2009 Legislative Session: First Session, 39th Parliament

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

MINUTES AND HANSARD

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

Tuesday, February 2, 2010

10 a.m.

Waddington Room, Fairmont Hotel Vancouver

900 West Georgia Street, Vancouver, B.C.

Present: Ron Cantelon, MLA (Chair); Doug Routley, MLA (Deputy Chair); Harry Bloy, MLA; Stephanie Cadieux, MLA; Katrine Conroy, MLA; Marc Dalton, MLA; Eric Foster, MLA; Guy Gentner, MLA; Douglas Horne, MLA; Harry Lali, MLA; Jenny Wai Ching Kwan, MLA; Ralph Sultan, MLA

1. The following witnesses appeared before the Committee and answered questions:

2. The Committee recessed from 1:03 p.m. to 2:01 p.m.

3. The following witnesses appeared before the Committee and answered questions:

4. The Committee adjourned at 4:37 p.m. to the call of the Chair.

The following electronic version is for informational purposes only.

The printed version remains the official version.

REPORT OF PROCEEDINGS
(Hansard)

sPecial committee to review the
FREEDOM OF INFORMATION AND
PROTECTION OF PRIVACY ACT

Tuesday, February 2, 2010

Issue No. 3

ISSN 1708-3168

[ Page 21 ]

TUESDAY, FEBRUARY 2, 2010

The committee met at 10 a.m.

[R. Cantelon in the chair.]

R. Cantelon (Chair): Good morning, everybody, and welcome. I am Ron Cantelon. I'm the MLA for Parksville-Qualicum, and I'm Chair of this parliamentary committee. I'd like to welcome everybody in the audience, and we look forward eagerly to all its submissions. It should be a very interesting day.

The purpose of the meeting is pursuant to section 80 of the Freedom of Information and Protection of Privacy Act. A special committee of the Legislative Assembly must conduct a comprehensive review of the act at least once in every six-year period. This committee is charged with the third statutory review of the act. Previous reviews were completed by parliamentary committees in '99 and 2004.

In carrying out a review, we'll be holding two-day public hearings — here today in Vancouver and tomorrow in Victoria. During these meetings presentations will be presented from people who preregistered with the Clerk of the committee.

There are a variety of other ways British Columbians can share their ideas with us. We accept written submissions by letter or e-mail. We're also inviting video or audio files to be submitted. All submissions must be received by February 28, 2010. Further information on how you may participate using one of these methods is available on our website, http://www.leg.bc.ca/foi/. There you will find additional background information, links to the act, as well as copies of previous reports issued on this topic.

As specified on our committee's terms of reference, we are required to complete our consultation and report back to the Legislative Assembly no later than May 31, 2010.

Today we're going to hear from witnesses according to the agenda put forward by Craig James, who very ably laid out an agenda. Commenting on that, I certainly don't want to be too abrupt, but we have a full agenda which allows timing for both presentations and, I anticipate, robust questions.

I'd now like to introduce the Members of the Legislative Assembly, starting on my right.

K. Conroy: Katrine Conroy, MLA for Kootenay West.

G. Gentner: Guy Gentner, Delta North.

J. Kwan: Jenny Kwan, MLA, Vancouver–Mount Pleasant.

D. Routley (Deputy Chair): Doug Routley, Nanaimo–North Cowichan.

R. Sultan: Ralph Sultan, West Vancouver–Capilano.

H. Bloy: Harry Bloy, MLA for Burnaby-Lougheed and the home of Simon Fraser University.

M. Dalton: Marc Dalton, Maple Ridge–Mission.

E. Foster: Eric Foster, Vernon-Monashee.

D. Horne: Douglas Horne, Coquitlam–Burke Mountain.

S. Cadieux: Stephanie Cadieux, Surrey-Panorama.

R. Cantelon (Chair): Thank you very much. I'm ably assisted by Clerk Assistant and Clerk of Committees Craig James, who's done so much work in organizing this, and I'm sure it will flow smoothly.

Also joining us is Jonathan Fershau, our scribe and staffing the registration desk. We're ably assisted, of course, by Hansard — Michael Baer, Jean Medland, Gail Swetlow — who will prepare the record.

Just quickly, a brief anecdote. This is protection of privacy as well. I'm at the grocery store yesterday to buy some buns for my staff, and they bounced my debit card. So I then go to the bank, the community credit union, and I slip my bank card in, and it takes it and says to go to see the manager, basically. You know, you get this feeling of immediate loss.

So I then went to the bank immediately. It was opening, and I walked in. Indeed, my account had been red-flagged. I felt like a criminal, but what had happened is that somebody copied my bank card strip, copied my PIN and lifted $4,700 out of my bank account.

So I think that's a…. To me, it kind of got my attention. As we approach this committee, we've got many, many challenges in this. So we appreciate that this will be a very interesting thing.

The audio portion will be on the webcast on the Internet throughout the committee hearings so that people can listen to this as we proceed.

I won't take up anymore of the presenters' time. I'd like to introduce Darrell Evans and Vincent Gogolek of the Freedom of Information and Privacy Association.

Gentlemen, the floor is yours.

Presentations

D. Evans: Thanks very much. Good morning to the Chair, the Deputy Chair and all the members of the committee. Good to see you.

For those who aren't familiar with our organization, I'll give you just a tiny bit of background before we get into our presentation. It's the B.C. Freedom of Information and Privacy Association. We're a non-profit society that was established in 1991 in B.C. in order to get an FOI and privacy act passed. Basically, we started
[ Page 22 ]
the movement toward that. Our purpose is advancing freedom of information and privacy not only in B.C. but also in Canada. We also appear before the federal parliament and do work nationally.

The services we provide are public education, legal aid, research, public interest advocacy and, of course, law reform. Law reform is probably our most important product. We've appeared before the two previous committees, of course, and we're very, very delighted to be able to address this committee. This comes around once every six years, and it's a very important event for us.

[1005]

Looking back over these 18 years, when the Freedom of Information and Protection of Privacy Act was passed in 1992, it received a lot of acclaim. It was looked upon as being the leading edge in this kind of legislation not only in B.C. or Canada, but it even drew notice around the world.

We'd taken, basically, a movement that had rolled across Canada. Ontario had had a really good Freedom of Information and Protection of Privacy Act passed. We took that as our model, did what we could to improve it and presented it in a kind of a book called Information Rights for B.C., which became kind of a template for the legislation that followed. That book, incidentally, was written by David Loukidelis, just recently resigned as the Information and Privacy Commissioner and who is now Deputy Attorney General as of February 1.

As an organization that had seen in depth and dealt with every issue over the last 18 years, I can tell you that we can say with some authority that the act has not fared well over these 18 years, that B.C. has fallen behind other legislation around the world in many ways and really is now lagging behind in providing open government, transparency and privacy protection to its citizens.

On the freedom-of-information side, the promise of the act was that it would help create a culture of openness within government, that FOI requests would only be used as a last resort — would only need to be used as a last resort — and that routine release of information would be the order of the day, that fees would not be a barrier to access and that the heads of public bodies would make every reasonable effort to assist applicants and respond without delay to each applicant openly, accurately and completely. That's actually language from the act.

The reality of freedom of information in this province has turned out to be quite different, as almost every FOI requester who appears before you will tell you. This committee is composed of both NDP and Liberal members, and one of the facts you need to hear is that freedom of information has suffered under both NDP and Liberal governments.

The effort to eviscerate the FOI Act and make it progressively more difficult to use began seriously under the NDP administration in 1998. These efforts were greatly increased and became much more sophisticated under the Liberal administrations of the last decade. Just lately we've started receiving reports that the situation has grown even more difficult for our sturdy citizens who are able to make FOI requests and still remain standing.

Privacy protection has fared somewhat better in the province. The current administration introduced a very good Personal Information Protection Act covering the private sector in 2003. The current administration also made some positive amendments to the privacy part of the Freedom of Information and Protection of Privacy Act in 2004.

But all is not well on the privacy front. A government project that's currently moving forward in B.C. called the social sector integrated case management project poses a greater threat to the privacy of B.C. citizens than any we've seen in the last 18 years. We'll be telling you a little more detail about that as we proceed forward.

We hope you'll find our observations and suggestions in our submission helpful. A number of our recommendations will be the same as during the last review six years ago. A number were accepted by your predecessor committee. New recommendations will deal with the problems, as they've become even worse over the last six years.

The six years between the committee reports have seen problems with certain parts of the act escalate into what can only be called a crisis. If action is not taken soon, we really risk that the FOI and privacy rights of citizens become irrelevant, and that's something that we really don't want to see happen.

We dare to hope that this committee will rise to the challenge of restoring and advancing freedom-of-information and privacy rights in this province. These rights need champions within government, and at the present time we look to you.

I'm now going to turn over to my colleague Vince Gogolek to go into the FOI part of the act, and then if there's time left, I'll resume with the privacy part.

[1010]

V. Gogolek: Thanks, Darrell. Thank you, members and Chair. You will hear a number of recommendations that your predecessors heard, as Darrell mentioned. The previous committee proved remarkably prescient in terms of issues that needed to be dealt with, and what was urgent in 2004, I think we can reasonably say in a number of cases, is a crisis in 2010. I'll run through some of our more important recommendations for you.

First of all, the obligation to create records and penalties for improper destruction of records. There can be no public access to records if records are not created. Unfortunately, an oral culture is growing in government as officials choose not to record sensitive information
[ Page 23 ]
or delete it as soon as possible. This completely defeats the purpose of the FOI Act: making public bodies more open and accountable to the public.

We recommend that a positive duty to create and maintain records be incorporated into either this act or other legislation.

There should also be a specific duty to retain documents subject to FOI requests or containing personal information, and there should be penalties for destruction or alternation of documents without proper authority.

We'd recommend that a section be incorporated into this act to penalize any person or public body that deliberately destroys documents against the authority of this act or the Document Disposal Act.

One of the issues that we hear from a large number of people and which we experience ourselves is the question of delay and time limits. In our 2009 study, Failing FOI, we found that the rate at which the government violated statutory timelines for general request was 51½ percent.

If the 30-day extension of time a ministry can award itself in extraordinary circumstances were removed, almost 60 percent of general requests would have been deemed refusals. The commissioner found a very similar effect, and he looked at all requests, not just the general ones — both personal and general. It's a very serious problem.

One problem is that amendments in 2002, for some reason, changed the definition of a day from a calendar day, which it is for most statutes in this province, into a business day, which results in public bodies having a longer time to respond to requests.

We recommend that it be changed back to the normal Interpretation Act definition for all other statutes — that it go back to being a calendar day from a business day.

Under section 10(1), public bodies can give themselves another 30 business days to complete requests if they feel "meeting the time limit would unreasonably interfere with the operations of the public body." There is no scrutiny in how a public body determines this, and it is not practical to ask the commissioner to review such 30-day extensions.

This brings us to the role of the commissioner's office in providing additional time extensions under section 10. According to the commissioner's office, these requests are granted at an 80-percent-plus clip to public bodies that request them. Again, as a practical matter, there is no reasonable way for a requester to seek a review of this.

Fees are also used to delay or discourage requests. FIPA has experienced numerous instances where fees have been levied by the public body only to have them waived or overturned on further review.

The first special committee agreed that public bodies should be encouraged to complete information requests in a timely manner, and they recommended an automatic fee waiver if time limits are not respected.

Their recommendation was that public bodies comply with timelines under section 7 of the act and that in the event of non-compliance with timelines, fees for requests that are not fulfilled within the prescribed time be waived. That was the first special committee. We thought it was a good recommendation then, and we agree with it, and we support it now.

Finally, we'd like to point out that under section 6: "The head of a public body must make every reasonable effort to assist applicants and to respond without delay…."

[1015]

What is clear is that this statutory duty is not being met and that there are no negative consequences for the head of a public body who does not carry out this duty. A duty is not discretionary or subject to whim or budget constraints. It's a duty. The pattern of delay clearly indicates that this duty is not being taken seriously and that the time may be at hand to implement penalties for a head who fails to carry this out.

The new centralized system for handling FOI requests is claimed to be more efficient, with requests being sent to the relevant ministry or public body immediately rather than transferred back and forth among ministries. If that is the case, it appears that the 20-day period now provided for the transfer of a request to another public body would not be required, and we recommend to you that you consider recommending amending section 11 to eliminate the 20-day transfer period for public bodies which are part of the new centralized, more efficient system.

A major problem is something that has come up as a result of the increased outsourcing of work that used to be done entirely within government. It creates new problems for access. These transfers…. We make no comment on the efficiency or validity or the suitability of any of these arrangements. We wish to comment strictly on the need to have continued public accountability for whoever delivers these services.

Any reduction in the act's coverage of institutions that are funded by taxpayers reduces transparency, accountability and democracy. It also costs money. I'm sure everybody remembers the very recent discovery of enormous salaries, bonuses, per diems being paid at B.C. Ferries. B.C. Ferries was under this act. It was removed from scrutiny under this act in 2002.

We really have to wonder whether, if B.C. Ferries was still under this act and subject to FOI requests, those running the corporation would have seen fit to give themselves bonuses and salaries that are so far above the norm for the public sector.

In fact, this is not new. This is something the last special committee identified. They stated: "The committee is persuaded that there needs to be some explicit assurance in the act that alternate service delivery does not affect access rights…." There is a recommenda-
[ Page 24 ]
tion, which unfortunately was not implemented by the government.

What we face now is a crisis. A B.C. Supreme Court decision made late last year has now opened the door to information laundering by every public body in this province.

Simon Fraser University set up a private company, 100 percent owned, operated and controlled — records within their offices — to market their research. It's an entirely proper thing to do. They had, I'm sure, very good reasons for setting up a private company.

A request was made for records related to this company and how it operates. SFU's view was: "Well, it's a private company. They're not our records. We don't have custody or control of it as defined in the act. We're the public body; they're not, even though one of our vice-presidents heads it, even though we have all the shares, even though the records are kept here by us on campus and this organization has no life independent of SFU."

The commissioner's adjudicator agreed with this and said: "Well, given that it is completely controlled, 100 percent owned and operated, they do have custody or control of these records." SFU sought a judicial review. Unfortunately, the judge who heard the judicial review said that he disagreed, and he overturned the adjudicator's decision.

What he basically said was…. The details of this case are in a written submission with the citation from the decision, if you want to look at it. He basically applied a test that's used for tax cases or search and seizure. Unless there's fraud or wrongdoing of some kind, you cannot pierce the corporate veil. You cannot look at what's going on in a private company.

[1020]

There is a real problem here. The case is now under appeal to the B.C. Court of Appeal, but of course we do not know what the B.C. Court of Appeal will decide. If this decision stands, essentially what it amounts to is it gives the ability of every public body in this province that has enough money to go out and set up a shell company to do that. If there are records they don't want you to have, they can do it for specifically for that purpose, and you will never see them; nobody will see them.

This is a problem, and we need to deal with this. We urge you today that rather than waiting to see what happens in the B.C. Court of Appeal, you, as the legislators, deal with this situation, because the alternative would be a catastrophe for FOI.

I would also like to move on to cabinet confidences, which are found in section 12 of the act. At one time the idea of Crown privilege meant, back in the '60s, that a policeman's notebook couldn't be used in evidence in a traffic case because it was felt that as a servant of Her Majesty his notebook of the traffic accident would have been covered by Crown privilege and if his notebook was let out, then everything would be. That, thankfully, has been changed.

What we have now is a balancing that is done. It's codified in section 12 of the act. What we have now is a system which is designed to protect, legitimately, the substance and deliberations of the executive council or its committee. That's a standard clause. I don't think there's any disagreement that the substance of deliberate cabinet deliberations shouldn't be subject to FOI requests.

However, what has happened is that the B.C. Court of Appeal in the 1996 Aquasource decision took a much broader view of what amounts to information that could reveal the substance of decisions. Since Aquasource was decided, other provinces with similar or identical provisions in their FOI laws have declined to follow it and have rejected the approach in Aquasource, preferring a less restrictive approach which still protects the actual deliberations of cabinet.

What we are seeing now is that there are a number of either cases before the commissioner or judicial reviews where the government is seeking to expand even what has been provided — the expanded view under Aquasource. We ask you to take a look at our recommendations to bring section 12 back to its legitimate purpose, which is to protect the deliberations of cabinet.

Advice and recommendations were dealt with by the previous committee. They recommended amendments to deal with yet another B.C. Court of Appeal decision, College of Physicians and Surgeons, better known as Dr. Doe, which applied a new and extremely broad interpretation to the meaning of advice and recommendation.

They found that recommendations not only include considerations of specific or alternative courses of action but also "the investigation and gathering of the facts and information necessary to the consideration of specific or alternative courses of action." Again, the decision's been widely criticized in this province for its expansion of the advice and recommendation exception, and its interpretation has been rejected by courts in other provinces.

In a speech to the 2007 B.C. Information Summit, former AG Colin Gabelmann pointed out that the intention of the Legislature in drafting section 13 was very different from what the court said it was: "Section 13 was so clear and obvious that there was not a word spoken by any member of the House on it during the committee stage debate. Not a word."

As I had mentioned earlier, the government has been constantly expanding what has happened under section 13, and in fact we are now involved in our first ever judicial review of a commissioner's decision. I think you'll be quite interested in the circumstances.

[1025]

We asked for the submissions to the internal bureaucratic process, seeking to implement the previous special committee's recommendations. There were a number
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of groups, including ourselves, who put in recommendations, submissions. This is essentially a consultation process run by the bureaucracy. We asked for the submissions to this consultation process.

The response from the ministry was: "We can't give you these unless they consent. Furthermore, they constitute advice and recommendations under section 13." Now, this is a consultation process which…. The bureaucracy's view is it amounts to advice and recommendations. So they've expanded from expert advice to a consultation process.

Now, the adjudicator, who criticized the use of discretion in failing to release these documents, noted: "There is some irony in the ministry's use of FIPPA to withhold stakeholders' comments on potential amendments to FIPPA itself."

