear — is a firefighter in Nanaimo. They were fighting a three-house blaze at two in the morning. He was on the roof of one of these big houses. They didn't see him in the smoke, swung the big hose round and blew him right off the roof.

You would not believe the last five years of this lady's life and mine — fighting for our sons, Workers Compensation. They cut him right off. He landed right on his head. His helmet was in pieces. He's back now, but he'll never be the same man. He's back at work. You would not believe the fights that my wife and I have had with the medical system and the judicial system of this province. It's been incredible.

S. Orr: And a daughter. How did they feel — other than the fact that one son now was in the accident, and your other son obviously had a very severe accident — about all of this? I mean, you must all talk as a family.

S. Orr: What is the feeling amongst you as a close-knit family about what's going on? How do your children…?

H. Layzell: Well, of course, they think it's terrible, but you see, it's so difficult here. We're here to address privacy and access of information, which I feel part of this concerns. A lot of this other stuff now that we've been through is not addressing this issue here. I could bring all of that up, but you're not here to listen to that.

S. Orr: I just want to say one thing quickly. First of all, it's amazing what one comment can do, and obviously it's had a huge impact on everything that's going on in your lives. I just wanted to say that hearing your story…. I mean, you're right. We are actually here to

review the act, and so we have to look at the context of what we're reviewing. Your story has really helped that. All my other questions actually have been asked by Barry, so I'm okay for now. Thank you.

Possibly just a quick question before I go on to other members of the committee. Have you applied under the freedom of information for access to the information you've required?

H. Layzell: …and we thought, boy, this might be an opportunity to learn something and maybe have something done. You see, we can't write to this psychologist — at least I don't feel at this stage — and say: "You give us this information or else." As I say, I have written a two-page letter to the College of Psychologists outlining all of this, and they told me that it would take between one and three months to reply. I've had a reply, but to accomplish whatever decision. Now we're sitting back waiting.

In the meantime, we saw this in the paper and thought maybe we could at least get some of our story out — that if someone goes to a psychologist or psychiatrist in the future and inflammatory remarks are made in a report, at least they can get the origin. Who said this? Who wrote this about you? I'm sure, at this point in time, the psychologist won't tell us. Of course, if they don't, then I don't know whether you start this business of litigation and everything else — slander, you name it. I don't feel young enough and old enough to go through that stuff anymore. I've been fighting too long for my two sons. It gets extremely difficult.

B. Lekstrom (Chair): Well, definitely, Henry and Irene, following the presentation, I will go over the ability for you to access that under the act, under section 5 — how the process works — so we can give you that information definitely as well. All right?

B. Lekstrom (Chair): I do have a number of other members wishing to ask questions. I will go to Gillian Trumper next.

G. Trumper: Thank you for making the trip down today. You've obviously had a very difficult time, and I'm glad somebody asked you whether you had gone through the freedom of information to get that information. What you have done — and obviously a very difficult story for you, very difficult time — has certainly raised a very serious issue with freedom of information, which was raised yesterday, that I have concerns about on the implications that the misuse that the freedom of information has and the implications that they can have in the long term.

I know it's been very difficult for you to publicly come and talk today about the issues that you've been dealing with. I really do thank you for that, because not many people would do that. It certainly, I think, brings home to us as the committee an issue that we have to look at — to have a balance between what does take place with the freedom of information and the necessities for information to be revealed to a source or not to be revealed to a source. I think that's a huge issue that we are going to have to deal with and make some recommendations.

I do wish you well and certainly wish both your sons well in this very difficult time. Really, you have raised an issue that I have, and have had before, some very grave concerns about — where information goes, particularly in the health system. Thank you very much.

I. Layzell: Thank you. I know psychologists, especially when they're doing these S-15s, which is what the second psychologist was doing…. My son paid through the lawyer for this S-15, which clearly shows a very biased attitude. I mean, she never even interviewed us. We picked her up in our car. She came from Surrey. We picked her up in our car from the airport and took her over to our son's house. During the time she got into the car, which was less than five minutes after she got in the car, she turned around — I was sitting in the back — and immediately turned to me and said: "I have two issues I want to deal with you." I was taken aback. I mean, here we are in the car. I didn't expect this. She said: "I have two issues. One is that you have been spanking and smacking your grandson. The second issue is that you've been talking in a malign way about his mother."

I couldn't even answer that, because it just shocked me too much. For one thing, I hadn't seen my grandson in two years, so how could I have been talking in a malign way about his mother? To say that I smacked my grandson, which I've never done, I thought was very unprofessional, to say the least. As far as that interview went, it was from that car to my son's house, and that was the interview. She didn't give us any more time. We asked her if she'd like to come to our home and interview us properly. She said: "No, that's not necessary."

My son paid for this psychologist, by the way. She's written all these things about us but never really interviewed us. How can she have the right to do these things? Where does the code of conduct come in? How far can they go, and how much can they say which is

within the law? Are they going against the law, bringing up information that they don't really have? They've never asked permission to use this, and at the same time they're writing from what other people are saying, not from facts. I think that really, as far as I'm concerned, is not justice.

B. Lekstrom (Chair): All right. I will move to our next member of the committee wishing to ask a question, Mike Hunter.

M. Hunter (Deputy Chair): Irene and Henry, thank you. I know it must be difficult for you to relate to a bunch of strangers these very difficult personal circumstances. I'm a grandparent, as a number of us around this table are. I think I would say, on behalf of grandparents, that I certainly sympathize with the situation you find yourself in.

As you know, this isn't a court of law, so there's nothing we can do, I don't think — and I'm not a lawyer either — to give you the kind of answers you're looking for. But from my perspective, your experience is important so that we know where the shortfalls in the existing act might be so that other people don't go through what you're going through. To me, that's not the most important thing today — what you're going through is — but I want to try and draw some lessons from this, so if you can help me do that….

There's one question that I have, and it comes from a remark, Irene, that you just made. You said your son paid for the psychologist's report that was the second psychological report done on him. Who did the first? Was it ICBC, or was it your son?

H. Layzell: The first report was done through…. It got a little more complicated. I understand that this isn't a court of law. As I pointed out before, we just came here to find out about privacy. Can someone…? I don't care how many diplomas they have. Why should they be allowed to put in writing something that is detrimental to a person that didn't come from that person or someone else in the medical field? If she had a certificate from a doctor to say that he treated my wife for a breakdown and had treated her with lithium, that's fair game. But as far as I'm concerned, when you ask for source of information and someone refuses to give it, then to me they've got something to hide or, if you'll pardon me, they're just trying to cover their butt.

M. Hunter (Deputy Chair): Mr. Layzell, the reason I ask the question is — and it's important from the process point of view — that if it was ICBC, which is a public body, that issued the report, then there might be avenues for you to pursue that would be different than if this were a private report done on behalf of your son.

H. Layzell: The second report was done because my son is trying to get access to my grandson, so he, on the advice from the lawyer, hired this other psychologist to do an access custody report. He paid over $5,000 for that. Then this point was raised about my wife, which was followed up by the second psychologist. That's where the proverbial hit the fan. How can these people, regardless of their profession, write down things about someone else that aren't true? You don't know where they're going to end up. In our case, if this hadn't gone on to where it is, where my son is fighting for access to his son, we probably would have ignored all of this. Now, it becomes very important, because it's going to be used in a court of law before a judge. It's going to…. Yeah, well, why not? This woman shouldn't be seeing that boy. She breaks down, and she's being treated with lithium. When it comes to me, what they've put about me is that I have undisclosed medical problems. I had a hip replacement. We're not allowed to drive our grandson. We both have licences. I've just renewed mine.

So this goes further, once you get involved as we are in a case. You can say things about someone. They're put down in black and white. I can assure you, ladies and gentlemen, if you read this report, you would never let my wife or me see our grandson unless we were supervised. Look at us. But I guarantee that if you read that report: "Boy oh boy. Yeah…."

It's terrible, absolutely terrible. This is where we feel our privacy has been invaded, by the fact that it's virtually been published now — untrue statements. We feel that our freedom of information has been violated, because they won't tell us who said these things. So how do we defend that?

I. Layzell: It's almost like a man that's been accused of murdering and has been found innocent years later. That's what this is really all about. We have been made bad parents and bad grandparents, and we're totally innocent. How can we fight these lies? We're up against a brick wall trying to fight just so that we have the normal rights of every grandmother and grandfather — good grandparents. Those rights have been taken away from us by lies.

I feel that our freedom and our privacy have been taken completely away from us. We've lived in Canada 50 years, and we've brought up three decent people in our lives; yet we feel we're treated like we're the riffraff and the worst people by these reports. You would think, reading them, that we were terrible, horrible people. People reading that, not knowing us…. We would not be fit to look after our own children and

certainly not fit to look after grandchildren. It's so completely untrue. We have to fight these lies.