We're in court looking to have this decision overturned. If we're not successful, then what has happened is that section 13 has been further expanded from the already large expansion that was made in the College of Physicians and Surgeons. B.C. is going to become even more secretive than other provinces.

We urge you to look at your predecessors recommendations to change section 13. We also urge you to take a very serious look at what is now again becoming…. What was urgent in 2004 is now a crisis in 2010.

I'd like to very quickly talk to you about release and the public interest. I'd just like to point out that there is a very high standard, which is not set out in the words of the statute itself by the Legislature. It was arrived at through interpretations by the courts and by the commissioners. The very high — we'd say unreasonably high — standard is now that information must be urgent and compelling before it can be released.

There is a mandatory…. There is a duty upon heads of public bodies to release information which falls under the heading of "public interest." The Supreme Court of Canada came out with a ruling in December of last year dealing directly with the definition of "public interest" in the question of a new defence to defamation. It takes a much broader approach, and the previous decisions of the commissioners now have to be thrown into question as a result of what the Supreme Court of Canada has said about what the definition is of public interest.

We urge you to look at this section and make the necessary amendments to take into account the rulings of the Supreme Court of Canada, rather than leaving it to individuals and the courts. Your role as legislators is to make the necessary changes, not to leave it up to judges to somehow fill in the gaps.

I'd like to just hand it over very quickly to Darrell for our comments on privacy.

D. Evans: Thanks, Vince.

Privacy protection is quite a dilemma in this age of increasing government scrutiny in people's lives versus the concept of privacy, which is embedded in our constitution, in our Bill of Rights.

The crux of it is that there's a push for greater data collection use and disclosure within governments at almost every level, especially exacerbated since 9/11. A lot of the problems in society seem to be solvable by greater collection of information about citizens. I don't think that's the fact.

If you just look at, for instance, more scrutiny at airports. Is the solution to be found in greater intelligence on the part of people who scrutinize individuals, or is it to be found in greater and greater data collection about every individual in society and the collection of what amounts to vast dossiers on each citizen? This is not just an international problem or a national problem. It's here in B.C. as well.

The challenge here is where to draw the line for governments on the collection of data about citizens. It's kind of like a striking case of the unstoppable force and the immovable object.

[1030]

I'd just like to quote a little bit about what the Supreme Court of Canada has had to say about our right to privacy, if you'll bear with me. This was said by the Supreme Court in a case called R. v. Plant.

"In fostering the underlying values of dignity, integrity and autonomy, it is fitting that section 8 of the Charter seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual."

There we have the case of the fact that we need to keep certain information about ourselves private — or the right to keep a private space for ourselves in the face of government's knowledge about us, which is almost every fact about us. When you look at the vast array of government programs and what they deal with, consider their range and nature — for example, health care services, income assistance programs, family and child support services, education, even your driver's licence, your driver's history, just to name a few. It's clear that government possesses an intimate and detailed picture of each one of our lives.

This has been prevented from being a total state surveillance on individuals by the fact that this information has been maintained in silos. It can't be shared willy-nilly or at will across government, traditionally. But that may change. There's always a threat that this will change. The drive for efficiency, a better administration of programs, etc., leads the bureaucracy to want ever more information and to match that information and mine that information. There's a current case of this going on. It is a perfect example, which I mentioned in our introduction.

It's important to know that the decisions based on this information affect every aspect of our lives, from
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our ability to raise our children — because, say, a false report in a file can end with your children being taken from you by the state…. This happens. A false report in a file can mean you lose your job. So we're talking about decisions that truly will affect our lives.

But on the other side, a collection of a lot of this information is necessary for the administration of government programs, so what do we do? That's the challenge for this committee, and of course, we have recommendations that we believe will help square the circle.

The privacy provisions of FOIPPA — and I'm not going to go into detail because I don't think we have the time here — as they exist right now, are kind of outmoded, especially in comparison with the personal information act for the private sector that was introduced by government, which has standards far above what now exists for government. This means that any program the government cooks up can be justified, providing the use of the information is necessary for the administration of that program.

In other words, what we're lacking here is a justification standard or a rule by which any government program that's put forward can be measured, and you can take a sober second thought to say: "Is this really justified? Is it proper? Is it proportionate, and does it protect privacy rights vis-à-vis the state's?"

We have a recommendation that we share with the former commissioner's office — to wit, that the act should be amended to require public bodies to consider as part of any assessment respecting the privacy impact of a law, policy, program or technology under consideration, with that assessment being conducted according to a privacy charter incorporated in the act or enacted as freestanding statute. Where the privacy impacts cannot be minimized to an acceptable level, the proposal should be abandoned.

In other words, right now within the FOI, the privacy part of this act, pretty much anything goes, and we feel that is simply not acceptable. I think we're really heading toward some privacy challenges, perhaps even up to the Supreme Court of Canada, as government's quest for more and more information just continues.

There are some words in sections of the privacy part of the act that also need to be scrutinized, and we detail those in our submission. With that, I think we're probably out of time.

The committee's predecessors — the previous committee — as Vince and I have both said, came to the conclusion that a whole set of actions needed to be done. A lot of those actions, a majority, have not been implemented over the last six years.

[1035]

We urge you, first of all, to consider those and consider implementing those and then also consider our recommendations for what we see are necessary improvements. We thank you very, very much for listening to us today.

R. Cantelon (Chair): Thank you for the presentation and for keeping it quite well on schedule.

The floor is now open to questions from members.

J. Kwan: I think you were going to elaborate on the SFU situation, which you touched on a little bit, whereby, I suppose, a public body sets up a private corporation of sorts and, therefore, prevents access for records and so on. When you say that — that this could apply to every other institution — do you mean potentially all records? Or is it just to records which the corporation has set up, which is meant to do some sort of private business? Does it not have to be relevant to what that corporation has been set up for?

V. Gogolek: Yeah, that's right. But what it does is…. Public bodies could set up private corporations for a number of entirely legitimate reasons — reasons of governance, tax reasons. There could be many reasons for a public body to set up a private entity.

The problem with the SFU decision is that it essentially puts in the hands of a public body…. If it wishes for, let's say, some construction project that would normally have been handled through the public body through its internal workings, what they would do if they did not want the public to have access to the information — contracts, other information about this project….

Let's say it's the vice-president's brother-in-law who's going to get the contract. Well, that would normally be available under the act if it was a public body. However, if you create "1234 B.C. Inc." to run the parking lot paving project or a construction project — if the SFU decision stands — well, you can't get at any documents related that are in the hands of "1234 B.C."

It actually creates an incentive for public bodies that want to hide things to hide them in a private corporation. A public body that is not interested in hiding things probably wouldn't create a private corporation to do it. If the decision stands, what it does is provide an incentive for the most secretive public bodies to put records out of reach for all the wrong reasons.

D. Evans: There was a case of that with school boards, where the minister found that some school boards were creating private companies in order, I guess, to market their education technology. The minister very wisely said she would include them under the FOI Act.

Things can get out of control when they lose the transparency that this act was designed to create. We all know that scrutiny helps avoid corruption, misuse of funds, etc., etc. That's the whole purpose of FOI acts.

V. Gogolek: Just a further note for Darrell. The decision by Minister Bond regarding school board private companies is outlined in a press release back in 2006 — the end of 2006, if you're interested in following that up.
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R. Cantelon (Chair): Follow up, and then I have Doug Routley.

J. Kwan: I would be interested in looking at that press release. I don't recollect the information. I don't know if the committee could get a copy for all of the members. That would be useful and helpful, I think.

The other thing which I know you didn't touch on in your presentation, but it kind of, I guess, is likened to the situation with the Olympics, whereby access to all of the records related to the Olympics is not FOIable.... Is that an example? I guess it's not a private corporation, but for reasons that are a mystery to me, why public dollars that are being spent to host the 2010 Olympics…. It's out of reach through the freedom-of-information process by members of the public.

[1040]

I don't understand it, and I don't understand how it is that it got to be that way and why it got to be that way. I wonder if you can shed some light. Is that an extension in ways that governments could avoid public scrutiny for public institutions or public agencies?

V. Gogolek: In terms of the organizing committee for the Olympics, I think you would have to ask the government about why it hasn't been designated in the act, because the government has the ability to specify that this body or that body is subject to the provisions of this act. In the case of VANOC, they chose not to do that, and I'm sure they have very good reasons that they would be happy to share with you about why they didn't do that.

We have a recommendation suggesting that public bodies or organizations that are spending public money for public purposes should be subject to this act. We urge you to look at that seriously.

D. Routley (Deputy Chair): Well, I essentially have a follow-up to Jenny's question and then a question of my own.

The follow-up to her question would be related to the school board's corporations. As a former school trustee, I remember the school board being encouraged to form these corporations to market our services overseas. Our own district in Cowichan Valley invested in partnering with a school in China right before the SARS epidemic, and it really destroyed that effort.

With the SFU decision, do you see the openness that's been applied to school board corporations being removed? How would you suggest amending the act to counter that?

V. Gogolek: Regarding the school board decision, what we have been able to find is, basically, a press release from the minister. We assume this has been done. We're not quite sure how the minister did it, because the definition of school board hasn't been amended, that we're able to find. Really not sure how they did it, but this was done back in 2006, so I would think that you might want to get further details on that. Clearly, Minister Bond thought this was important for public accountability, that these entities be put underneath it.

Of course, amendment of the statute would, essentially, overrule the SFU decision. It would take precedence over it. So if you were to amend the act to include this, then it would be a way of doing it. But we would urge you to…. Rather than leaving it up to individual ministers in individual decisions, we would suggest that this be the default — that public bodies are included. Everything is included unless excluded, including any public entities controlled by them. We would just say "controlled," rather than giving a specific degree.

D. Routley (Deputy Chair): Okay. Then I would ask…. In your submission, you talk about routine release and the movement, recently, by the Obama government towards routine release and posting of all documents practical on websites, and time limits — that sort of thing — being applied. Can you help the committee in providing information that we might deliberate in regards to how we could encourage that kind of movement?

V. Gogolek: Well, it's actually not such a radical move. Your predecessors were looking at this and made recommendations in this regard. But what has happened is that, essentially, the act was conceived at a time when we had…. Most files were on paper in filing cabinets. Electronics were these huge Wang word processors. Of course, what they did is they created an electronic document to be printed out and put in the filing cabinet.

What we have now is…. Information in government and everywhere else is electronic. It's very easy to put it up. What we're seeing is that the Obama administration has put out a directive very recently on this. So a much larger government than the government of British Columbia has seen fit to do this.

[1045]

The city of Vancouver and the city of Nanaimo are both following, pushing down this road, to see if there are ways of making just general information available to the public, so that if you were having a public consultation on whatever topic, everybody has the same information. Nobody is arguing about: "Well, we didn't…." Somebody comes forward with a response to a government proposal, and they say: "Well, no, no. This would never work" or "We don't like it because…."

Then, the response is: "Well, you don't know what information we have." Well, if everybody has that information, you might get very good responses from the public because they will, then, be informed. They will have the same information as the public service in drawing up the proposals.
[ Page 28 ]

It opens up democracy, really, because at this point it's not just…. Between elections democracy continues. This is a way of including people in what their governments do, what their public bodies do. Your predecessors thought that this was a good idea. More and more governments are taking active measures to enact it, and we urge you to look at that.

D. Evans: If I can just add something to that. The whole aspect of government information management has to be depoliticized. There shouldn't be so much politics wrapped up the way government manages and discloses information. Most governments also see that it's an efficient and less costly way of delivering information to the public than….

You know, I think we've all got an idea of the labour involved in an FOI request. It's just completely out of proportion to the idea of a free-flowing body of information to the public. The Freedom of Information Act was not meant to be the routine way the public gets information. Unfortunately, it kind of has become that by default because the bureaucracy wants to follow rules. Individual civil servants don't want to make risky decisions.

So we need to make…. Routine disclosure just provides an efficient way of releasing the vast amount of information to the public, depoliticizing it and enriching this society with all this information, which is a huge resource. It is worth pointing out that in the United States there is no concept of Crown copyright or state copyright. Information does belong to the people. This is fully embedded in their polity. We think that should be the way it is in Canada as well.

R. Cantelon (Chair): I've asked the Clerk of Committees to give us that information regarding Shirley Bond's press release, and we will make it available to all the committee members so that they can better understand that. We'll get that as quickly as we can.

Any further questions?

S. Cadieux: I have one — probably a very brief one. In this document — the Failing FOI document — that you provided, on page 7 you referenced that the declining number of requests is a concern, but you cite no reasons for those declining requests.

In light of your recent comment about routine disclosure and the move in many jurisdictions to that, that would also, I would expect, result in declining FOI requests, which would not be disconcerting — would it?

D. Evans: No, it wouldn't.

S. Cadieux: Okay. So from your perspective, when you mention it in here on page 7 as a concern and as, I would guess, an indication that…. Because it is in this document Failing FOI, you're presenting that as justification for why, you know, it's failing: "See? There are less requests." But there is no follow-up information as to why the requests are declining. Do you have that information? Do you suppose that information…?

D. Evans: First of all, there is no program of routine release within the B.C. government.

S. Cadieux: No, no, no. I know that. I'm just saying….

D. Evans: Routine release does not happen within the B.C. government. So it's not routine release that is causing the decline of requests.

S. Cadieux: Oh no, I recognize that. I was just moving along.

D. Evans: Got you. Second of all, we get hundreds of complaints to our office, as does the Information and Privacy Commissioner. I can assure you that FOI requests are not going well, that FOI requesters are very dispirited — increasingly so — about the whole process, that the government, unfortunately, has many, many methods of delaying and avoiding and putting up barriers to requests. This is not anecdotal.

[1050]

S. Cadieux: Okay, so what you’re saying, then, is that that commentary is…. What you're suggesting is that it's the result of the other pieces in this document?

D. Evans: It’s the result of the delays and the increasing difficulty FOI requesters have. A lot of requests are abandoned because either the time stretches out so much that the information is not as valuable as when the person wanted it, or they just throw up their hands and give up, just say, "This is impossible" — which is tragic, for us.

So I can tell you, from the hundreds of complaints that we get, that it is the difficulty of the process that is making people abandon requests — resulting, we feel, in the decline of the number of requests.

S. Cadieux: Thanks for the clarification.

G. Gentner: I’ll try and be as simple as I can, because we're going to be dealing with this issue, I think, often enough. Independent Crown corporations — B.C. Ferries was mentioned. I'd like to know how the association wrestles with the public interest versus that of the private intellectual property, if you will — for example, of a P3.

Since 2004 P3s have become more and more the norm. What is your obligation to protect the interests
[ Page 29 ]
of the corporation that is a partner with the government that holds the information?

V. Gogolek: Well, we do have a recommendation regarding section 21, which is the section that protects the economic and intellectual property interests of third parties. It's a very legitimate question that somebody dealing with the government should have their most valuable intellectual property or genuinely confidential matters protected.

What has developed, though, in the interpretations of section 21 — and in a related matter section 17, the economic interests of the public body or the province — is it's harm-related.

There's a test which has been developed, showing that if the information was supplied, it has to be supplied in confidence. You may hear other presenters, as your predecessors did, saying: "The word 'supplied' — well, it's a little word, and we really would like you to change that." We would really rather you didn't, because the balance has been, we think, quite fairly drawn between the interests of private companies and individuals — third parties dealing with the government — in terms of protecting…. If they're able to show that there would be harm to them as they supplied information in confidence….

But what they can't get away with and what I think a lot of people in the private sector — and probably in government as well — would probably like to see is that we put the little proviso like a lot of people have in their e-mails: this e-mail is confidential and subject to privilege and shouldn't be released and should be destroyed or returned to us immediately. Well the commissioner has ruled that that isn't good enough.

You have to show it was supplied in confidence. You have to show harm. We think that draws the right balance — the way sections 21 and 17 are currently written and the interpretations currently provided. We would urge you to just keep them the way they are.

R. Sultan: I just wanted to explore for a moment the privacy implications of the evolving health care system. I'm sure we've all had the experience of going to our family doctor and seeing those racks and racks of paper files there with ancient prescriptions and scribbled notes, which are largely indecipherable, from some GP from the distant past. As one moves around the country you leave this trail of paper behind you. It certainly, to my knowledge, isn't coordinated.

Well, that world is changing, and these docs are being encouraged — in fact, perhaps at some point even compelled — to put this information in some electronic format so that at least the system can understand what's been happening to the medical history of an individual over time. This is very important, of course, in the health domain in trying to figure out what may or may not assist you, medically speaking.

Furthermore, the research as to what works and what doesn't work really requires extensive access to these databases. That's been an issue in the past, as I understand it.

[1055]

Finally, I was talking to a person from Genome B.C. the other day, and he pointed out that the evolution of personalized medicine based on your individual genome is the wave of the future.

We have not seen anything yet in terms of the intrusive nature of the requirements of a modern health system — which, I'm sure all of the politicians on this panel would agree, is probably first and foremost the number one issue, concern and priority of our constituents. They want the best, and to a large degree, B.C. delivers it, but of course it is at some cost.

I do appreciate the sensitivity of the trade-offs here in terms of the privacy of that information. Where do you draw the line? Would your association say: "Well, enough is enough. Let's stop right here. We've already divulged about as much as we should"?

D. Evans: A very good question. This throws an exact spotlight on the problem with privacy vis-à-vis the government. We all want excellent information about our health, and we want access to that information in addition. But the problem of the government having access….

I'm glad you brought up the genome. Do you want the government to be in possession of the very makeup of your body, let alone facts about your sex life, drugs you've taken, abortions and you name it?

I don't think any of us would think that the Minister of Health should have access to that information, but do you know that the act actually allows that? This should not be, and we feel it's unconstitutional. That collapses this barrier that the Supreme Court says should exist, where we have a right to protect a body of very personal information from the state.

The designing of legislation that allows the use of personal information while keeping that distance between the state and the citizen that we need to protect our freedoms, let alone the kind of meddling the state might want to do if it started getting that information — start saying, "Well, it's very expensive to have people smoking or engaging in certain sexual practices," you name it…. How do we square that circle? That's the question.