B. Lekstrom (Chair): The issue, Irene, as was pointed out by Mr. Hunter, is: who is covered by this? The College of Psychologists of British Columbia does fall under schedule 3 of the act. As I indicated earlier, after the presentation and the questions being asked, we will put the information together for you and discuss it as to how you would proceed under the act for a freedom-of-information request.

T. Christensen: Most of the questions have been well canvassed. There were only a couple of things I wanted some clarification on, and it comes to the heart of what legislation might or might not help in your circumstances.

I want to clarify it in terms of the answers you gave Mr. Hunter. The first report that ICBC paid for…. Do you know whether, at the time that was commissioned, your son had a lawyer that arranged for the report of ICBC, just to put the bill…?

T. Christensen: In either case, with either psychologist's report, I'm assuming neither psychologist was employed by a government-type body. They were each in private practice, as far as you're aware?

T. Christensen: The further question was: do you know how the second psychologist that was preparing the custody-and-access report got a hold of the first psychologist's report?

H. Layzell: And this is where we find…. We could be wrong; we're not experts. We just feel that if something, in my book, is slanderous — said about someone — they have the right to know who said that about them. I said to a friend of mine who's a teacher: "You know, I could come to your school and stand there waiting with some of the mothers and simply say, 'Hi, did you hear about that Mr. So-and-so, the teacher in grade 4? I hear he's been sort of messing around with the kids.'"

That's all I have to say, and I walk away. I said: "You know what would happen to you? The next thing you're before the school board and blah blah blah…." This is exactly what this is; this is hearsay. All we want to know is: do we have the right to ask this psychologist — who we've already asked: "Who told you this? Don't tell us you gave interviews. We know that. But who told you that my wife had this condition?" That's all we ask, so we can then address that. I told her she gave an excellent report — which she did — on my son, on his injuries. It was excellent. It was just that one point.

What, of course, has muddied the waters is that the second psychologist has used it now, in a custody-and-access case. She clearly states in her letter it shouldn't really have been used because hers was a settlement one, and away we go. Now we're getting into all of this.

B. Belsey: Thank you, Mr. and Mrs. Layzell, for joining us this morning and sharing your concern with us. As was pointed out by my colleague Mr. Hunter, we are trying to work with a piece of legislation to try and ensure that it is balanced forthwith and serves people such as yourselves. What you bring to us today certainly assists in that process, and we very much appreciate it.

As for answers directly to your questions or concerns or your specific issue, it's very difficult for us to provide those answers. I did hear you mention that you're here to learn about the process and how it can work for you, so I would just like to suggest that there are some organizations out there — fortunately, yesterday we had a presentation from a couple of organizations — that do take a look at freedom of information and protection of privacy. I just thought I'd pass that on to you. One of those organizations is the B.C. Civil Liberties Association; the second one is the B.C. Freedom of Information and Privacy Association. They are two organizations. I'm sure we can, through the Chair, provide you maybe with names and addresses of those two organizations.

There is also the act itself. I don't know if you've had an opportunity to get a copy of it or to read it. I'm sure we could provide you with a copy of that act for your own perusal at some time. Also, there's the fourth option that I guess you have. That is the freedom-of-information and protection-of-privacy commissioner, who is appointed through the government, Mr. Loukidelis. He is another source of information, through his office, that may be able to help you on this difficult road you're on to get the information you're looking for and deal with the issues you're faced with. I can certainly work through the Chair to make sure that information is made available.

B. Lekstrom (Chair): I will look to members of the committee if there are any further questions of either Mr. or Mrs. Layzell. I see no further questions from members of the committee.

Again, I want to thank you for coming down and sharing your experience. We will do our best to certainly take the life experiences we hear as committee members to review what we can present to the Legisla-

tive Assembly to make the piece of legislation that benefits all British Columbians better. I think the job of all governments and government committees is to enhance what we have and make it better usable for the citizens of British Columbia. Once we have completed hearing from yourselves — we're wrapping up now — I do have some information we have put together already for you to help you through the process and hopefully give you some guidance as to how an FOI request can be followed through on through the commissioner, and so on.

B. Lekstrom (Chair): With that, again, I thank you for coming down here and sharing your experience with us, and I wish you all the luck.

H. Layzell: My wife and I really thank you. You know, sometimes life gets very frustrating. Without people like you good people in public life — if you'll pardon me for saying — bringing yourselves down to our level and looking at these things…. I don't think any one of you would have liked to have been in our position. Then you're fighting bureaucracy all the way through. To be able to have a chance to come before almost the Legislature, as far as we're concerned — you're all MLAs — and be able to talk to you and you listened to us…. We certainly understand where at times things can't be done — it's a tough life — but at least you've listened to us, and you understand. My main concern is that I really don't think anyone should be able to put in writing something disparaging about someone else and it be used against them, as it is with us, when it's untrue.

I do thank you for listening to us, all of you. I wish you all the best in the next election. What can I say?

As the agenda is before us, that is the conclusion of registered presenters today. I would ask if there's anybody in the audience that would like to present to the committee. They could come forward. Failing that, we will look to recess the committee until 2 p.m. this afternoon, at which time we will reconvene as we are advertised to go until 5 p.m. today, in case there are walk-ins — people that have an interest in this issue to be able to come before the committee.

B. Lekstrom (Chair): Well, good afternoon, everybody. At this time I would like to reconvene the Special Committee to Review the Freedom of Information and Protection of Privacy Act. We had recessed earlier after hearing from the witnesses. We do have a witness to present to us this afternoon.

At this time, I would ask you to come forward and address the committee. We have been commissioned to review the act, listen to people and accept written submissions as well as verbal presentations to our committee on the views of the public towards the act — how it's worked, how it hasn't worked, ideas on how we as a committee could make recommendations back to the Legislative Assembly on improving the act itself. So I welcome you before the committee here this afternoon and thank you for taking time out of your schedule to come and speak to us.

Chairman and members of the committee, I'm going to ad-lib because I haven't really got much in the way of notes. I'd like to start by saying that I was incarcerated for a number of years. Two of those years, I was the head librarian in an institution on the mainland, at which time I did dozens and dozens of freedom-of-information requests, both federally and provincially. It's to this I'd like to speak. I don't have any good notes here, and I'm going to wander a bit.

One of the main problems that inmates have is that they want to get information from Crown counsel or from the courts or from the police departments who were involved in their arrest. The privacy officers of the police departments — I don't know what else to call them…. I have never, ever once seen them be on time with requests. They routinely just say, "Okay, we need another 30 days," which is what I told my fellow inmates to expect.

Often they didn't give what they're supposed to give. They just exempt everything, or almost everything. I would have to take the other inmate's request and forward it to the privacy commissioner. Then the police departments would give the information if they were told to. This is a lot of work, as I believe the file has to go to the privacy commissioner's office.

There appear to be no repercussions on the information privacy officers of different organizations to do the job they're supposed to do. It seems to me that they don't…. Well, I might be wrong, but they didn't want to take the effort to do it properly or they didn't know what they were doing, and it was just easy to pass the buck to the privacy commissioner's office to let them do the work. I think that's wrong. I think these people should be doing the job right off the bat.

Now, I'm going to take an example. This is my own example. I tried to get information from one police department and got very little — and complained and nothing happened. I waited a few years, because these information officers are rotated. Not so much rotated…. You know, somebody does it for a couple of years, and then somebody else comes. You try again a couple of years later, and you get different information.

Try it again a few years later, and you get different information again. There's no consistency as to what information these police departments will give you.

Personally, right now I've had an offence that is maybe a dozen years old. I still have no idea why they won't give me some information. It's not a national secret. They just choose to sit on it.

Now, let's see what else I've got here. With the Crown counsel, Crown counsel's office also doesn't always give the information that they're supposed to. Case in point: I wanted the victim statement, and I was told to go to court records. They didn't have it. I wrote back to the Crown counsel, and they said: "Well, basically, you can't get it. You have to go to the courts." I went to the privacy commissioner and complained, and I got a letter back from the Deputy Attorney General. This was during the mid-nineties. He said I was wrong; I didn't know better. "Here, you can have whatever Crown counsel has."

I went back to Crown counsel, and they had nothing because there are things called destruction schedules, or something like that. I don't know how you're supposed to know what these destruction schedules are, but I guess the privacy commissioner's office is not in charge of those schedules. I guess each individual organization has its own destruction schedule. In the end, four years after incarceration, there was nothing. Crown counsel had nothing. I always was of the opinion that they'd hang onto this stuff. This is just my personal experience. I don't know what other people have experienced.

Inside the prison all the files were kept with one page on top of the other. We know that if there are mistakes made, you can write and say: "I would like to have this noted in my file." There is no mechanism whereby the page where you're making a mistake is next to the page that has the false information. That's somewhere else in the file.