I think you're kind of laterally referring to the E-Health Act, which was passed about a year and some-odd months ago. That act, in our opinion, does not protect privacy in that it doesn't sufficiently control who within government can obtain your personal information. Should a manager of a department be able to? We can all agree that the minister shouldn't have access to a person's personal information. Should the deputy minister? As you descend farther down the civil service
[ Page 30 ]
ladder, where are you going to draw the line on who can have access to that?

From the bottom up, you know that we need this for billing purposes and for some analysis of what goes on in the health care system. The idea is to create a firewall above the information at a point at which you say: "Above this level, no one in government should have access to the personal information of an individual. Below this level, it's there for administrative purposes, carefully controlled. Only those who absolutely need to see it will see it."

That is kind of the anatomy of how you protect privacy, the constitutional right of privacy, within a system that needs so much personal information. Does that answer your question?

R. Sultan: I think it's helpful.

D. Evans: Great. Is there anything further I can…?

R. Cantelon (Chair): I'm going to have to, if I may, move forward too. We have a number of presenters, and I want to be fair to all of them.

D. Routley (Deputy Chair): Ron, could I just ask one summary question related to…?

R. Cantelon (Chair): I had Marc Dalton, and then I'll give it to you as the co-Chair.

M. Dalton: Just following up on the discussion earlier about concern that requests for FOIs are decreasing. In our presentation to the committee late last year it was mentioned that there were approximately 2,900 FOIs given to…. You know, here in British Columbia. That’s the highest in Canada, followed by Ontario with about 2,700. They have more than three times the population of British Columbia, yet we're doing as many FOIs.

I'm just trying to explore a little more your concern and how you can maybe comment on the fact that in British Columbia we have this very large number of FOIs in comparison to the rest of Canada.

[1100]

V. Gogolek: Part of it can be explained by the difference between personal and general requests. That's a global number of personal and general. We have ICBC. We have government insurance, which is a public body which receives a very large number of requests. Ontario doesn't have an equivalent, so that would probably account for some of it. That would probably be that and MCFD.

There are a lot of what are very standard requests, which are dealt with very routinely, and they go on through. But I would suggest that ICBC would certainly play a large part in that anomaly.

D. Evans: Over 70 percent of requests — the universe of requests — are for personal information. The kind of information that's aimed at keeping government accountable, transparent, and finding out more about public decision-making is 30-or-so percent.

I don't think our concern is the amount of requests at all. It wouldn't matter to me if ten requests were made per year if they were handled well without delay, efficiently, fairly, and with…. There's a duty to assist in the Act, which puts a heavy onus on the head of the public body to handle these requests in a fair, timely, full, cooperative manner. That is not happening.

Certainly, our analysis and the commissioner's analysis will both tell you that — delays, excessive fees which upon appeal are dropped very, very often or reduced. There is a series or a whole panoply of methods by which information requests are discouraged, and they're well documented.

R. Cantelon (Chair): Okay. I'll give it to the Deputy Chair, Doug Routley, for a summary question, a final question.

D. Routley (Deputy Chair): I'd like to first start by thanking the organization — you, Darrell, and you, Vincent, on behalf of the MLAs present and certainly opposition members on this side of the committee — for your contribution to democracy and defending the principles and values represented by freedom of information and privacy protection.

You started out, Darrell, by noting that currently the government has developed sophisticated methods to counter access to information. Could you describe what you meant by those sophisticated methods?

D. Evans: First of all, the burden on individual FOI managers is huge. It's estimated to be four times what it should be. Ditto the Information Commissioner's office.

The first method used is by underfunding the whole process within government and with the information commissioner. Certainly, delays could be handled very easily if more staff were added, but the system is underfunded — not only, apparently, just on its own but relative to other provinces. So that's number one.

Delay. A lot of these things, on appeal, are not found to be borne out. In other words, if you complain to the commissioner often, things resolve quite quickly. We've been handling one file for…. Is it four years or six years, the IBM file?

V. Gogolek: We had its fifth birthday party.

D. Evans: We had a fifth birthday party for a request for the IBM contract. The Maximus contract is another one. These are just longstanding FOI requests. But at the end of the day, we found, going through a four- or five-
[ Page 31 ]
or six-year process, that very little is actually going to end up being withheld. So I guess kicking and screaming is a good analogy for what's happening with the release of information when it's controversial.

R. Cantelon (Chair): Thank you again for your presentation, and thank you for not kicking and screaming during the presentation. It's been very useful to us all. We know that you laid a core foundation for our discussion, so thank you very much, gentlemen.

D. Evans: Thanks very much to the committee.

R. Cantelon (Chair): The next item on our agenda is Stanley Tromp.

Stanley, I'd like you to come forward and take a position representing the Canadian Association of Journalists. We have received your submission, and everyone has your summary comments as well. We'll give you half an hour to make your points, if you would, Stanley, and then move on to questions.

I'd like to note that Harry Lali has joined us as well.

S. Tromp: Thank you very much, Chair. My presentation shouldn't take that long. The report speaks for itself. I know I can't reasonably expect everyone to read the entire report. Just the recommendations would be sufficient. I know how valuable your time is.

[1105]

To begin, hon. Members, let us consider these words spoken by newly elected Premier Gordon Campbell in his victory-night speech of 2001: "We will bring in the most open and accountable government in Canada. I know some people say we'll soon forget about that, but I promise that we won't."

When it was passed in 1992, British Columbia's Freedom of Information and Protection of Privacy Act was hailed by some FOI commentators as the best in North America. Yet since then, in its practice, several flaws and shortcomings have become apparent, and the need for certain amendments is obvious.

While it certainly remains, overall, the best FOI law in Canada, it is still a very modest achievement within the world context. In fact, it is not even the best law in Canada in every single aspect, for some provinces' FOI laws, such as those of Quebec and Nova Scotia, have several sections much advanced over B.C.'s law, as will be shown.

Yet is there any valid reason why the B.C. FOI law could not be reformed so as to render it the best transparency law in the world? I spoke to B.C. legislative committees reviewing the FOI law twice before, in 1998 and 2003, yet no major positive amendments resulted from those committee reports. Although I believe you mean very well, can you provide any cause for hope that the political results will be different this time?

As both a political idealist and realist, I wish to place on the record today what needs to be done, while being well aware that the prospect of most of these new recommendations being passed into law eventually is slim indeed, and I wonder if I might have to return in five years again to plead all the same points.

In my 67 recommendations for reform here, I have tried to cover every B.C. FOI topic from A to Z. Although as a journalist, after making hundreds of FOI requests and studying FOI law and theory for the past 15 years, I still believe I do not have all the answers, nor does any single individual or institution. Yet I do believe that many of these recommendations merit consideration. In the end, of course, the choices remain yours.

Here's why it matters. A legislative review of an FOI statute may appear to some readers very remote from their practical daily concerns. Why in fact should the public care if we have an effective FOI law?

As a kind of answer, I've collected and posted on my website summaries of B.C. news stories from the past two years on issues as diverse as health, safety, government waste, public security and environmental risks. They all share two common features. All reveal issues vital to the public interest — that is, not merely topics the public might find interesting. And all were made possible through B.C. FOI requests.

On occasion we need to view the human face on abstract legal questions, as we can here. These topics include:

(1) B.C. Coroners Service statistics obtained through FOI note that at least 54 people have died on SkyTrain tracks and platforms since 1985, yet there is no plan to retrofit any SkyTrain platforms with barriers to stop people from falling or jumping on tracks.

(2) A briefing note prepared for the B.C. Housing and Social Development Ministry advised there would be "significant fire safety concerns with five- and six-storey wood-frame buildings," yet the government still moved ahead with its plan to permit the construction of those buildings.

(3) Many of the trucks used to make B.C.'s highways safe are themselves unsafe. The violations committed by the private heavy commercial vehicles are the type of infractions targeted under a new safety program announced by the provincial government.

(4) Using the FOI, the Vancouver Sun made detailed inspection data for all licensed care facilities in the Lower Mainland available on-line for the first time. The Sun also revealed many records of day care centre inspections.

These stories require a second look, for when they appear in a daily newspaper, they may be forgotten within days, but many should not be, because we could be living continuously with the unresolved problems that they have raised.

In section 25 of the act, called the public interest override, it states that government must release such
[ Page 32 ]
information proactively, whether or not an FOI request for access was made. In such cases, it seems it should have done so but did not. In my recommendation 49 I urged the government to find ways to implement proactive publication on such matters.

[1110]

In response to the common governmental complaints of the cost to taxpayers of the FOI system, one could well argue the reverse is true, because public outrage at government waste, exposed through FOI requests, prompts the state to cut such waste or even prevent it before it occurs. Hence, the modest annual cost of FOI may be an impressive bargain — all the more reason to reduce 2010 Olympic Games secrecy.

What about British Columbia in the world context? Most of the arguments regarding B.C. FOI Act reform are by now familiar, so I wish to consider another perspective on the issue, one not explored yet. We need instead to continuously reframe and reconceptualize the act in the light of rapidly changing international and historical contexts. This could positively alter what British Columbians come to expect and perhaps even demand for their own rights to information.

Exemplary sections of our FOI Act have been adopted in other jurisdictions' FOI laws, so why not vice versa? Since 2004 our knowledge and experience of the FOI subject have multiplied, and we can now draw more accurate conclusions about it.

To this end, I created the World FOI Chart two years ago as an aid to FOI scholars and posted it to my website. This chart cross-references by topic key primary documents on freedom-of-information law, including the texts of all 73 national FOI laws, all the Canadian provincial FOI laws and the commentaries of 14 global and 17 Canadian political organizations.

On the chart, upon scrolling down to row 15, you can compare B.C.'s FOI Act, section by section, to all the other laws. Though this chart took a year full-time to create, it was worth it because the topic is really more fascinating than it may appear at first. In fact, the whole ground has shifted. Ten years ago we did not have clear global standards that each FOI law could be measured up to, but now we do.

British Columbia surely needs to at least raise its own FOI law up to the best standards of the Commonwealth nations and then, hopefully, look beyond the Commonwealth to consider the rest of the world. This means not leaping into the future but merely stepping into the present.

Even the United Kingdom, B.C.'s model for parliamentary secrecy, has well outpaced us on many critical points, although frankly it still lags behind us on a few others. Some Canadian officials, to deter FOI reforms, still invoke the great tradition of Westminster-style confidentiality.

If so, how do they explain why the U.K. Freedom of Information Act, which came into effect in 2005, has several features lacking in our law, such as a harms test for policy advice, a 20-day response deadline, a 30-year limit for legal advice records and coverage of a vastly wider range of quasi-governmental bodies? I might add that the average response time in global FOI laws is two weeks, not 30 days.

What about B.C. in the Canadian context? In Nova Scotia's FOI law, policy advice can be released in five years; in B.C. it is ten years. The cabinet record exemption there is discretionary; here it is mandatory. Records there may be withheld; here they must be. They also have a much broader detailed definition of what is a public body for FOI purposes than we do.

In Quebec's FOI law, more policy advice records can be revealed, and more public bodies are covered. The response time in Quebec is 20 days; here it's 30. Quebec's law has the broadest scope of penalties for obstructionism. It is also the only provincial FOI law that mandates record management in a way that assists applicants. Finally, Quebec is the only province that guarantees the public's right to information in its provincial constitution.

It seems clear what needs to be done. We do not have to reinvent the FOI wheel from scratch when the wheel works well elsewhere. Instead, we need the political will for reform. Yet I fear that the main incentive to block FOI law improvements may be emerging from the senior bureaucracy. Last December the commissioner sought a $400,000 legal budget to cover the growing numbers of court challenges to its ruling by the B.C. government and other public bodies — up by 50 percent over 2008.

As Vaughn Palmer wrote: "No wonder the commissioner wants to be able to hire his own high-priced legal help to stand up to all the government-funded lawyers swarming over him and his office." Above all, I plead with the bureaucracy not to oppose needed FOI Act reforms, especially in sections 12 and 13.

There are other approaches. On his very first day in office, January 21, 2009, U.S. President Barack Obama issued an executive order to all government agencies to reverse the default secrecy position of his predecessor, writing: "The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.… All agencies should adopt a presumption in favour of disclosure in order to renew their commitment to the principles embodied in FOIA and to usher in a new era of open government."

[1115]

A similar order from the Premier to the B.C. public service would be most welcome.

Let me speak about a subject that may be of the greatest interest to all of us in the city this month. That is, of course, the 2010 Olympic Games. For some journalists the most challenging of all games has turned out
[ Page 33 ]
to be trying to find information about its costs and processes.

For example, the B.C. government refused to include VANOC, the Olympic organizing committee, under our FOI law. Yet the similar entity that manages the 2012 Olympic Games in Britain, the Olympic Delivery Authority, ODA, is covered by the British FOI law. FOI requests there have produced news stories about the ODA in England.

Secondly, it was reported that the B.C. government "was given access to 3,200 tickets at the cost of nearly $1 million." The public needs more detail than this, I believe, so last August I made an FOI request to the ministry responsible for the 2012 games for: "(1) the total number of such allotted tickets that the government holds, the total cost, the categories of recipients that tickets will be allotted to and the costs of these; (2) a list of how many tickets will go to which government branches, companies, organizations, officials and individuals; (3) your policy and practice on the allotment of such tickets."

After months of delay, the ministry replied. It said that no records were found for item 2 and that items 1 and 3 were withheld completely under the B.C. FOI law — sections 12, cabinet records; 13, policy advice; 16, harm to intergovernmental relations; and 17, economic harm to government. Talk about going overboard.

Yet I did receive many similar records from Heritage Canada under the federal Access to Information Act and B.C. civic governments, which released them under our B.C. FOI law — sometimes even proactively. This is taxpayers' money.

Last November the Minister for the Olympics told CTV News that the ticket distribution policy would be revealed soon. But now we hear that taxpayers won't learn that policy until the games are over. She said: "Until we know actually who's going to be in the seat, we'll have full disclosure at the end." But at least partial disclosure is possible now — that is, all from what we know today. The games start in ten days. Perhaps it is not too late. Perhaps you could urge this be done.

Finally, and worst of all, the Olympic Games secretariat actually stopped recording minutes of its meetings after being annoyed by my FOI requests for them. As well, VANOC used to forward copies of its meeting minutes to the secretariat, and I did get those by FOI, but then VANOC stopped doing that, and my access was cut off. I twice obtained hundreds of pages of minutes from both entities through quarterly requests under the act.

An editorial in the Asian Pacific Post said: "This paper and the South Asian Post are big supporters of the 2010 Olympic Games in Vancouver, yet the increasing secrecy surrounding the 2010 games is creating a credibility gap between VANOC and its supporters, let alone its detractors. Now with the minutes gone, the media and the public have to rely on oral governance of VANOC."

Why did this happen? Who knows? As the Vancouver Province paper reported: "The secretariat said keeping the minutes were 'not an effective management tool.' The move, it says, is 'consistent with cross-government practices and legislation.'" But what does that mean? Is this a whole provincial government of non–minute taking departments? I've asked the government to explain but have received no reply. I hope you can find the answer to that question.

The federal Conservative Party, running for office in 2006, pledged to amend the Access to Information Act to "oblige public officials to create the records necessary to document their actions and decisions" — a promise as yet unfulfilled.

Can you imagine, for example, if this committee did not record any minutes? How could anyone recall exactly what was said a week, a month or a year ago? How could any lasting value or purpose be derived from its work without written records?

While the letter of our FOI law may be silent on this matter, could there be any worse violation of the spirit of the law than this? This recent dangerous shift towards so-called oral government is really a tragedy for the public interest. Oral government is bad government.

On another topic, one of the most serious problems, as FIPA noted, is the shrinking scope of FOI coverage. Public bodies such as UBC are creating wholly owned subsidiaries that they claim are exempt from the FOI Act. One expects that B.C. legislators, in passing the act in 1992, did not foresee this practice of shell companies arising, which circumvents the act's letter and spirit.

[1120]

Closer to home, I also believe that records of parliamentary committees — including this one, indeed — should be covered by the law. Some may argue that since they only recommend and do not make decisions, there is little need to include them in the act's scope.

I disagree. The in-camera minutes and private reports of these committees and what was urged in camera may be extremely important, even if they only give advice, for the advice could be ultimately influential on law-making. Of course, the exemptions of the law would apply to such records to protect truly necessary information.

The government also said that government caucus committees are not covered by the law, but I believe they are. We had a dispute on that at the commissioner's office.

As well, the exclusion of the Legislative Assembly Management Committee is incomprehensible and indefensible, due in part to the large spending of taxpayers' funds. In another regard, it could entail a risk to public health and safety.

As a newspaper story noted this year, the B.C. legislative buildings would likely collapse into rubble during
[ Page 34 ]
an inevitable earthquake, according to two studies. The second study in 2006 has never been seen by the public because government labelled it confidential. The story said:

"Why the provincial government has not paid for the critical seismic upgrades remains unknown. Repairs are handled by MLAs who sit on the Legislative Assembly Management Committee, but the committee doesn't discuss its decisions or release its reports, for it is not subject to the FOI law.

"A partial collapse of the Legislature when it is in session could be catastrophic for the more than 500 people who work in the buildings.

"There was $2 million in non-structural work done in 2006-07 to address falling hazards, such as loose gargoyles that could crush bystanders."

What about the road forward? In this province we have, if enough political will and imagination are present, at least a chance of bringing our law into the second decade of the 21st century while still protecting all truly necessary secrets. This could be done because one of the most appealing things about the FOI topic is that it can transcend political parties' ideologies.

Such is the challenge for you, hon. Members. British Columbia is reputed to be a land of visionaries and pioneers. The government letterhead proclaims that B.C. is "the best place on earth." To conform to this bold — and, to some people, contentious — statement, as Vancouver welcomes the world to the city this month for the Olympics, why not think big, take an overarching global vision, and implement the best FOI act in the world?

We have already moved partly towards that goal by passing the best FOI law in Canada. Why not finish the task that was begun in 1992? Why should B.C. accept being second best to any other jurisdiction on any FOI-related matter and not become a province that others can look to for leadership on this vital subject? I cannot think of a single reason why not. Can you?

In the end, there can be no real accountability without transparency. By raising up our law, you can greatly enhance our own democracy and create a lasting legacy for your constituents.

Thank you. I'd be most pleased to answer any questions.

R. Cantelon (Chair): Thank you very much, Mr. Tromp. We now have some time for questions. The floor is open.

G. Gentner: I'm just interested. What's your e-mail address or your website, Mr. Tromp? I want to inquire. I'm quite intrigued with what you had to say.

S. Tromp: Oh, sure. It's on the e-mail I sent to all the members earlier, and it's on the report and the recommendations as well. I can resend that if you wish.

R. Cantelon (Chair): Further questions?

R. Sultan: Mr. Tromp, I would suggest you stop the presses because I'm going to make an unauthorized FOI disclosure.

Concerning all those free tickets that Mr. Smyth keeps talking about in his column in the Province…. I sort of shrugged it off. I said: "At least I'm going to get to see a wonderful event, I'm sure, and I guess I can withstand the journalistic barbs in the process." That was the first difficulty, you might say, we learned to endure.

The second difficulty arose when it turned out we aren't getting any free tickets — so a second deprivation.

I would hope that Mr. Smyth might correct his column at some early date in the future.

D. Routley (Deputy Chair): Thank you, Mr. Tromp. You, in a sense, challenged the committee to make a request for more openness around the 2010 Olympic costing. In order to explore that a bit further, could you compare some of the previous Olympic Games and the access to information that was allotted — as well as, if you know the numbers, how the initial projections worked out in terms of final costs?

[1125]

S. Tromp: I've not done a study of previous Olympic Games costing. In the United States it's generally more open. But I've looked at the future one, the British Olympic Delivery Authority of 2012, which is covered by the law. At websites doing Google searches you can see many stories about that.

We need to know more about the cost before this event occurs. With loss of access to the minutes, I wish I could answer that question. But I'm afraid I'm not able to. Perhaps other government spokesmen who may come here later could speak more to it, because they have access to records that I don't.

D. Routley (Deputy Chair): In follow-up to that, I would look to tomorrow's meeting, Mr. Chair, with open time before the hearing starts. Could the Chair add to the agenda an opportunity for the committee to discuss the notion of making a request to government for a more open accounting of the 2010 costing?

R. Cantelon (Chair): Well, I think what I'll say is that we'll discuss all recommendations, the fulsome of recommendations, as we move forward. But the time is open for the public, and the public might well appear. So I don't want to preclude that. I think we need to gather everything in before we launch into our discussions and recommendations.

J. Kwan: In terms of comparing B.C. to other jurisdictions relative to our FOI laws and their application, you mentioned two jurisdictions, I think — Nova Scotia and Quebec — who are in advance in some areas.
[ Page 35 ]
I'm wondering: have you also compared the stats in which…? For example, earlier we had a presentation that said over 50 percent of the FOI requests actually exceeded the 30-day delay.

Then also, I presume — and I don't have the stats here with me…. You might actually know it, because I know you've done a lot of work in this area. A number of cases have been abandoned for a variety of reasons because it's taking too long, it's too costly and those kinds of things.

Do you have that information, as well, and that comparison between B.C. and that of other jurisdictions?

S. Tromp: Well, that's a very good question. I wish I had that information, but I was doing a comparative study of FOI statutes alone. That took a year, full-time. To do a study of practices would take another two years, which I wish I had. Of course, when I make claims about comparison in law, I make no claim about how well they operate in practice. That's a whole separate field.

The commissioner's office of those other jurisdictions will be able to answer all those questions. I wish I could. But I do emphasize that they don't always work. The law doesn't always work in practice as it does here as well. I wish I could answer that, but future research, I hope, will do that for us.

J. Kwan: Maybe that's a question we can put to the office itself. I think they're going to be back on our agenda, so I'd be interested in getting that information.

The other question is this. What about the issue of penalty? That's been raised as well. Maybe that's unfair to ask you, because obviously you're just an individual citizen who is doing a tremendous job, actually, trying to gather this information in the public interest.

But I'm curious if you have any information on the penalty issue itself in the jurisdictions where they have a penalty clause. Again the question is its application. What is the range of penalties? What does it mean when someone violates the timelines that have been set, let's say, for access to the information? Where the penalty clause is attached, how has that been implemented? I'd be interested in that, because it would be interesting for B.C. to look at those examples for deliberation.

S. Tromp: Yes, it certainly is a most interesting topic, and I have a chapter of that in my report as my recommendations 55 and 56. One good example would be in the federal act. I advise amending B.C.'s act, section 74, to prohibit and penalize persons for the unauthorized record destruction and handling in the FOI process.

With the wording of the Canadian Access to Information Act, section 67.1, that was an amendment to the act in 1999 by the federal government. That would be most advisable for B.C. as well. There are many recommendations for specific penalties on page 133 of my report, from article 19's model FOI law and a Commonwealth Secretariat's model FOI bill. So there's much to be done on that score. There's a chapter in here on it.

[1130]

J. Kwan: I must confess I received your document. I hadn't had a chance to go through all of it, although I certainly had a look through various parts of it. I'll go back to it, though, and review those chapters and find those clauses. But that would also be an interesting area which we should canvass with the office as well to get further information on it.

R. Cantelon (Chair): I hope, Jenny, that you'll make a note of your question when we do have the….

J. Kwan: It's all in Hansard, and I'm sure the Clerk's office is keeping very good track of all of this.

K. Conroy: You said that you've made a number of recommendations in 2004, and you said none of them have been implemented. Do you have a short form, Cole's Notes, of those recommendations that we could see? It's one of the things we were looking at — the recommendations that were made in 2004 and what has actually been implemented and what hasn't. Why recreate the wheel?

Actually, I'm glad, Darrell, you're still here, because I'd say the same thing to you guys. If you could give us a copy of those too, I think that would be really helpful — just a short form of what was recommended then, what hasn't been implemented, because it's still pertinent, obviously. So if we could get that.

Another question. When you're accessing information as a journalist, accessing e-mails or PIN-to-PIN e-mails, it seems that…. Recently we heard that a minister suggested that a committee develop e-mails between each other on Gmail because it wasn't accessible. Is that an issue with the journalists? Is it something you can access, or does that in effect eliminate the accessibility to those communications?

S. Tromp: To answer the first question, I don't recall all that I recommended back then, but it's most of the same. I believe almost all the recommendations I made back then have been incorporated into my new number of 67 recommendations today. At the front of my book I have the summary of the ten most important recommendations, and they're mostly the same. They overlap almost completely with what FIPA wants as well.

The second question. Yes, that's an area of major concern — that the law always falls behind technology. Digital and communications technology advances so quickly, and law reform is so slow. There is always a disconnect between them.

I have a few pages in my book about just that question about record retention and what a record for government
[ Page 36 ]
FOI purposes is. There was a debate in the Legislature about that, which I reference here. The Premier spoke to that and what should be considered by bureaucrats private or public e-mail.

We urge that B.C. also create a complete record management act. I believe the librarians have complained that we are the only province in Canada that lacks one, and that would deal with all these questions about record creation — such as even Olympic minutes — their retention and disposal from start to finish and that it be revised continuously to keep up with new technologies. It's very important.

R. Cantelon (Chair): Thank you.

D. Horne: Thanks, Stanley, for your comments. Just a couple of questions for you, really simply. You talk about…. Obviously this is about freedom of information and not about the Olympics. But I did have one question on your point earlier about London and their authority. I understand that that authority is actually set up by the government to provide infrastructure and to build the venues in London and that basically that authority that you quoted isn't actually the organizing committee that London gave us.

S. Tromp: Well, there are two parts. There's an earlier authority that does the construction, and there's the other one that manages the putting on of the games — the ODA — which is covered by the law.

D. Horne: Is it covered by the law as well?

S. Tromp: Yes. The second one, the Olympic Delivery Authority, is covered, but the earlier one is not.

D. Horne: But the delivery authority is also a government entity — right?

S. Tromp: It's a quasi-governmental entity, much like VANOC is. It was created by government and is quasi-independent.

D. Horne: VANOC isn't a government entity. It's a private entity.

S. Tromp: No. Quasi — I mean created by government but run independently.

D. Horne: Because the Olympic organizing committee, which was actually organizing the games…. I believe both the entities you're talking about are actually government entities, which obviously should be covered by access to freedom of information.

The other question I have, which I think probably goes more to a point…. You're very well versed on freedom of information, obviously. You do make many, many requests to freedom of information, so obviously, I think you have a wealth of information for this committee.

[1135]

In an average year — let's say last year — how many freedom-of-information requests would you personally make?

S. Tromp: Oh, it varies from year to year. Sometimes 200 or 300, I suppose, but that includes, also, federal Access to Information Act requests as well.

D. Horne: Obviously, as a journalist you'd be using those access-to-information requests in order to publish articles or to bring this information to the public. Of those 300 information requests, how many would result in an article?

S. Tromp: The obstacles to the working of the FOI system are so large that perhaps one in ten, I would hope, and that's just how it was. I wish it was more. But the idea that sometimes is raised, that journalists use FOI just to sell newspapers, is not realistic because the public will be more interested in reading things about trivia, about Hollywood movie stars and tabloid type of information than in dry policy reports about governmental issues revealed by FOI requests.

R. Cantelon (Chair): I have Marc Dalton and then Jenny Kwan finally.

M. Dalton: Yes, Stanley, just along with what Doug is saying here, you just said last year approximately a couple of hundred FOIs — 200 or 300 a year — and one that you mentioned was a couple of hundred pages.

How significant have your costs or your company costs been? Has there been an expenditure? I'm interested in knowing that — how much it has cost. And maybe estimate the cost towards the province. I know that this is freedom of information, but there is the whole idea of what your cost is, what the newspapers are paying, as opposed to what it is costing the province. Can you comment on that, please?

S. Tromp: Yes. Well, I can't really speak for newspaper management, because I work as a freelance reporter, but I can tell you that I have to abandon many, many of these FOI requests because the fee estimates are just too high, ranging in the hundreds or even thousands of dollars, so have to be abandoned. The government can describe more specific numbers on how much the processing for each would be.

It is not easy. Even newspapers are suffering so much at this time, and some are going bankrupt. They can barely afford to pay FOI fees either, so the system is in decline in that sense.
[ Page 37 ]

M. Dalton: What percentage would you say are the fees paid out of the FOI requests that you are making?

S. Tromp: Fees. I don't know the exact percentage. I can get that for you later. But it's not a large amount. It's sometimes manageable, but more often not.

J. Kwan: Actually, it's interesting on the fee question. I have to say, probably, in all my years in politics…. I recently made an FOI request to the Ministry of Small Business for records, documents, related to the ministry's activity in hosting Olympic-related events and activities and the costs associated with it. I actually got a fee attached to it to the tune of $10,300.

That was actually, I think, my first FOI request as an elected official, and I was shocked, I have to say. I made a personal request to that ministry, and it came back with a fee of $10,300 — never mind me, in my capacity in my job — to try and get access to this information. I can't imagine that an individual in the public realm would be able to pay that kind of money to get what should have been on the public record.

We were asked then to narrow the request. I narrowed the request. The fee came back to be the same amount. There was no difference. It turned out that there were some contracts that been entered into with various companies, presumably, on activities related to the Olympics that was an expenditure to the Ministry of Small Business. Because the fee didn't change, we were trying to figure out how were going to manage this situation.

[1140]

In any event, that's sort of an offside issue. The issue of cost is a major issue in terms of access to information, no doubt, and I've experienced it firsthand, and it sounded like, from the previous questioner, that's your situation too. This relates to, then, the previous presentation from the B.C. Freedom of Information and Privacy Association. This has got to be an issue related to how records are kept — right? If records are kept in such a way that access would not require thousands of dollars to retrieve, then that would actually facilitate access to information by members of the public.

To that end, on the access question: did you do comparisons with B.C.'s legislation to that of other jurisdictions on the methods of record keeping?

S. Tromp: Yes. As I mentioned, in Quebec, for example, the law has a section that requires government to manage records and store them in a way that assists applicants.

I'd just like to respond to the previous questioners about the cost of FOI to government. First of all, as I mentioned before, it can save the government costs because it reveals waste via FOI requests, which the public response would cause government to cut the waste.

Secondly, if there was more routine release, there wouldn't be any need for FOI requests. The government creates its own costs in that manner. It could release hundreds of types of more information in records on line. Otherwise, there would be no need for an FOI process or costs, as many other jurisdictions do. All the minutes for the Olympic secretariat, for example, after they have sensitive information removed, could be posted on line.

Government just creates its own inefficiencies, and the applicant cannot be blamed for that — that the government does not do more routine release as it should and as other jurisdictions do.

J. Kwan: Just on that notion, then, in the jurisdictions where they do this routinely and so on, what's the budget allocated — do you know? — to those ministries to do that work up front?

S. Tromp: I don't know the budget offhand. I can research that and find it for you. If it was done here, I suppose it would be likely less than the cost of processing FOI requests, what with the appeals and so on.

J. Kwan: I think that would be actually a very important piece of information, if not through the presenter, Mr. Tromp, perhaps through our own office. They may be able to obtain that information for us.

I think the facility to access…. The cost is prohibitive. Just in my own example, it's just mind-boggling to try and get access to information that should have been on the public record, and that would be contracts entered into by the ministry in hosting guests for the Olympic venue. That should be on the public record, but yet it would cost $10,300 to access that. It's just shocking to me.

So thank you for that.

Interjection.

J. Kwan: Yeah, I'm sure we won't get it until after the Olympics — that is, if we actually get it. So there's also the timeline question.

R. Cantelon (Chair): Thank you very much, Mr. Tromp. You've certainly challenged us and excited this committee with some very interesting discussions it will have, I'm sure. I want to thank you very much for your presentation and for your valuable input. Thank you very much.

S. Tromp: Thank you for listening.

R. Cantelon (Chair): I'd now like to call our next presenter forward. We've got Chris Budgell to come forward and make his presentation. We're more or less on time. This presentation is allowed for a 15-minute presenta-
[ Page 38 ]
tion, followed by ten minutes of questions. So we'd like to call this witness forward to make his presentation.

Chris, the floor is yours.

C. Budgell: Okay. First thing I'll say is that I've got a little bit of a hearing problem, so I've heard very little of what's transpired so far. I got the general sense of it. I'd like to encourage you to make this interactive. So bear with me if I ask you to repeat something.

I don't have a prepared speech, but you've just been given a small package of material that relates to the case I have before the OIPC right now.

[1145]

I'm a private citizen. I don't normally pursue FOI requests. This is the first one I've ever done. It might well be the last one, but it might not. I'm not an expert on the FOI legislation or the regime, except based on my own experience, so I can't make detailed recommendations about the act itself. But I think you can benefit from hearing from an individual that's gone through one particular case, which is not yet over, and my perspective on what it all means.

I think what I'll do now is ask you to take a look at what's in front of you. I went to the OIPC just over two years ago. It has been a very long, frustrating process, but I've dealt with a lot of government agencies before that, so I wasn't particularly surprised. In the end I said to myself: "Well, you know, just hang in there. Just keep going."

I have a lot of documentation, and I anticipate that, at some point, all of that documentation and everything else I've been working on for the last eight or ten years that's led to this is all going to go up on the Internet eventually in one big website. Maybe I'll write a book as well.

What you've got in front of you is just a very small amount. I printed it off last night just to give you an idea of what this is about, because my experience with the OIPC…. I think I'm justified in saying that maybe this frustrating experience has something to do with the substance of my case.

I'm just going to quickly take you through what's in front of you — okay? There are six documents there. They're all a single page except for the fourth one, which is six pages. Now, like I said, I started this process over two years ago. So aside from the very last page, which is very interesting because it goes back to 1997, and it has Mr. Lali's name on it…. He'll be interested in that. Aside from that last one, these are in chronological order. They start with the 12th of February last year, so we're talking almost a year ago.

It took me over a year to convince the OIPC that this case needed to go to an inquiry. In that period of more than a year they did nothing. I dealt with a number of people. The story was that there was supposed to be some sort of investigation. There was supposed to be some attempt at mediation, but I know for sure — and I have the documentation to prove — that there was none of that. They kept just putting off the process, granting themselves, the way they put it, the right to postpone the process, or whatever.

Anyway, this e-mail is part of my track of what took place. What it shows is that I was on the phone with this person on that day, and for the third time, I heard someone say: "Well, we're going to have to arbitrarily grant ourselves an extension."

I got angry with that person, and I said, "No you're not. I'm going to be writing to the commission," and I hung up on her. Very shortly afterwards I received this e-mail. Bang. "Okay. We're going to give you your inquiry." Maybe I should have gotten angry on the phone a year before that — I don't know. Anyway, there's the record that shows what happened there.

Now, the next page. We went through some process after that. The OIPC inquiry process starts with a formal invitation. This one page was my response to that invitation. This was my case. Two paragraphs. It speaks for itself.

What I got from the respondent, which interestingly, of course, is the Ministry of Attorney General, was this set of documents, which I had considered sending to all of you. I've got it in electronic form. It's seven files — a total of over four megabytes — put together by a team of lawyers. I should have hired my own law firm, but unfortunately, I can't afford that kind of thing.

[1150]

I received this in May, and I was a little bit daunted by it, but I've been through this kind of thing before, so I wasn't too daunted. There was a single question in here — a statement that was made that I kind of had anticipated. I figured this is where the whole issue lies, this one statement.

It was about an entity referred to as Her Majesty the Queen in Right of the Province of British Columbia. My question was: what does that term mean? I was serious in asking that question. I didn't think I had — bang! — the answer, but I knew that the answer was important. So I was looking around to find the answer, and I went on the Net and couldn't find the answer.