To make things worse, during '95 and '96 the prison system was converting to an electronic filing system. Inmates don't have access to that. If they make complaints or if they see things in their file that are not true and they make a complaint about it, they make a paper copy and submit it to the appropriate place. That paper copy never gets entered into the electronic system being used. Now, this was a federal prison. I'm not sure if this is happening provincially, but these are things that when the act was first made…. I'm not sure — maybe you know — if there were electronic filing systems, but they're not available to the average person. I'm not sure what happens when they have a correction or where it goes.

There's another thing of interest: psychological tests in the federal system. You cannot get those. These are only to be interpreted by, I guess, the prison psychologist. You cannot get at them. You cannot just take that test out and say: "Well, let's just give it to Joe Blow psychologist down the street and see what he makes out of it." No, you never get those. I don't know if that's right or wrong, or if that's done provincially.

There are registries, certainly within the prison system, for which there is no freedom-of-information code or file. One thing, I note, was the victim registry. These are registries that don't even exist to be accessed. I'm not sure if that is, federally. As I said, I'm ad-libbing, because I'm bringing things to mind that as a prison librarian I came across which I thought were not fair to the prisoner and, I believe, not right. You should be able to access all information that is there about you.

I'm going to take a quick break. I have more things in my mind, but I haven't got them on paper, and I feel like I'm pretty disjointed here.

B. Lekstrom (Chair): Certainly, take your time. I will look to committee members to see if they have any questions as to what you've spoken on already. We'll go through that process and then go back to yourself, if you have anything else to add to the presentation.

B. Penner: Thanks. Just a point of clarification: were you serving time in a federal institution?

B. Penner: So it's possible, then, that what you're commenting on may be more applicable to the federal freedom-of-information and protection-of-privacy act than the provincial statute. I'm guessing here, but my suspicion is that the provincial statute may not apply to federal institutions or the records they keep.

A Citizen: They cross over. Certainly, provincially you're going to access things provincially, like your local police departments and Crown counsel. Again, it's the same with psychological reports, which are completely blanked out. You cannot even hire a psychologist to do an interpretation of that report, the way you….

I'm trying to think of a federal matter that can be accessed out of a provincial prison, and right now one does not come to mind. Certainly, if you're serving time federally, you're forever accessing both of them, because there are files both federally and provincially. The provincial is a very big part of them, because all the police records and Crown counsel records are provincial.

B. Penner: You mentioned a victim impact statement. Was that read out loud in court, and are there other matters you'd like to get your…?

A Citizen: That was read out loud in court, and it had disappeared. It had disappeared from the Crown counsel's offices, and it had disappeared from the court records. It was just not there. It disappeared as if it had never been there.

B. Penner: I was wondering if there were other matters besides that victim impact statement that you were also seeking to get access to.

A Citizen: Personally, it was Crown counsel files, and personally, it was police records from two police departments. That's speaking for myself, but I've done dozens and dozens of ones for other inmates. It has been probably seven years or something. I was familiar with the act back then — 1995, before the '96 version came out — and I haven't really looked at it now, I guess, for six years or more.

B. Lekstrom (Chair): I have next on our list Tom Christensen, who I will go to.

The part that sort of intrigued me was your comment that there's essentially no repercussion for frustrating the process. Certainly, the way the act is set up is that if you make your request and it's not appropriately responded to, you then go to the commissioner obviously, as you said. What I'm wondering is: in your experience in assisting a number of inmates, when you were pretty familiar with the process, did you find a pattern of trying to frustrate the process among either certain individuals who were responsible for FOI within a particular police department?

If the answer to that is yes, was that brought to the attention of the commissioner at the time? Or did the commissioner ever make a comment on seeing a series of appeals to the commissioner in relation to a particular FOI office or a particular police department? It seems that the commissioner would have, at least through commentary if not by any enforcement mechanism, an ability to comment that the act really wasn't being administered in good faith at a particular level.

A Citizen: Okay. I believe when this came out…. I think it came out in '93. Does anybody know? Was it 1993 that it was legislated?

A Citizen: The part that pertained to law enforcement, I think, came out in the fall of '94 or '95. I think it was a bit of a shock, maybe, to the police forces that now their secret files were going to be available. These officers are quite protective of the information they have. That's what I think. I'm not sure how they do it today, but they did not want to part with it. It was my opinion from doing it for several inmates that you had to pry it out of them by going to the privacy commissioner's office to get the job done properly.

There was no repercussion to the staff administrating it within different police departments. There's no repercussion to them. They can just say: "Oh, I'm not going to give it to you." Or they're going to exempt it with one or two of these exemption numbers, and you never get it unless you fight for it.