Then I phoned George MacMinn's office. I figured: "I'll talk to George. He'll know." I phoned him a couple of times, and I never got a call back. But then I got this next page here, this e-mail from one of his people. This is somebody you probably know. Dismissively, he says: "We can't answer your question because that would be legal advice, but go look at the Interpretation Act."

Now, this is a pretty important document to me because it spells out what the problem is. I looked at the Interpretation Act, and it doesn't answer the question. So I went back to the Internet and I did find what I thought was the answer on a website in Ottawa. The federal government had some information.
[ Page 39 ]

But then I went a little bit further, and I contacted somebody who is reputedly the leading constitutional law expert in Canada, Peter Hogg in Toronto. He said: "You're absolutely right." So I have an e-mail from him saying: "You're right."

The next document is the six-page response that I made to this legal package. What you don't have there, though, are all the exhibits. But like I say, I can send people all of this stuff. It's going to end up on the Internet anyway.

Right after that six pages…. That was submitted on June 10, which was the absolute deadline for this process according to the OIPC. Then the very next day the Ministry of Attorney General sent this one-page letter to the OIPC, copied to me, and it talks about me defaming — as it says at the bottom — a distinguished lawyer. You probably know that person too.

When I got this, I said: "Pretty much confirmed my case for me." This was what I'd call a knee-jerk reaction. The OIPC never acknowledged this letter, to my knowledge. I could say that's where it stands. So I've been on the phone. I've e-mailed. I've talked to them to see what's going to happen.

Okay, we've gotten a little bit further, because on January 6, finally, I talked to the registrar on the phone. She reluctantly said: "The order from your case is being drafted." Maybe it is; maybe it isn't. I don't know. If it doesn't show up fairly soon, then I'm going to go to court and get an order against the OIPC. But I have a suspicion it is going to show up fairly soon, after all this delay.

The last page kind of relates to the substance of my case. Mr. Lali was at a meeting way back in 1997. You probably don't even remember this meeting. I'd like to know what took place in that meeting. But if you've got some information for me, I'd love you to share it with me. I'd love a video from that meeting.

You can get a sense from all of this of what's going on. I'm just one citizen. I'm chasing down one issue. I want to get access to some documents here. The Attorney General wouldn't tell me whether the documents existed or not. I didn't know what they looked like. I just kind of guessed. Well, you know, you had a six-year process here. There must have been some documents, so I asked for them.

They wouldn't tell me whether there were any or not. They just said: "If there are any, you're not entitled to them because of solicitor-client privilege." So I said: "Who's the client?" They said: "That's a secret. We won't tell you."

The OIPC wouldn't tell me either, until this finally showed up, and it said: "Well, the client is Her Majesty the Queen in Right of the Province of British Columbia." There probably aren't one in a thousand people in B.C. that know what that term means, including me until I dug into it and found out about it.

[1155]

What's my impression of the whole situation?

Oh, one other thing. Mr. Loukidelis has resigned, the same day that I got another letter from the OIPC, actually — the 19th. Now he's going to be Deputy AG, in charge of my adversary here. So this is looking pretty interesting.

Any questions?

R. Cantelon (Chair): Questions from the committee? I don't see anybody putting any forward.

C. Budgell: You see my point, though. I've been working on this case for a long, long time. The documents, it turned out — I learned from here — constitute 13 drawers, seven bankers boxes and a quantity of electronic documents. And I want to see all of them.

I said: "I don't want copies. I want to come to Victoria, and I want to go through that whole lot. That's what I intend to do."

This is a very serious case with huge, huge consequences to it. The OIPC has done what every other agency I've dealt with has done. It has stonewalled. I've got a long track record of e-mails and silly phone calls.

Mr. Loukidelis's reputation seemed to be stellar. What I'm saying to myself is: maybe that was a warranted reputation and maybe he's going to make a dandy Deputy Attorney General. I really don't know. But I think I'm going to find out.

R. Cantelon (Chair): Well, thank you, and I think your case represents a concern and a frustration that is felt and that we've heard from other people.

C. Budgell: I think the fact that you're not asking me any questions says something in itself.

I'm available through e-mail or whatever. I had thought about sending all of you a bunch of stuff, including the 4.3 megabyte submission. I decided against doing that. But I'm always available for dialogue with anybody.

What I will do is send each of you a short e-mail so you know exactly where to contact me. I suggest you look at that slim package I've given you and consider what it likely means.

R. Cantelon (Chair): Well, we appreciate any information. We'd refer you to sending it to the Clerk, who will forward it on. I certainly accept that you've made a representation of a specific example.

We're here, of course, to look at broader ways to systemically change the act or recommend changes to how the act might better perform to avoid concerns that you have. We'd certainly appreciate if you have any comments specifically on how to fix what you would view to be broken. We'd appreciate hearing that.

We're not really here to act as an ombudsman, as I'm sure you can appreciate, but we'll make sure that your
[ Page 40 ]
comments are forwarded to Paul Fraser, who's the acting….

C. Budgell: Okay, let me point out two things about the act. Section 14, of course, is what they used to fend me off — solicitor-client privilege. Most people have no idea what that term means. One of the things I said to somebody is that it appears to me that this solicitor-client privilege concept is now the Swiss army knife of tools being used by government. When I think of government, I think of lawyers to fend off the public. So you've got a problem with section 14, and the OIPC knows that.

Secondly, section 56 is very clear. It stipulates a 90-day time limit for the OIPC itself to complete inquiries, and it's not even close. I've been two years at it.

This has been brought up before, apparently, with previous committees. You have to do something about section 56. I'm not telling you what to do about it, but you've got to do something about it. If you can't think of an answer, then just take it out of there because the commissioner is breaking the law on an ongoing basis by not delivering these orders in time.

R. Cantelon (Chair): Well, I see no further questions. Thank you very much for your presentation, Chris.

C. Budgell: You're welcome.

R. Cantelon (Chair): I'd now like to call another witness forward to the committee — Donna Liberson.

Donna, welcome to the committee hearing. The floor is yours.

D. Liberson: First of all, I'd like to thank the Chair and the committee for giving us this opportunity to present our brief.

[1200]

We are making this presentation to your committee to persuade you that the British Columbia Society for the Prevention of Cruelty to Animals, the BCSPCA, should be subject to the Freedom of Information and Privacy Act. I am submitting this brief on behalf of 11 animal charity and welfare groups.

The BCSPCA appears to be a public-private entity and to be presently excluded from the provisions of the act. In reviewing the scope of the Freedom of Information and Privacy Act in 2004, the prior committee, appointed under section 80 of the act, indicated that it would not normally condone the practice of exempting the entire records of a public-private entity because of its negative impact on access rates, but came to the conclusion that the decision to extend or reduce the scope of the act ought to be made by the governing party rather than by private members serving on an all-party parliamentary committee.

However, the prior committee did recognize one case of exclusion that deserves special mention. That case of exclusion was the BCSPCA. The prior committee came to the conclusion that the BCSPCA was an anomaly — on the one hand, a public body in terms of having statutory authority to investigate animal cruelty, to seize animals from private citizens and to dispose of such animals. On the other hand, it was a non-profit society which would otherwise be exempt from the purview of the act.

The prior committee recommended that the government investigate why the SPCA was assigned the dual status of a public body and a non-profit society and whether there was a case for clarifying or even changing its status. The prior committee urged the government to look into the matter. I've attached all of the background to these things.

We haven't been able to find any record of the requested investigation of the status of the BCSPCA or the requested clarification of the status of the BCSPCA. Certainly, there has been no change to the status of the SPCA or of the existing exclusion of the SPCA from the act.

Today we are making an appeal to your committee to take up the dropped baton from the prior committee and to strongly recommend to government that the BCSPCA may be subject to the Freedom of Information and Privacy Act.

The BCSPCA was incorporated and has continued as a corporation under its own statute, the Prevention of Cruelty to Animals Act. It is not governed by the Society Act or by any other regulatory act. It is essentially self-governing. The BCSPCA is both a registered charity and an administrative arm of government. The PCA Act grants to the SPCA broad, permissive statutory powers, which it exercises essentially free of oversight.

The BCSPCA is authorized to investigate complaints of animal cruelty, to enter and search properties, to seize custody of animals, to dispose of animals, and to charge the costs of their seizure and care to the owners of such animals. As early as 1994 there was public concern about granting police powers to the BCSPCA as a private entity and granting a provincewide monopoly on animal welfare to the BCSPCA. There were forebodings then about what could happen. It appears they have come to pass.

Agents of the BCSPCA are appointed as special provincial constables to carry out the statutory duties of the BCSPCA under the PCA Act. However, any complaints concerning the exercise of those statutory powers by those special provincial constables is referred back to the BCSPCA itself for investigation under the special provincial constables complaint procedure regulation. There is no simple or quick appeal to an administrative body or to an ombudsman of a decision of the BCSPCA to seize animals or to dispose of them.
[ Page 41 ]

The only possible way to contest such a decision of the BCSPCA is to issue a highly legalistic and complex petition in the Supreme Court of British Columbia under the Judicial Review Procedure Act. The petition must be issued within a few days of seizure in order to prevent the disposal by the BCSPCA of the animals seized. Most owners whose animals are seized are unaware of their rights and the legal fees and costs of issuing and proceeding with such a petition, which are considerable and usually well beyond the means of the average pet owner.

The BCSPCA collects considerable information from both anonymous and named informants about citizens over periods of many years and retains that information in its records indefinitely, as can be shown by perusal of the information attached to warrants issued at their request. There is presently no right of access to that information.

[1205]

A number of individuals, including those involved with animal welfare and advocacy groups and those who've had their animals seized, have been unable to obtain records as to the status of the animals in question.

Those who have complained to the Solicitor General, the minister in charge of the BCSPCA's police powers, have traditionally had their complaints referred back to the BCSPCA. Nothing more is ever heard or else the government has defended the SPCA's hundred-plus-year history. The inability of the public to really access all information needs to be corrected.

The BCSPCA is the largest and richest animal welfare agency in the province. Most of its approximately $24 million annual revenue comes from donations. A small amount of money is provided by the government for the brief training given to the special provincial constables, which are the agents of the BCSPCA. The amount of money which the BCSPCA charges owners of animals for seizure and care, and the amount it charges to ransom animals back to the owners, is presently hidden.

The BCSPCA is involved in both the investigative and decision-making roles, and as the Hon. Madam Justice Hyslop said in one of her decisions: "That requires that the application of common law rules of natural justice and procedural fairness be even greater than normal." Surely this dual role of the BCSPCA also requires openness and transparency, both of which are presently lacking.

The BCSPCA appears to regard all other animal rescue organizations in the province as competition for its own fundraising. Thus, there has been concern that the BCSPCA might have exercised or might be able to exercise its statutory powers against other animal rescue organizations for its own benefit rather than for the benefit of the animals.

The fact that the BCSPCA uses extensive publicity about its investigations and seizures to raise additional donations from the public creates another possible bias.

There's an example. The Ontario SPCA was brought to court, and the judge said: "It goes without saying that a strong and active enforcement of animal cruelty laws must be maintained, but I would be naive to suggest that the current setup could not foster the perception in reasonable, open-minded people that bias may exist and conflicts will result. However trite it may be, it is still true that justice not only must be done, it must be seen to be done."

In conclusion, as it presently stands, the information which the BCSPCA collects about citizens is not subject to freedom-of-information and privacy legislation. The numbers and results of investigations that the BCSPCA makes are not subject to freedom-of-information and privacy legislation.

The number of animals that the BCSPCA seizes and how it disposes of them — whether they've killed them, sold them, adopted them out, etc. — is not subject to freedom-of-information and privacy legislation. The amount of moneys the BCSPCA expends on its investigations and seizures and the amount of moneys it collects from owners and sales of animals is not subject to freedom-of-information and privacy legislation.

We submit that the affairs of the BCSPCA and its use of the unusual statutory powers that have been given to it must be made transparent and as open as possible. We ask you to make the BCSPCA subject to the Freedom of Information and Privacy Act.

R. Cantelon (Chair): Well, thank you much, Miss Liberson. You've made a very direct appeal to this committee. We appreciate that and its very specific issues. Now I'd like to entertain questions.

D. Horne: Thank you so much for your submission. One of the questions that I have, and obviously one of the things that this committee has to think very seriously about, is the ready dissemination of information that comes along.

When it comes to…. I have to admit I've seen it on many occasions. I've thumbed through it but haven't really looked at it in detail. I know the BCSPCA puts out an annual report, and I believe from thumbing through that report that many of the statistics that you quoted at the end of your submission were there, from what I recollect.

[1210]

I'm just wondering. Obviously, I understand your concern and the value of being able to get the information that, obviously, isn't readily available. But I'm wondering how much of the information that you're quoting there actually is readily available from the BCSPCA now.

D. Liberson: None. What you're referring to is the audited reports. Those came in…. Although they were required to give audited reports, they never did. From
[ Page 42 ]
what I understand, in 2004 that was brought up as another issue, and from that point forward they did do it.

My experience with reading those annual reports is that every year they changed the way they did the financials, and there was no segregation as to the cost of the investigative and what moneys are brought in as a result of that. That's important to know. We have no idea what it costs to operate an investigative procedure like they have provincewide.

D. Horne: I understand. I guess my point, my belief, is that by providing more information, by making information readily available…. Obviously, it takes it out of the purview of having to go through a freedom-of-information request and going through the system in order to get the information that, obviously, in many cases should be available.

I guess that was what I was asking — more about what is available right now. So they don't publish statistically the information of the number of animals that they keep and the number of animals they adopt and the number of animals they put down?

D. Liberson: That changes, from my experience reading different reports and different letters. It changes from one brochure to another.

They should be required to keep logs of the animals that they take in and how they dispose of them. There is no legislation to do that, and there is no information available on how to find that out. The only way you can find it out is if they happen to hold a pound contract with the municipality, and then through their freedom of information you can obtain those records.

They don't have all the pound contracts, and that's only a small percent of the animals that they handle. So yes, more that they are required to keep records of that should be available to the public.

E. Foster: Is the SPCA a society under the Society Act, or do they just use the term? Are they actually a true society?

D. Liberson: They were incorporated by specific legislation of the government, but they don't fall under the Society Act, in that they don't have to adhere to some of the same rules as the society that I might belong to, a private society.

E. Foster: By definition they're not a society.

D. Liberson: It’s both public and private…. It’s a society — the charity part. It is sort of a quasi-government body at the same time. It has both roles. So you can donate money to it, and then it can go out and order people to pay for the animals they've seized, and they collect money that way too. It's a dual thing.

The situation they're in is that they oversee all the other animal charities. For instance, like Ford overseeing Toyota and General Motors, they're the ones that can go into any other group and seize their animals. These might be legitimate societies as well. It's not clear. Yeah, it's a complicated thing.

J. Kwan: I'm just looking back at, I guess, the 2004 report, and I guess a presentation was made to the committee then. Just going back to the report, let me just put on the record what the report says.

It says the committee received a few requests to extend the scope of coverage to those entities no longer qualifying as public bodies under the act. It goes on to talk about a number of other things. Then it says:

"One case of exclusion, though, deserves special mention. The committee was asked to consider bringing the B.C. Society for the Prevention of Cruelty to Animals under the scope of the act due to the problems some individuals involved in the animal rights movement have experienced obtaining records of its activities.

"Upon further inquiry, we learned that the society has a unique status in terms of its organizational structure. The BCSPCA is a non-profit and mainly self-run society organized under the Prevention of Cruelty to Animals Act. This statute enables the society to provide animal welfare services through its administration centre, branches or shelters, or authorized agents."

It goes on to talk about how it's an anomaly with the SPCA — that on the one hand it "is a public body in terms of having statutory authority to deliver its animal welfare services," but on the other "its legal status as a non-profit society exempts its records from the purview of the act."

[1215]

The recommendation that followed was that it urged the committee to look into the matter. Recommendation 3: "Investigate why the B.C. Society for the Prevention of Cruelty to Animals was assigned the dual status of a public body and a non-profit society in the first place and whether there is a case for clarifying or even changing its status."

Do you agree with this recommendation? Sorry, it took long to put this on record because it's kind of complicated, and so I wanted to make sure that we got the information right. The nub of it, then, is that you have been asking for this recommendation to be implemented since the 2001 request.

D. Liberson: Yeah, 2004. Yes, exactly. Nothing has been done. So nothing's changed except that more and more people's animals are being seized, and they have no recourse to even find out what's happened to them. By the time they do learn the system, it's too late. The animals are killed or sold at auction or adopted to somebody else.

They have more powers, in a sense, than even our police, because at least with the police you can do an FOI. You can't do a freedom of information about the SPCA even if someone's gone in and…. The only way
[ Page 43 ]
you can ever learn about what is going on in the SPCA is if they choose to have the media come in on these seizures.

That's what happens. They'll bring the press in, or they go to court. Then, through the court system, there are certain things that you have access to. You can hear the trial. But if they don't go to trial, there's no way. They don't answer to anyone. There's no way to know whose animals have been seized, what's happened to them, or anything. It has actually, like I said, more power than the police.

R. Cantelon (Chair): Any further questions?

The references that Jenny Kwan mentioned are on page 11 of the report that we have, Enhancing the Province's Public Sector Access and Privacy Law, from the previous committee's recommendation, if you want to refer to it.

D. Liberson: I've actually included that in my thing. Not the whole whack, but I think part of what she read was…. It's included in my four pages, the first four pages, but it's more detailed in the thing that you have.

If you've ever…. I've attended some of these seizures and dealt with some of the problems after, and it's like living in another world — the powers that they have. We need them to be accountable. Perhaps some of the stuff that's going on wouldn't happen if there was a way to monitor them.

The PCA Act is under the Ministry of Agriculture, but the enforcement is under the Solicitor General, so you've got this dual kind of thing. Again, the special constables are with the Police Commission. What happens is if you go to….