T. Christensen: When exactly was the time that you were most familiar with it? What I'm wondering is whether it's…. Certainly, there's growing….

A Citizen: That's the time when I did most of my privacy access for other people.

T. Christensen: Okay. Have you had any more recent experience with it, so you can see whether or not that has changed over time?

A Citizen: In 1998 I accessed my own file, which I had accessed twice before, and I got a big wad of information that I didn't get the first two times. The second time I got a bit more than the first. The third time a bit more, but there was still a nice big wad in there that they wouldn't tell me what it was. This was long after the sentence had been served. I don't know what they were doing with it, but I'm going to find out one day. Even that sort of thing they don't tell you. They won't say, "Oh well, this is your information," or "It's about your next-door neighbour." They don't tell you. They just hang onto it.

T. Christensen: In that final request in '98, was it provincial or federal or both that you were requesting…?

T. Christensen: The information that you didn't get that you wanted — did you appeal that to the commissioner at the time?

A Citizen: Well, the first stage is to take it — not to the commissioner; there's a stage in between — to the portfolio officer. Yes, I complained. I was told: "Oh, you can't see it." Even at that level, they wouldn't tell me what exemption was being applied to it. I mean, it was kind of like it's a big mystery, but nobody tells you what it is. It's just something you have to live with. I don't think it's fair, but….

In the context of this being a review of this act and it being debated by everybody on it being workable for all citizens and the fact that you have told us that you had a hard time getting your information, did you…? Just for clarity, because I don't understand something here, when you went to be reviewed by the Parole Board — and I'm sure you went through a parole review — during the parole review process were you not able to access the information that would be debated during the parole hearing? Was there not a time during that period when you went to the parole hearing that you could access the information you were looking for during that hearing? I'm just asking this because I don't know. What I'm trying to do is….

A Citizen: For the first parole hearing this act was not in place, so I couldn't have accessed what I wanted. For the second parole hearing I tried to put the parole hearing off by about a year to delay it to get access to information. There was nothing systematic about it, but there is a problem. It is that you just can't get it. Information that you wish to present, such as a victim statement which was read out in court, just completely disappeared. Nobody has it, including records that should be held by Crown counsel — nothing.

I've got to be careful what I say, because I'm on the air here and I don't want this coming back, but we had a few paralegals — inmates — and they couldn't believe that things disappear like that.

One other thing that's really important. There seems to be a period of time of two weeks or something in which you have time to do an appeal when a portfolio officer writes you a letter. It's ten days, maybe. If you don't do it within the ten days, then you've got to kind of start over again. This was really a tough one in the prison system, because you don't get your mail right away. They hold it for a day or two or three, and they make sure there are no drugs and that. Then they bring it to you, and you look at. You can't get it back in ten days. You know? It's just impossible. We had a system where we bought Loomis prepaid courier envelopes at six bucks apiece so that we could whip those things back to the privacy commissioner as quickly as possible. The time limits for the average person for that turnaround if you want to appeal something is ridiculous. It's not long enough.

B. Lekstrom (Chair): Are there any other questions at this time? I'll look to members.

A Citizen: Well, this all happened, like I said, seven or eight years ago. I can't remember everything. I had a lot of complaints at that time, and I can't remember them all. The main one, I think, is that all these departments — and I don't know if it's still like that — for Crown counsel or the police don't want to give you the stuff. Even if they have to, they don't want to give it to you. They put the onus upon the privacy commissioner to do what should be their job. That, in a nutshell, is what my biggest complaint is.

I don't know how they do…. Everything is electronic now. If you're looking for a particular document, it's on the screen, but if it has information in it that's wrong and you know it's wrong — you've put in the appropriate form — it doesn't get into the electronic system. Unless they've changed that recently, certainly federally they don't even bother putting it in there. Again, I have to be careful what I say, because maybe they're doing it that now, but they certainly weren't doing that at the time. That makes a big difference. If there's false information and you've put a correction in, they don't get the chance to see your own correction.

I think right now I'll just be a windbag if I talk any longer. I thank you for your time.

B. Lekstrom (Chair): I want to thank you for taking time. We had a chance to talk earlier, and I'm happy that you took the time to come back and address the committee here this afternoon. As I indicated earlier, certainly a written submission, if you have the time or find time to put that together…. We would welcome that as well, as the committee, to review your thoughts and ideas on what you've brought forward here today. Or if anything else comes to mind, we would appreciate that as well. Thank you for taking the time today.

B. Lekstrom (Chair): Members of the committee, we have concluded the presenters here today. We have no further presenters that have requested time before the committee. We do have a full schedule tomorrow in Vancouver. We have been in contact with the three presenters from Kelowna and Prince George combined. One gentleman, I believe, has agreed he is going to take the time to drive to Vancouver tomorrow to present before the committee. I'm going to look for some direction from the committee. He has asked if we would entertain the issue of compensation for mileage — no overnight accommodation but down and back. Rather than make that call on behalf of the committee, I thought I would bring it before this committee for discussion to see what the wish of the committee would be on that.

B. Belsey: I would caution the committee, Mr. Chair, in that if we agree to compensate this individual, I think it's only fair that we offer something the same to those in areas such as Kelowna, I believe it was, that we were going to — that they be offered something as well.

B. Lekstrom (Chair): It is my understanding that the one gentleman is from Kelowna. The other accepted putting in a written submission.

B. Lekstrom (Chair): He will meet with Tom Christensen — we have put out that offer — an MLA who sits on the committee. We do have a similar request from the presenter in Prince George, so there are actually two issues here — a similar issue, two different individuals. I would look to the wisdom of our committee, and I will go to Mike, then Sheila and then Jeff.

M. Hunter (Deputy Chair): My personal view — and you and I chatted about this earlier, Mr. Chairman — was that in this circumstance, I think these people we have inconvenienced by our decision, in a sense…. I was prepared to contemplate compensating the mileage, certainly, as this gentleman from Kelowna has asked. I don't want to open a Pandora's box here, and I don't think the committee should. So can I ask the Clerk: is there any precedent for this kind of compensation of witnesses in this Legislature? I know the feds sometimes pay, but this isn't the feds.

K. Ryan-Lloyd: Yes, there is a provision in the standing orders that has been undertaken by committees in the past, but it's always at the discretion of the committee. The provision as such allows the authorization of a payment to cover expenses when travel is required to attend a public hearing, but always at the discretion of the committee.

M. Hunter (Deputy Chair): At the discretion of the committee. Thank you for that. Then in that case, I would recommend that we offer compensation to this person who is prepared to drive from Kelowna. The other Kelowna attendee has been taken care of in another way.

That leaves the Prince George individual. Are we going to make a decision on that individual at this time too?

B. Lekstrom (Chair): I would hope we would deal with both individuals. These are people that had signed up as per our advertisements in the newspaper. I guess that in our discussion, it would be appropriate to discuss this as one issue, although there are two individuals from two locations.

M. Hunter (Deputy Chair): In that case, I would recommend that if we can find an arrangement that's suitably reasonable in terms of the cost to get the Prince George witness to Vancouver or Victoria, then we should do that.

B. Lekstrom (Chair): I will accept that as a motion. If I do have a seconder, then we can discuss.

We all saw the advertising. We all saw that it was extensively advertised. There was a reason for that, and it was to get British Columbians involved. If there are only two or three up in the northern areas that did come forward, they are still three of our valued citizens. I think that after what the Clerk has said, it's definitely…. You definitely have my support. We want to hear these people. Even if it's just a few, they are valued words.

J. Bray: While I appreciate the fact that the meeting has been cancelled, it has actually been cancelled on cost issues — that it didn't seem reasonable to send an entire committee up for three people in two different cities. I concur with Mr. Belsey. We should think very carefully, because if we'd gone to Prince George, of course, and somebody from Terrace had wanted to come to Prince George to make a presentation, would we have provided mileage? My assumption would be that we'd say: "Well, we just chose not to go to Terrace."

Legislative committees go to as many places as is feasible, but we do not provide mileage, as a practice, to citizens who choose to come to the committee. I would suggest that records would probably demonstrate that most of the times mileage or travel compensation is contemplated are when the committees have actually asked for a witness to attend as opposed to a public call where members of the public can come.

Further, although I appreciate that hearing in public and the ability to have discussion is helpful, there is the electronic questionnaire, there is the e-mail, and there is the ability to send in a written submission. The substantive facts of a presentation can be presented in a number of different ways.

I would caution the committee that when the Finance committee goes out, we've set an interesting precedent in that we're providing travel for somebody to come to Victoria where the committee didn't go to that city. I would not support the motion, based on the fact that there are lots of people who can't get to committees.

H. Bloy: One, I'm on another committee, and I'm going to be in Prince George on February 3, 4 or 5. I'd be prepared to meet with the individual as a member of the committee.