I've been involved in doing an inquiry. You do a complaint against the BCSPCA, and usually it's referred back to them, and they investigate. But if it's serious enough, the commission will ask the SPCA to do a so-called independent study. But what they do is.... The SPCA hires their own investigators, who then present, and are paid by the SPCA to present, a report. Again, it's not really independent.

R. Cantelon (Chair): Well, thank you very much for bringing this issue back again to us.

D. Liberson: And we will continue to.

R. Cantelon (Chair): I'm sure you will, and I'm sure it will be the matter of some discussion during our deliberations. So thank you very much.

Our next presenter is Rob Botterell. I hope I've got the names right. Then following Mr. Botterell's presentation, we will take a recess for lunch.

Mr. Botterell, the floor is yours, sir.

[1220]

R. Botterell: Good afternoon, ladies and gentlemen. I'd like to begin by acknowledging the presence of Sharon Plater. Sharon is one of the numerous dedicated public servants who have administered this legislation over the past large number of years. They are a very dedicated, hard-working bunch.

I'll provide a copy of my presentation after the presentation, and I just want to also thank you for having the presentation this week. In a couple of weeks' time it would be quite a challenge to get to this location, I think, in the middle of the Olympics.

Thank you very much for an opportunity to make this presentation to the special committee. As one of the architects of the act, a lawyer who has presented and represented on information and privacy issues over the years and one who most recently had the privilege of drafting freedom-of-information and privacy legislation for the Nisga'a First Nation, I'd like to offer you my perspective on the important work of this committee.

It's a rare event in B.C. politics, and it's hard for me to believe that it happened 18 years ago, but in 1992 your NDP and Liberal predecessors, as Harry can attest, set aside their political differences and unanimously passed what was then the most open freedom-of-information legislation in Canada.

On that day your predecessors promised the citizens of B.C. that we would have the most open and accountable jurisdiction in Canada. This meant that access to information would be timely, because access delayed is access denied. Fees would no longer be a barrier to access. Exemptions to access would be narrow and specific. The amount of information you received would not depend on who you are or why you wanted the information.

There would be an independent commissioner, free from judicial and political interference, to ensure this happened. In short, there would be a new culture of openness within government. This promise of openness was made not only to the citizens of this province but also to those whom we rely on to hold government accountable — the media, opposition parties, non-governmental organizations and public-minded citizens.

On that day the Legislature entrusted this committee and previous ones like it with the responsibility of periodically reviewing the operation of the act and recommending changes to ensure the promise of openness was kept.

Provision was also made for the establishment of a consultative committee of stakeholders to advise the minister on the operation of the act. This committee was intended to supplement the advice received from public servants inside government. Unfortunately, this consultative committee has never been convened. So it's all up to you, and certainly from what I've read you're very well equipped for the task. You have a great diversity of backgrounds, a strong commitment to
[ Page 44 ]
public service and the wisdom that comes with years to do what is right, which is not always what is popular.

Let me now take you back to the early days of the legislation, canvass what has happened since the act was passed and outline the task that I believe faces you in the days and months ahead. My primary focus will be on the freedom-of-information aspects of the act. The privacy provisions for this act fortunately do not attract as much attention.

In the fall of 1991 the NDP had just been elected, at least in part on the basis of a promise to bring in the most open legislation in Canada. There was a great deal of fear about freedom of information. Public servants feared that they would have to operate in a fishbowl. Treasury Board feared that freedom of information would be prohibitively expensive. Cabinet members feared that the NDP government would lose control of its political agenda, and non-governmental organizations like FIPPA and the media feared the legislation would have too many loopholes and would be ignored.

[1225]

To address these fears, former Attorney General Colin Gabelmann and MLA Barry Jones, who was a long-time advocate for such legislation, opted for a very open, inclusive and transparent legislative process, both before and after the legislation was introduced. I had the privilege of working with former Attorney General Colin Gabelmann and MLA Barry Jones and led an extensive amount of consultation both inside and outside government.

All submissions were made publicly available. Lawyer Murray Rankin provided advice on the act. In one of the more creative, I think, and leading-edge events during that period of time, we even had a televised debate on freedom of information with some media organizations. And we looked to other jurisdictions, particularly Ontario, to find workable, predictable provisions.

We felt that full openness and transparency was critical to achieving a broad-based consensus on what the legislation should do — how much openness, how much privacy protection — and it worked.

In June 1992, after making 50 amendments, the B.C. Legislature passed the act unanimously. David Loukidelis — he was then president of FIPA — said: "With the new amendments, FIPA can state unequivocally that this is the most open, balanced and effective information rights legislation in Canada."

Later that year, after the NDP's first session concluded, the Vancouver Sun wrote — and in the bureaucracy at that time, we considered this a hole-in-one; this is called achieving a hole-in-one in the bureaucracy: "Its most outstanding achievement, which sharply increased its point average, was the passage of a freedom-of-information bill that was handled in exemplary fashion, with full opportunity for public input, resulting in what experts agree is the best legislation of its kind in Canada."

I'm not going to take much of the credit for that. There was a whole group of us that worked very hard to make that happen. But we did take some of the credit and celebrate.

Most importantly, the point I want to make is that the degree of openness in the act was no accident. It reflected a hard-won balance that everyone believed would be respected.

Now fast-forward to 2010. That promise of openness is under attack. It's been broken in numerous ways. Let me illustrate with some examples.

First, access to information is no longer timely. It's now more true than ever that access delayed is access denied in this fast-paced world we live in. Section 6 of the act places a positive duty on public servants to respond without delay — openly, accurately and completely.

This was intended to make it clear that the time limit under the act, such as the requirement to respond not later than 30 days after the request was received, was the outer limit — not the standard, but the outside limit. We even equipped the commissioner with order-making power to enforce that duty.

The government's response over the years has been to ignore that deadline and ultimately to amend the act to relax the deadlines and legalize delay. Through the stroke of a legislative pen, the 30-calendar-day response deadline morphed into a 30-working-day response deadline. I've got that reversed, but the net result was that it went from four weeks to six weeks.

The second thing that happened, what we found, was that access to information still depends on who you are and why you want the information. Former commissioner David Loukidelis found that response deadlines were missed over 20 percent of the time for individuals and businesses and a staggering 50 percent of the time for the media and opposition requests.

Now, to be fair, the government has promised to correct this problem, but my inquiries suggest that access to information requests are now delayed, and still delayed, using another tactic: huge fee estimates.

So the third problem is that fees are still a barrier to access, and that was something we intended to put an end to with the legislation. Let me give you a prime example: introduction of the HST. In August 2009 a media outlet requested background correspondence on the HST. The government required payment of an $800 fee to process the request.

[1230]

Now, five months later, the request for a fee waiver — and as you know, under the act you can ask for one — has ended up in the hands of the new interim commissioner, who is on a steep learning curve, and no information has been released.

In my mind, it's inconceivable that it would cost $800 to locate and process public records on a high-profile issue like the HST. This information should be at the
[ Page 45 ]
government's fingertips. We live in an era of Google and iPad, not filing cabinets and typewriters. I mean, this information must have been generated and stored on computers. So it's hard to conclude anything but that government records management is either in a shambles or the government has something to hide and it's doing everything it can do to delay responding to the request.

Either way, the government paid — or we paid through our taxes — to have this HST information prepared. Certainly, the intent of the legislation is that we'd have a right to know what it says.

A fourth problem is that the courts have turned policy advice into a black hole. Once the HST information is released, nobody should be surprised if most of it is blacked out. This is because, as documented six years ago now by former commissioner David Loukidelis in his 2004 submission and in FIPA's submissions — the submissions of the Freedom of Information and Privacy Association — the courts have broadened the section 12 cabinet confidence exemptions and the section 13 policy advice exemption.

What qualifies as advice has been broadened to the point where factual background material of many types is exempted from disclosure. Taking section 13 as an example, I want to assure this committee that we never intended the policy advice exemption to be so broad.

We modelled this section on the Ontario policy advice exemption. I was there, and when I briefed deputy ministers and others inside and outside government on the legislation, I advised them — based on our interpretation of the legislation, which was almost a carbon copy of the equivalent provision in Ontario — that for the purposes of the act, advice or recommendation refers to the submission of a suggested course of action which will ultimately be accepted or rejected by its recipient during a deliberative process. Advice must contain more than mere information.

Now, at the time my view was, and still is, that large portions of briefing notes or issue notes, including topic, background, discussion options and transmittal information, are accessible for the purposes of section 13, providing they do not enable the applicant to infer the final recommendation. My view was then, and still is, that briefing notes can and should be written in a manner to separate advice and recommendations from factual background material so that information can be released routinely.

If key information is still blacked out and the issue is a matter of significant public interest, the section 25 public interest override was intended to come into play. Unfortunately, this section has also been given an overly restrictive interpretation.

When government makes a major decision with major implications for the public, such as privatizing B.C. Rail with a 999-year lease or building fast cats with huge cost overruns, the legislators in 1992 intended the public to be able to access full information on a timely basis for those decisions, because to do otherwise converts a question of accountability into a research project for historians.

When arguing in favour of respecting the Legislature's 1992 promise of openness, I'm reminded of the words of noted British political philosopher John Plamenatz. "If there is to be responsible government, information should be so distributed amongst professionals and ordinary citizens so that competitors for power, influence and popular support are exposed to relevant and searching criticism." It's hard to provide relevant and searching criticism if you don't have the information in front of you that formed the basis for the decision.

[1235]

The fifth change that has really resulted in a departure from the original intent of the Legislature is the loss of judicial deference. I expected the courts to show the commissioner deference and to take into account our clear legislative intent to be the most open legislation in Canada. Clearly, I was wrong.

The time has now come, after hundreds of commissioner's orders and the buildup of specialized expertise within the commissioner's office, to give the commissioner greater protection from judicial review. This can be achieved by enacting a strong privative clause like the one under the Employment Standards Act. We have an exceptionally dedicated group of people that work in the commissioner's office. We have a large number of orders under the commissioner's belt.

This committee, and others like it, and all-party committees have been successful in attracting very qualified commissioners to perform that role. It's time to give the commissioner the deference he deserves.

I've only highlighted a few of the ways in which the openness promise has been broken. I urge you to also carefully consider past submissions and recommendations of former Information and Privacy Commissioner David Loukidelis. I have a lot of respect for David Loukidelis, and I think it's a tribute to his integrity and expertise that he's been appointed to the position of Deputy Attorney General.

I also urge you to give special weight to the submissions and recommendations of FIPA, the Freedom of Information and Privacy Association. It was David Loukidelis in his capacity as president of FIPA in 1992 who persuasively and successfully argued for numerous amendments to make the act stronger. Since that time Darrell Evans, who we're lucky enough to have with us today, has continued this tradition of constructive criticism when freedom of information or privacy protection appears at risk.

While none of us like to be criticized, I received my share of criticism from Darrell when I was working inside government. It's well-intentioned criticism. Darrell really deserves the Order of B.C. because he's
[ Page 46 ]
made a lifetime contribution to freedom of information and protection of privacy in this province.

Where does that leave us today? Well, when all is said and done, freedom of information has been converted into freedom from information in this province. It's not due to an unwillingness to make amendments. Changes to sections of the act since 1994 — 50. Number of amendments expanding openness — zero. Nor can the government claim that freedom of information is unaffordable. A dollar for every $4,000 of government spending is a small price to pay for a fundamental democratic right.

This is a non-partisan issue. I have to advise the committee that by the late '90s the NDP's commitment to freedom of information also waned, with funding cuts and response delays.

No, the real issue is that politicians of all stripes — and I've been one — really don't like being called to task or embarrassed. Nobody likes that. But I'm here to remind you that embarrassment is not an exemption under the legislation. I'm here to remind you that administrative convenience is not a legitimate reason to abandon a fundamental democratic right — the public's right to access to information.

I'm here to remind you that the debate about whether openness should take priority over secrecy and political calculus was resolved 18 years ago in 1992. Your predecessors promised the people of British Columbia the most open government in Canada. I believe it's your committee's important responsibility, as the guardians of that promise, to insist on amendments that will once again make this legislation the most open in Canada.

You know, it's not enough to make recommendations and move on to the next issue. There are a lot of recommendations from 2004 that have never been acted on — important recommendations made by the commissioner.

I believe your responsibility is to put the interests of the people of British Columbia — the people who elected you — first and press for the changes you recommend. I don't think the work stops with the completion of the report of this committee.

[1240]

What amendments and changes are needed? There's no single amendment that will address the concerns I've raised in this presentation. All of the following steps need to be taken: full implementation of the 2004 recommendations of Commissioner David Loukidelis; careful consideration of the recommendations you're receiving from FIPA this year; a statutory appropriation which guarantees sufficient, stable funding to enable the commissioner's office; and dedicated government freedom-of-information staff to fully comply with the act.

We can't have the budget of the commissioner's office and the FOI budget run by the same rules as other parts of government. There is provision in circumstances for statutory appropriations, and I strongly recommend that.

We need a strong privative clause, similar to the one under the Employment Standards Act, so that we don't have courts that write thousands of decisions a year struggling with information and privacy issues when we have a very experienced and capable commissioner's office. We need a section 25 public-interest override that can actually be used.

We need to implement the public record index. I don't know if you've been briefed on this, but in 1992 we set up a public record index, and we set out provision in the act for routine disclosure of information, and we need to do that. I recommend that we establish a consultative committee comprising major access and privacy stakeholders from outside government.

All provisions that have relaxed deadlines for response to information requests ought to be repealed.

Perhaps this will come as a surprise from me, but I recommend that you establish an affordable flat fee of, say, $25, with standard photocopy charges for more than 200 copies, for access to general information. We need to get away from fees becoming a barrier to access for general information.

I call on you to join me in urging the Premier and the Leader of the Opposition to set aside politics, as your predecessors did, and jointly make a renewed commitment, on their own behalf and on behalf of the parties, to uphold the promise of openness made by a unanimous Legislature in 1992.

I want to once again thank you for the opportunity to make a presentation to this committee, and I certainly look forward to reading your final committee report. As I usually say at this point in presentations, I'm happy to answer any easy questions, and Sharon Plater can answer any hard questions.

R. Cantelon (Chair): Thank you, Rob, and if I may just make one small comment, you mentioned the financing of committees. Of course, I'm sure you're aware that it is the function of the Finance Committee to recommend the expenditures to the statutory officers.

I well remember — because I was at that time Chair of the Standing Committee on Children and Youth — that the Finance Committee, after some discussion, changed the recommendation and significantly increased the funding to that officer. It's not strictly a function of the government. It's a bipartisan committee.

With that, questions?

J. Kwan: Thank you for that presentation. It's actually good to have that history revisited, for my benefit for sure and, I anticipate, for some of the newer members of the committee.

You raise a very good question on the issue around the fees, which was an item that I raised earlier. I put forward an FOI request myself and came back with a bill that said $10,300, to my shock. Then, of course,
[ Page 47 ]
from that bill, $8,910, I think precisely, was attributed to retrieving the records, which of course seemed to indicate that there are some appalling recordkeeping practices within the ministry — or else why such exorbitant costs?

Earlier I also stated that the request was to get documents and records and contracts related to the Ministry of Small Business in hosting guests for the Olympic Games and activities, and all the costs and expenses, etc., associated with it.

In any event, I'm wondering, given that this is a repeated theme, an issue that's come up in all sorts of different arenas, have you done any comparative analysis of B.C. relative to other jurisdictions in terms of our recordkeeping practices? Are there any specific recommendations on this that you could make, that B.C. could improve upon?

[1245]

There were some references to it earlier about that. I'm just wondering if you can shed further light on this aspect of it so as to facilitate future requests and to move us forward in this regard.

R. Botterell: Thank you. I guess I would approach answering your question in a different way, which is consistent with the recommendations and the research that I've brought forward today — which is that I think the best way to approach this is to create the necessary incentive for government to address records management and to, frankly, bring records management into the 21st century.

I think the way to do that is to have a flat fee for access to general information. I think that if there's a flat fee of $25 for access to general information, it will create an incentive for government to come to grips with upgraded records management wherever there are numerous requests.

Let's be realistic. I'm not suggesting everybody around this table isn't being realistic, but let's look at it this way. We're in the middle of a very difficult financial time, huge turmoil. I think it would be very important to focus the effort on improved records management where the requests are being received, and advisers like Sharon Plater will be able to help you identify where those areas are.

That's the long answer. The short answer is that I haven't researched the approach that other jurisdictions have taken in terms of upgrading their records management, so I can't really offer you a cost estimate for doing that. But I do know from personal experience that everything in our practice — I'm a lawyer by profession — is on a computer. We just switched to Mac, and I can find everything pretty darn quick.

R. Cantelon (Chair): Jenny, a follow-up?

J. Kwan: Yes. I guess it would be a follow-up, and it would be another list of those questions that I guess we should put to our own office as well, because if there's information on how to improve our recordkeeping system, it may go a long way in terms of addressing delays and access to information.

I also want to say, because I see that the people who presented earlier are still here, I would open up this question to all of them as well if they have further recommendations and suggestions beyond what they've submitted. That would be welcomed by the committee as well. I would ask people to do that so that we can take a comprehensive look here as to what's the best approach to addressing these, including the possibility of striking a subcommittee — let's say — an arm's-length subcommittee that would look at records management alone to see how we can improve the system for the future.

I just want to open this up for consideration by people and for suggestions so that the committee can deliberate at a later time when we have completed the public hearing sections of our work.

R. Cantelon (Chair): I think you raise a very good point, and I know that the Minister of Citizens' Services has communicated to the Chair that that's one of the issues they wish to present to you: streamlining management so they can respond better to inquiries. I look forward to their presentations.

D. Routley (Deputy Chair): Thank you, Mr. Botterell. You spoke of how the original legislation essentially set aside politics, and the second reading debate supports the kind of language that you use — that it would create a culture of openness. There was a lot of agreement and very lofty words and goals that haven't been realized, and you've pointed to the fact that it's actually been kind of turned on its head and has become a different kind of a culture.