That was put forward to the gentleman. He very much wanted to address the committee in person and to be on the public record. I guess the offer to meet with an MLA was taken by him, but his preference certainly is to address the committee in full, as was indicated. But I appreciate that, Harry, very much.

H. Bloy: I guess my second question is: was there the possibility of a telephone conference call that we could have?

B. Lekstrom (Chair): That option has not been explored with this gentleman. We can explore it to see. Through initial discussions, the feeling is certainly that he would like to be face to face with the committee, but that is an option that could be explored with this individual. Okay?

On the matter of compensation for driving down, I agree with the reason for cancelling it because of the limited number for exposure. I believe that when a committee sets a meeting, it has an obligation to go around the province — not necessarily to bring people within a region in, but that cities are picked around British Columbia. The many committees that travel the province vary the number of cities, so it's an option. I believe that once we've chosen an area and they've made a commitment in that area to come and speak, we owe them some obligation to hear them.

B. Lekstrom (Chair): Just may I, without opening it up too far, I guess…. The possibility for Prince George, for instance, to Victoria or Vancouver…. It may be more cost-effective to actually fly return versus the mileage. It's about a thousand-mile return trip, I would think, and I imagine airfare would be relatively close to that, if not less. It may be something we could consider, take the lesser of the two options and offer that to these participants or something.

G. Trumper: In seconding the motion, Chair, we advertised that we were going to go out to these communities. These people have possibly booked off time from work. I don't know. I mean, who knows what their background is? Whatever. If you live in the north, if you live in another part of the province, you know it's not possible to go to all the areas. People recognize that if you're going to go to Prince George or wherever, or in the Kootenays, you will make the effort to do that, because they all have to do that for services.

I think we cancelled it because of the cost of us having to get there. As a committee, it was a very good decision to make, but I also think that those people, in all fairness, wish to appear before the committee in person. I think, in fairness, on a special warrant or whatever it is, that we should be paying for their transportation or whatever it takes. We are the ones that changed the rules.

T. Christensen: I'm probably not going to add a lot new. You know, I think everybody recognizes how large a province we have and that we have large communities and small communities around the province. We're never going to get to the point where we're paying for people to attend hearings, regardless of where they live, but we often have very vigorous debate when we start out on a committee process as to where in the province we're going to go in order to allow people a reasonable opportunity to present to this committee.

Invariably, and quite rightly, our committee public hearing schedules typically include communities throughout the province. That's certainly what was intended to happen when the schedule for this committee was first set up, and we found that we were at least prepared to hold hearings in both Kelowna and Prince George.

Obviously, we would have preferred that there was a good long list of witnesses in each of those communities, but that was not to be. But having set that original schedule and indicated to folks in those regions that we certainly wanted to hear from them, I think in these unique circumstances where it was abundantly clear that it wasn't reasonable, given the cost, to send the whole committee up for a hearing to hear two witnesses in Kelowna and one in Prince George…. In those limited circumstances, it's worth the committee certainly having this discussion and considering funding them to come and present to us in either Vancouver or Victoria.

I don't think it sets any sort of any dangerous precedent. It will always be up to an individual committee to decide, in the unique circumstances of the case, whether it's reasonable to fund somebody to travel to where the committee is meeting. I would support the motion with the proviso that we agree to provide travel at the least cost, whether that's by the person driving themselves and getting mileage or by airfare.

B. Lekstrom (Chair): I would accept that as a friendly amendment to the main motion, if that's acceptable to the mover.

M. Hunter (Deputy Chair): I have another suggestion, because your answer to Mr. Bloy's question about

teleconferencing suggests to me that if Mr. Bloy were to offer an amendment to the motion to explore that particular option with respect to the person from Prince George, that would also be a friendly amendment and a useful one.

B. Lekstrom (Chair): Yes, I have indicated we will explore that option first with the individual. Failing that, we will entertain the motion, should it pass, that's on the floor right now before the committee.

B. Lekstrom (Chair): Seeing no further discussion on the motion, the question has been called.

I thank you for your time here this afternoon. We will at this point look for a motion to adjourn the meeting.

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CONTENTS

		Page

Presentations		63
	H. Layzell I. Layzell A Citizen

Witnesses' Reimbursement		72

REPORT OF PROCEEDINGS (Hansard)

SPECIAL COMMITTEE TO REVIEW THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO REVIEW
THE FREEDOM OF INFORMATION AND
PROTECTION OF PRIVACY ACT