I think that it parallels the whole notion of self-regulation. I had a friend tell me, or use the simile, that it's like writing yourself a speeding ticket. How many people would write themselves a speeding ticket? To which one of my other friends said: "I did it." He'd been pulled over in front of a police car on the side of the road that didn't have its radar out.

[1250]

But those kinds of lofty goals without regulation and without policies that support and ensure that when the rubber hits the road the principles don't evaporate. The principles represented by these kinds of goals often end in failure, unfortunately. I think we have run into that here.

One of the areas that you've pointed to is section 25, the public interest aspect of the legislation. Without some kind of guarantee or some kind of penalty, perhaps, or potential liability on the part of those people
[ Page 48 ]
who fail to notify in the public interest, there's a lot of incentive not to do that when notifying of public interest issues would be very costly or difficult or embarrassing, as you point out.

Have you considered the possibility of introducing liability issues — potential liabilities to be taken on if government or heads of bodies fail to notify in the public interest? Also, then, on the other side of that issue, would stronger whistle-blower legislation be required to support section 25?

R. Botterell: Thank you for that question. I think there's a variety of options to make section 25 work, but I think that the starting point is that the courts have interpreted section 25, on review of commissioner's decisions — and the commissioner himself has interpreted it — fairly restrictively, so it needs some reworking.

I don't know if FIPA has presented some options, but certainly, I expect you'll have some recommendations on how to deal with the language. The key word in section 25 is the word "clearly." Disclosure of the information on any particular issue must clearly be in the public interest.

At the time, 18 years ago, we thought that "clearly" would mean that there's a significant public interest. But the way it's been interpreted is "unmistakable." To use the court analogy, the standard is "beyond a reasonable doubt." Well, "beyond a reasonable doubt" is a pretty high standard.

I think we have to address the language and come up with a more reasonable level for it, but I'm not so convinced. I mean, ultimately, if we need enforcement provisions, that's good. The commissioner has order-making power. The commissioner has the ability to order compliance with the duty.

I think that the legislation as it stands now has many of the tools needed to breathe life into section 25 once we deal with some of the problems with the language of it and how it's been interpreted. That's why I've recommended a privative clause for the commissioner and also some work on the language of section 25. I would try that first. That could happen very quickly.

Certainly, if that doesn't create the culture of openness that we all hoped for, then maybe it is necessary to introduce some offences and penalties to back up that commitment. But I think the commissioner has the ability to cause things to happen if we get the language right.

R. Cantelon (Chair): Okay — carry on.

D. Routley (Deputy Chair): Another area that could perhaps have more teeth added to it might be section 6, on the duty to assist. If there's a failure in that duty, then have you considered the possibility of adding, perhaps, fines or some kind of penalty or incentive, at least, to comply?

R. Botterell: Absolutely. You know, I've known for a long time that driving with my cell phone on is a bad idea. In January I used it a lot less, and today, or yesterday, I stopped using it altogether because I didn't want to face a fine.

There is a place for penalties to cause a change in behaviour. I think that the way to approach it is to have those tools available to the commissioner so that you can give everybody a second chance, and then you have the tools in the act ready to go if that doesn't work.

[1255]

At the end of the day, I think that on items like the public interest override and the duty to respond without delay, 18 years of experience suggest we need something a little stronger than moral suasion.

R. Cantelon (Chair): Well, hearing no questions, let me thank you on behalf of the committee for all the work that you've done and informing us and informing previous committees. It's very valuable and very helpful information that can be used properly, I hope, in our deliberations. So thank you, Mr. Botterell.

Oh, I have one question here.

J. Kwan: I'm sorry, Mr. Chair. It just occurred to me, because we actually have somebody who helped draft the legislation, so it gives us a prime opportunity to ask questions about the time when it was drafted.

I'm curious. In the drafting of the legislation it does provide for provision for the fees to be waived under special consideration. At the time of drafting did people think about what those rationales might be? Because it's a mystery to me — when the fees are waived and when they're not waived, under what set of circumstances, etc. So I'm just wondering: in the original drafting of it, what was the concept behind that? Maybe you can give us some examples of why a fee should be waived, etc.

R. Botterell: Well, at the time when we drafted the legislation there were a number of areas that we really left in the hands of the commissioner. There's a provision in the legislation for waiver of fees — public interest waiver of fees. Ultimately, we left that to the commissioner to define "public interest."

We did that in a number of areas. Another area we did it — and I'll just be brief — was with discretionary exemptions. You know, there are all these discretionary exemptions — you "may" withhold the information. It sure looks like — I only had 20 minutes, so I didn't want to go on all day — over the years that "may" has become "must" in a lot of cases.

I think your committee and the government are in a perfect position now to introduce some criteria around the exercise of discretion. It's certainly open to this committee to identify and put in legislation some criteria around what you believe a public interest fee waiver
[ Page 49 ]
ought to involve. Certainly, at the time the discussion was: "Well, you know, if it's a matter of broad public interest" — and I've mentioned some examples; the HST is an example — "fees shouldn't come into play at all."

So I think the way I'd respond to your question is that I think you're well positioned now to look at establishing some criteria that you could import into legislation, and you could look at how the commissioner is approaching it and see if that's too strict in terms of getting fee waivers.

J. Kwan: Can I actually follow up with one other question? In that process, a bill sort of comes forward — right? Then there's the requirement of putting a deposit forward before work can be initiated. Once that work has begun, then you go and apply for a fee waiver, which, of course, is a huge risk for a lot of people — right? You don't know whether or not your request for a waiver would actually come through. In my instance, $10,000 is a lot of money, and to put in a deposit to the tune of that is clearly prohibitive and therefore not in the best public interest, I would argue actually.

Again, in the drafting of the legislation, then, what is the intent and thinking behind the requirement for the deposit?

R. Botterell: Well, there's a fair amount of work in terms of the initial getting organized to see how much work is going to be involved in handling the request. I've gone over this HST request. The problem is that we didn't actually think that fees would become such a big deterrent in terms of access. We thought it would be the exception rather than the rule.

[1300]

When this legislation was drafted, the former Attorney General Colin Gabelmann and I, Barry Jones…. We all coined a phrase, which was our hope, that this would be Maytag legislation — an avenue of last resort. Now it's an avenue of first resort, and I think that circumstances have changed.

That's why I'm recommending you consider a flat fee for access to general information. Let's eliminate this huge catacomb of trying to get a public interest waiver of fees and just deal with the underlying issue, which is efficient and effective records management.

R. Cantelon (Chair): Okay. We'll give deference to the Deputy Chair for a final comment.

D. Routley (Deputy Chair): Just to expand on those questions, Mr. Botterell, your indication that maybe a flat fee would encourage government to come to terms with more advanced recordkeeping and more efficient recordkeeping….

Have you considered, or did you consider at the time of drafting the legislation, that fees be waived when there's an underperformance on the part of the government or that deposits like the one that the other member, Jenny Kwan, spoke of would not be imposed until a certain level of performance is achieved or offered?

R. Botterell: Well, at the time we thought that fees would actually be a rarity. We thought that ministries, in the spirit of openness, would say: "We're just going to waive the fees. We're not going to turn this into a big…." So we didn't really cross that bridge. We talked about having a small application fee, and the federal government…. I think at the time, it was $5 or $10 — just something to, you know…. We didn't want…. We looked, and we said: "Well, that's not necessary. Let's just go with this approach."

At the time the legislation was drafted we didn't turn our minds to fees to the same extent that you are now, because we didn't actually expect that it would come up that often and that it would evolve into the process that it has evolved into. We certainly never anticipated that there'd be, you know, $800 fee estimates for some information on the HST.

So circumstances have changed. I think that the key thing — from my perspective, anyway, and something that I'd urge the committee to consider — is creating the type of incentive structure that will take fees from being a complicating factor and a huge, long process into something that causes information to get released.

R. Cantelon (Chair): Okay. Thank you very much. Again, let me reiterate my comments about…. We thank you for being involved and your continuing interest in this very important subject of democracy — core democracy. So thank you so much.

With that, we'll recess for an hour now. We'll come back at two o'clock.

The committee recessed from 1:03 p.m. to 2:01 p.m.

[R. Cantelon in the chair.]

R. Cantelon (Chair): We'll be joined shortly by the balance of our committee, but we have a fairly tight time schedule, so we'll begin, if we may.

Our next witness to present to us is Linda Meyer. Linda, if you'd like to come forward and introduce yourself to the committee and begin. We have 15 minutes allotted for your presentation.

L. Meyer: Good afternoon, Chair of the Special Committee to Review the Freedom of Information and Protection of Privacy Act, members of the committee, witnesses, members of the media — though I don't see any here — and the public.

My name is Linda Meyer. I am a pro bono legal advocate. I study constitutional law and human rights
[ Page 50 ]
law. Consequently, I frequently implement the flawed Freedom of Information and Protection of Privacy Act, which is why I am here today.

Supremacy of the constitution. Before delving into dismantling and deconstructing British Columbia's Freedom of Information and Protection of Privacy Act, I feel compelled to give this Special Committee to Review the Freedom of Information and Protection of Privacy Act a brief lesson in constitutional law.

Canada's constitution includes 46 constitutional documents — see appendix 1 — and is paramount via section 52 of the Constitution Act, 1982. The rule of law is part of the preamble of the Constitution Act, 1982, and is also supreme. The rule of law basically means that no one is above the law.

I am urging the committee, witnesses and others not to violate the prior laws when making recommendations to amend the Freedom of Information and Protection of Privacy Act. Finally, if an unconstitutional recommendation is implemented via an amendment to the Freedom of Information and Protection of Privacy Act, then the prior act is susceptible to a constitutional challenge.

Dismantling the following title: Freedom of Information and Protection of Privacy Act. I find it incredulous that the first, in my opinion, very noticeable flaw in the Freedom of Information and Protection of Privacy Act is its title. For example, the first part of the title reads: "Freedom of Information." The second part of the title reads: "Protection of Privacy." How can freedom and privacy equally coexist in the same title?

The initial component of the prior title probably leads the public to believe that they will be receiving information they requested, which I think is misleading because the second component of the name clashes with the first part of the name. Consequently, which right is supreme — the right to access public records or the right to privacy? Recommendation: rename the Freedom of Information and Protection of Privacy Act.

Silencing free speech. After having read the Freedom of Information and Protection of Privacy Act, I became deeply worried and concerned, because it seems like the scope of free speech is being incrementally silenced and/or censored by the very law that is supposed to protect it.

[1405]

For example, the prior law gives the public a right in one hand and then takes it away with the other hand. What kind of public access is that? Under this law public access is perhaps being undermined by privacy law. Is that just? Is that fair? For example, I just finished counting 21 refusals to disclose information to the public via heads of bodies in sections, subsections and sub-subsections of the Freedom of Information and Protection of Privacy Act.

If the committee is interested, I can refer the committee, after I have finished my presentation, to the 21 refusals to disclose information to the public contained in the Freedom of Information and Protection of Privacy Act.

Freedom of information and freedom of speech is also being incrementally silenced and/or censored by the heads of public bodies as they have too much discretionary power, in the Freedom of Information and Protection of Privacy Act, regarding whether to disclose information to the public or not.

Recommendation. In the Freedom of Information and Protection of Privacy Act, limit the discretionary power of heads of public bodies by way of using less subjective words and more specific words. I didn't find a specific word in this act.

Definitions. The definitions section in the Freedom of Information and Protection of Privacy Act is lacking because the following overused words and/or paramount words are undefined: "harm," "harmful," "reasonable," "reasonably" and "public interest."

I was shocked, because in the said act I counted how many times the words "harm" and "harmful" were implemented, and it was 23 times. Since the contested concept of harm is not defined, then either the types of harm, which are defined as sexual harm, physical harm, psychological harm, mental harm, economic harm, intellectual harm, social harm, self-harm…. What type of harm?

In addition, I counted how many times the words "reasonable" and "reasonably" were used, and they were used 22 times. The preceding words are undefined in the act. So I turned to the Interpretation Act, and the prior words were not defined in it either.

I know where the preceding words are defined. They are defined in legal thesauruses like mine, legal dictionaries like mine, case law and other legal sources. For the committee's information, I have provided, in appendix 2, legal definitions for the aforementioned words.

Even though the phrase "public interest" seems to be used sparingly, it was undefined in the act and in the Interpretation Act. However, the public phrase is, according to the Freedom of Information and Protection of Privacy Act, paramount by way of the following heading: "Division 4 — Public Interest Paramount."

How can public interest be paramount when it's not even defined? What is public interest? Public interest is defined in appendix 2 of this presentation. Even though public interest has been defined in the act, I find it is a malleable, subjective term, and that is susceptible to legal challenges.

After having the Freedom of Information and Protection of Privacy Act under a microscope, I noticed not all the words, terms, phrases invoked were defined in the definition section.

[1410]

For instance, the following concepts were not defined in the definition section, which is located in schedule 1 of the said act: information-sharing agreement, personal
[ Page 51 ]
information bank, privacy impact assessment, health body, health body care, health information-sharing agreement, official responsibility.

The previous concepts were not defined under the heading "Public information regarding health information banks." I do not appreciate having to hunt for definitions in an act.

Recommendation. Expand the definition section of the Freedom of Information and Protection of Privacy Act. Define words under the definition section of the Freedom of Information and Protection of Privacy Act. Do not define words and then strew them about the act. Strewing definitions around the act probably makes it more difficult to understand, which is probably what the intent was in the first place.

If a word in the act is being overused — like harm, harmful, reasonable, reasonably — please define it. By defining a word, I mean look up the same word in numerous different sources to see if the various sources concur. Consequently, if the various sources concur, then the definition of the word is proper.

The act — part 6, "General Provisions." Like I said before, I read the Information and Protection of Privacy Act, and I discovered numerous flaws in it. For example, under part 6, "General Provisions," it does not have a proper definition. Not having a proper definition section may confuse some people as they try to read the Freedom of Information and Protection of Privacy Act.

Now, this part absolutely shocked me, because whoever wrote this does not know how to write law. Section 73, part 6, "General Provisions," entitled "Protection of public…from legal suit" appears to be partly false, because the Charter of Rights and Freedoms, which is between the people and the government, overrules it. Moreover, if a public body is a Crown corporation, the Charter of Rights and Freedoms applies, thus action may proceed against the government and/or a Crown via section 24, enforcement of the Constitution Act.

Section 24 — "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such a remedy as the court considers appropriate and just in this circumstance."

So section 24 of the act needs amending or it is susceptible to constitutional challenges, and it will win because the constitution overrules the Freedom of Information and Protection of Privacy Act.

Recommendation. Remove the Freedom of Information and Protection of Privacy Act limitations that clearly violate the constitution. I understand in a free and democratic society — which I believe does not exist for women, because women live in a patriarchal world — limitations are the norm. However, what is not the norm is too many limitations, which is the Freedom of Information and Protection of Privacy Act. It has far too many limitations in it.

Conclusion. I am an idealist and a pro bono legal advocate. Since I'm an idealist, I doubt if any of my recommendations will be implemented. However, for everyone's concern, I sincerely hope my recommendation regarding definitions are implemented. Not to use my ideas regarding definitions is to put the Freedom of Information and Protection of Privacy Act in jeopardy.

In order for a law to be legal, it must be prescribed. As far as I'm concerned, the Freedom of Information and Protection of Privacy Act is not adequately nor properly written, because the definition section of the said act is insufficiently prescribed by law, which was already explained. Therefore, I suggest the minister responsible for the Freedom of Information and Protection of Privacy Act rewrite it, otherwise someone else will in a court of competent jurisdiction.

R. Cantelon (Chair): Thank you very much. Just for your information, Ms. Meyer, we are aware there is an audiocast of this. We've been made aware that several members of the press are watching the audiocast from wherever they are in the province. So it isn't being unnoticed. You should know that.

[1415]

L. Meyer: No. I just had to speak loud because I had to speak over those people who were rude.

R. Cantelon (Chair): Your 15 minutes are up, but do we hear any quick questions from any members?

Thank you again for coming and making your feelings known and expressing your opinions.

L. Meyer: May I ask one question?

R. Cantelon (Chair): You can ask a question, yes.

L. Meyer: With a raise of hands, how many of you are lawyers?

Okay. That's interesting. Thank you.

R. Cantelon (Chair): Our next presenter is Mr. George Kaufmann.

We have 15 minutes on the schedule, Mr. Kaufmann, for you. The floor is yours, sir. Please proceed.

G. Kaufmann: Members of the committee, thank you for meeting with me today, and I hope that this won't be too tedious for you.

You have a document in front of you, and I think we'll just go to page 18 at the back — my recommendations as such. We'll start with those first.

The language of section 13(1) should be strengthened to clarify the definition of "advice" to deny the efforts of institutions that hide information from people who have health issues directly affected by that information.
[ Page 52 ]

My second recommendation regards section 25. I believe this should be strictly enforced so that cases of negligence should have consequences for the offending institutions. I would ask that punitive measures be directed towards the governing officers of the offending institution as well as those employees who participate in this violation.

As a note, I would add that since September 2009 I have filed three complaints with the Office of the Information and Privacy Commissioner regarding the non-compliance of Simon Fraser University to my lawful request for public documents. To date, not one of these complaints has been dealt with. I humbly ask that provisions be made to provide adequate funding to the commission so that complaints to the commissioner can be addressed within a reasonable time frame.

Now, how do we get from there to here? We'll step back two years. In May 2007 I was a recovering cancer patient with lung cancer on my second round of chemotherapy. I had a valve in my chest, and I was very ill. I asked Simon Fraser University if they had housing for me. I was a graduate student with the faculty of education at the time.

Given their history, their public statements concerning their concerns for cancer, I thought these would be reasonable people to ask. Their response to my request was: "Yes, we do — Hamilton Hall, Suite 1013." I lived in this suite for four months and became even more ill. My first month into this place, 1013 Hamilton Hall, I ended my chemo treatments, thinking that I was dying, and spent the rest of the summer having a very difficult time.

In September they moved all of us out of Hamilton Hall. This is a graduate residence. Their statement to us was that the suites were being remodelled, and they asked us all to move to another residence. Essentially, on my way out the door, after all my goods were removed from the suite, with the help of two friends, we dragged this heavy wall-bed unit away from the southwest corner of the suite. Lo and behold, there was a huge black mould colony living there. It was obviously a drywall patch that was concealed by this bed unit.

I e-mailed the director of residence and housing and asked her to look into the matter. She told me that this was a food spill and was considered not toxic or dangerous. I was sent a memo of a lab report, which you will see if you care to follow along with us.

First of all, on page 4 is a picture I took the day I moved out of the suite, and this is the food spill that SFU insists was living under my bed. You can see the drywall patch on the side and the various colonies of moulds. On page 6 is the memo of the lab report I was sent by the environmental health and safety office at Simon Fraser University. I've had several people look at this, and it says basically nothing.

[1420]

So we'll go from there. I've complained to the director of residence and housing. They blew me off. Then I began to make freedom-of-information requests at the advice of some friends. I didn't know this act existed. What I found was that since 1998 to 2007, SFU residence and housing and environmental health and safety were well aware that Hamilton Hall was unfit for habitation. This is particularly true of suite 1013, which is prominently featured in both the 2005 and 2007 building and closure reports.

In fact, it's featured front and centre with photos, which I have included in the report here, particularly on page 8 and page 9. The photo on page 9 features my suite three months before I moved into it, and you can see my bed unit on the left there and the black mould which has inundated the structure of the building.

I think there's an important point to be made here. SFU knew about this. The 2007 report was released less than a week after I moved into the suite. I believe that under section 25 they had a duty to inform myself and the public that they were at risk for living in this building. To this date Simon Fraser University insists that this is a food spill.

We can flip ahead here. On page 11 are photos taken from the actual fungal report referred to from the residence and housing — not the report memo they sent me, but the actual report — on page 11 and 12. On page 12 there's an itemized list of the dangerous fungal spores living under my bed. In particular, the Stachybotrys, Aspergillus, Penicillium amerospores — these are well-known toxins. They're particularly dangerous to people who are suffering from immune deficiencies, such as those under chemotherapy. Essentially, I was being endangered here.

On page 13 there's a document, one of the few documents I received from SFU, and it is heavily redacted, as you can see. It is redacted at FOI exemption 13.1. Specifically, there are members of environmental health and safety, residence and housing and someone from financial services. They're asking what to do about me. This is dated several days after I'd moved out, and it's redacted.

I have yet to receive this document, even though I've filed a complaint and I've been notified by the office of the privacy commission in Victoria. They have the unredacted document, but they have yet to release it to me, so I have no idea what these people are talking about.

I complained to the ombud. The ombud at SFU repeated the same story. I'll make this very brief. In my last request for freedom of information from SFU, the response I got was…. I asked for records on the discussions on moulds and mildews at Hamilton Hall since 2007, which is when I moved in there. Their response is that no records exist and that "none of our searches located any records specifically related to mould or mould problems at Hamilton Hall." This is from the office of the vice-president, legal affairs.
[ Page 53 ]

Yet here we go. On page 16 this is Hamilton Hall. This place sat under a tarp for two years, and SFU asks us to believe that no records exist. My whole point here is that if SFU feared the act or felt that it had any teeth, they would have released these documents to me and the public two years ago.

Perhaps it's too late for me. I've had four cancers since 2005 and several issues I'm ongoing with right now. Perhaps it's too late for me, but I think for other students who have to live in these residences, it's important for institutions like Simon Fraser University to at least let their students know that they're being impacted by the conditions of their buildings.

I think that's all I'll say for now. You have the report in front of you, and I'm open for any questions.

R. Cantelon (Chair): Well, thank you. You made the comments…. Of course, we're not here, you appreciate, to pass comment on the affairs or adjudicate your requests, but really to respond to your comments about penalties. We take those to heart, and you provided a good context for that.

We have time for perhaps a brief question or two, if anyone has any.

D. Routley (Deputy Chair): Thank you, Mr. Kaufmann. Did you pursue this matter with relation to the Residential Tenancy Act?

[1425]

G. Kaufmann: Simon Fraser University doesn't fall under that act. It's up on the hill. They're running their own realm up there. So no, I haven't.

R. Cantelon (Chair): Thank you very much, Mr. Kaufmann, for your presentation and for bringing this matter to our attention.

G. Kaufmann: Thank you, sir.

R. Cantelon (Chair): And thank you for making those recommendations.

Our next scheduled one is not here. If Beatrice Patrick is here, we'd ask Beatrice to come forward.

B. Patrick: This is new to me. I'm glad that the hearing is taking place. I have written a very brief outline of two pages. I have seven pages of my vital statistics information that I would like to present at a later date. I couldn't afford a dollar-a-page copy here in the hotel, and I failed to be able to make a copy before I came of the seven pages that I have.

R. Cantelon (Chair): If I may just interject, please make them available to the Clerk, and we'd be happy to distribute them to all the committee members. If you can give a copy to us, we'll make sure that all committee members get copies at no cost to you.

B. Patrick: Great. Have you read or shall I read the two pages that I did give you?

R. Cantelon (Chair): Please do.

B. Patrick: Okay. I made an application for release of my personal vital statistics information held on my file in Victoria, British Columbia, since I moved to British Columbia in February 1968.

I was provided with a letter from the British Columbia Archives and records service in Victoria, British Columbia, when the agency advised that my vital statistics information was removed from its files in 1980. This followed from my applications filed under the Freedom of Information and Protection of Privacy Act when the act came into effect.

I was taken aback by the information I received in reply to my application under the Freedom of Information and Protection of Privacy Act and by the orders that were made in my case under the act by the Information and Privacy Commissioner in the years 1998 and 2000.

I believe that I have the civil right to apply for a formal judicial review hearing of my case, and I ask your consideration of my concerns mentioned.

I am a victim of medical-dental malpractice, and I applied for access to my medical and dental health records from the College of Dental Surgeons of British Columbia. I received documents through my request under the information and privacy act. I was horrified at what they disclosed.

I had filed a malpractice claim against two of three dentists that were responsible in causing my disability. This happened in 1977. I came out of dental anaesthetic, intravenous anaesthetic. I couldn't remember what I wanted to say in a sentence.

Time has healed the major effects, but I am still dealing with intermittent memory loss and recall where I need to double-check, triple-check everything that I do or everything that I say. I have an allergy to the products that they used in making replacement dentures.

[1430]

They performed surgery on my upper jaw that affected my vision, and as I say, the anaesthetic caused my memory loss.

I applied for a hearing in the court. I filed a claim. I received help from law students. What I need is a lawyer with experience in medical malpractice civil litigation. I don't need a law student to represent me. It needs an experienced lawyer. I've been dealing with this for 32 years. Now I'm in my senior years, where I'm also dealing with effects of aging.

I think I'll leave it at that. As I say, I have my vital statistics information that I wrote. There are seven pages.
[ Page 54 ]
I'm currently taking a computer course. I am totally computer-illiterate, and the Disability Resource Centre is currently helping me. Hopefully, my case will be heard in a court of law.

Mr. Loukidelis was the Information and Privacy Commissioner that dealt with my request for corrections to the information that I received under my application. He was the commissioner in the year 2000. I asked for an appeal hearing, and it wasn't granted. That's where I'm basically at right now. I need a hearing — a formal hearing.

I was hospitalized and labelled mentally ill, and I'm currently in fear of being rehospitalized. I've had an allergy since my childhood to most drugs and medications. So I need a formal hearing. That's all I can say. Thank you.

R. Cantelon (Chair): Thank you for coming, and thank you for being so open about telling us your personal concerns. I'm sure this committee is not unsympathetic or empathetic to your concerns. We have great sympathy for what you're telling us. We're constrained, however, because our committee is here to discuss in broader context how to change the legislation itself.

A suggestion was made to me by MLA Jenny Kwan that…. You've indicated that you need an advocate, and you're not alone among other people who've made personal presentations. Others have too. She has suggested, and I would pass on to you, that you consult your local MLA, who might well be able to advocate for you. I know all of our constituency offices work for people who have concerns confronting the government. They might well be able to finance and help you, point you in the right directions towards solutions.

Thank you very much for bringing your case forward for us.

All right. With your indulgence, we're going to move the agenda forward, because our next presenter is not here, but Mr. DeCosse is. He was scheduled to come at four, so we've allotted 15 minutes.

Mr. DeCosse, you're here, so please carry forth.

[1435]

D. DeCosse: Okay. Basically, I'm a mechanic, so I'm new at this. Just bear with me. If you fall asleep, that's okay. Anyway, what I did is I tried to cram a five-year FOI request into…. Well, I was told ten minutes, but thanks for the five. I'll take it. I'll just start off with what I've got here. I did a timeline thing.

Today I wish to present to this committee of elected representatives of the taxpayers of B.C. what to some taxpayers would appear to be problems which need to be addressed to return accountability of government to those who pay the bills — the B.C. taxpayer.

I made an FOI request August 23, 2004, and it was finally concluded on November 10, 2009. I've got lots of time.

A question of selective adherence to the FOI Act by a public-owned company should be addressed, I feel. Questions were presented to the FOI commissioner's office on the matter of selective adherence to the act and were allowed to go unanswered, which I don't understand.

Under the heading of part 4, "Office and Powers of Information and Privacy Commissioner," this committee should review the meaning of section 37(4), which reads: "Subject to section 38, the commissioner holds office for a term of six years." The return of section 34(4), which was repealed 2005-25-1 — whatever that is — "A person who is appointed under this section is not eligible to be reappointed as commissioner" — to keep fresh blood in the system.

Review and clarify the meaning of section 60(1)(a) and (c), which…. It appears that there is no one who occupies the position of Lieutenant-Governor-in-Council in B.C., according to the letters I've received from the Lieutenant-Governor's office. I'm still waiting for an answer to this one from my elected representative in Victoria, Mr. Dalton.

That's you. The cheque is in the mail? Right. Okay.

Let's see. Review division 2(16). It appears the amendment done in 2001-42-13 does not include investigating actions or a lack of action, which is what I would emphasize, of the FOI commissioner's office as these sections seem to imply to a layperson such as myself.

Repeal section 8(2)(a)(b). "The head of a public body may refuse in a response to confirm or deny the existence of…a record…." If I'm asking for a record, I already know it's there — right? This is a waste of time.

List of time and events which relate to the FOI requests. Some dates are not included as they were repeat requests or questions which went unanswered or to politicians who did not seem interested in possible FOI abuse.

August 23, 2004. My regular request for information, which is contained in TransLink's wholly owned subsidiary SkyTrain's records, was made. This request is for the amount of money paid out as buyouts or severance to SkyTrain management as per the act, section 22(4)(e), 25(1)(b), (2)(1). This same type of severance pay request had been made before over the years starting on February 2, 1998, and had been granted with reasonable time limits until August 23, 2004, by TransLink.

Note that all FOI requests to TransLink's wholly owned subsidiary SkyTrain have to go through TransLink's FOI department, and then TransLink will forward it to SkyTrain. This was the same procedure under B.C. Transit.

August 23, 2004. Sent request for severance information to TransLink's office.

August 30, 2004. TransLink acknowledges the receipt of this, giving it the number FOI-2004-081.

November 25, 2004. I send a letter of complaint to FOI commissioner's office seeking help to get TransLink to respond to this. Quite a bit of time there — right?
[ Page 55 ]

I've just highlighted this. You guys are getting the Reader's Digest version of this thing.

January 11, 2005. Mr. Harris at TransLink FOI office finally responds to my 2004-081. "Request denied on the grounds your request seeks information rather than records" — figure that one out — "and given that it cannot be created from a machine-readable record, that does not constitute requests for records within the meaning of the act." I don't think that includes computers. I don't know.

[1440]

No. 2. "Pursuant to section 8(2)(b)" — this is why I'd get rid of that one — "we refuse to confirm or deny the existence of severance arrangements with respect to any of the individuals your information request named. Pursuant to section 22(1) of the act, we would be required to refuse access to such request information if it exists as its release would constitute an unreasonable invasion of the third parties' personal privacy which has not occurred in section 22(4)(e) because the named individuals are not and were not employees of a public body."

Funny. Under B.C. Transit they were public employees, and I understand TransLink's wholly owned subsidiary SkyTrain is still funded and owned by the taxpayer.

February 27, FOI 2004-081. As per Miss Zang's instructions, I sent a new complaint FOIPPA form to TransLink.

April 19. Mr. Harris repeats Miss Zang's response that this matter is closed, still claiming named individuals are not employees of a public body.

April 25, 2005. I make routine request for SkyTrain management wages. I do this every year because I like to know how much they make compared to what I make.

May 3, 2005. TransLink confirms receiving my wage request 2005-01.

May 16. Received TransLink's denial-of-information form. "You are seeking personal information about SkyTrain employees. It is not information about employees of a public body, as per meaning of section 22(4)(e) of the act."

May 31, 2005. TransLink responds to FOI complaint. Mr. Harris writes: "Determination in this instance was made based on legal advice I received in relation to this request."

July 27, 2005. I am notified by FOI office that Michael Skinner will be the portfolio officer.

July 29, 2005. Response from Michael Skinner, portfolio officer, stating:

"SkyTrain is not a public company. Therefore, there is no complaint. TransLink has no authority to release information generated and held by Coast Mountain Co. or SkyTrain. You argue that such information has been released in the past, and if that is the case, then TransLink has been in error. It is not unheard of for a public body in the spirit of openness" — that made me laugh — "to make certain information available only to find out later, usually by obtaining legal advice, that they are actually under no legal duty to disclose and in law have no authority to make such disclosures. Your complaint with this office will now be closed."

August 12, 2005. E-mail I received stating that I write my questions to Ms. Mary Carlson, FOI director.

August 16, 2005. Mr. Skinner now assigned his portfolio offer for my wage request. Mr. Skinner closes both my FOI requests the same…. "SkyTrain is not a public body under the act. Now closes FOI 2005-038."

October 24. E-mail to Ms. Carlson to see if she can send response to my August 23, 2005, questions I sent. At this point the FOI commissioner office and TransLink claim SkyTrain is not accountable to the FOI Act. The FOI office has closed my request for review. This is where the story gets interesting.

November 7, 2005. TransLink accepts an FOI request, which is FOI 2005-093. TransLink FOI office then directed it to their wholly owned subsidiary SkyTrain, who we are told is not accountable to the act and in law has no authority to make such disclosures as per the office.

November 9, 2005. TransLink notified the requester that he was sent confirmation of the request received.

November 22, 2005.

R. Cantelon (Chair): Mr. DeCosse, I wonder if I could interrupt you for a moment. We do have a written presentation that you have of this. We have all the facts.

D. DeCosse: What I'm basically getting at here — and this is the part that I like — is that SkyTrain and TransLink and the FOI commissioner's office both…. Everybody agrees that I don't get this information because it's personal information.

[1445]

Ever since the Freedom of Information Act started, I have been acquiring management's wages. I've always been interested in the people that went out the door, because most of the time in that place you know why they went out the door. It's just to see how much money is made. I also, when we have projects that, let's say, are not successful….

R. Cantelon (Chair): If I may also interject, we're not here to review the operations of the commissioner.

D. DeCosse: No, but what I'm trying to get across here is the fact that there are flaws in this thing. The fact is that….

Why is it SkyTrain is still answering FOI requests when they say that they're not? The FOI commissioner's office says that it's not accountable to the act. They actually go through a whole song-and-dance routine up until April 6 of 2006 where Mr. de Jong, minister order…adds TransLink's wholly owned subsidiaries to section 2 of the FOI Act. Why did they bother? SkyTrain was still answering, through TransLink, other people's FOI requests. So is this not a waste of taxpayers' money?

I have incidents all through this of where….
[ Page 56 ]

R. Cantelon (Chair): So we need to know what recommendations you would change to do the act, since we're not here….

D. DeCosse: What would I change to the act?

R. Cantelon (Chair): We're not an appeal board to review cases.

D. DeCosse: No, no. I realize that. But like I said at the beginning, I'm just a mechanic, and after five years of trying to fight these people to get this information….

R. Cantelon (Chair): Right.

D. DeCosse: I am not a lawyer. I cannot afford lawyers, where they use my tax dollars to hire lawyers. What I'm trying to get across here is that this thing needs to be seriously looked at. When there are cases like this…. I even sent letters to David Loukidelis asking why my requests were being ignored and stuff. I didn't get an answer. This is the man that is in charge of this whole song-and-dance routine.

So you guys have got to be able to put it out there and say: "Lookit. This is an act that's for the benefit of the people of this province, and these people deserve answers." Putting somebody off for five years while they were still answering other requests? That's nuts — okay?

R. Cantelon (Chair): Fine. Well, I take your point. Again, I say that we're not here to review the operations of the office per se.

D. DeCosse: What I did is I've supplied him with some discs, and it has over 200-some documents that back up everything that's on this piece of paper — right? I know you guys won't go through it all. I figured, after five years of fighting with TransLink and the FOI commissioner's office, that as a taxpayer, I'm not getting any answers, but at least I'd have my ten minutes of revenge.

R. Cantelon (Chair): Well, you did have your 15, and I did let you go quite long, but I could see it was going to carry on, on the same vein. I wanted to make sure that you had the opportunity to make specific comments before you ran out of time. That was my concern.

D. DeCosse: Okay. Well, thank you very much for your time.

R. Cantelon (Chair): Your submission will be tabled.

D. DeCosse: And I will be getting a letter?

R. Cantelon (Chair): Well, I leave you to follow that up with your MLA, as we've recommended.

Interjection.

D. DeCosse: Yeah, let's do lunch sometime.

R. Cantelon (Chair): Thank you very much, Mr. DeCosse.

We're a little ahead of schedule. We're going to take a recess until three o'clock. Thank you.

The committee recessed from 2:48 p.m. to 3:07 p.m.

[R. Cantelon in the chair.]

R. Cantelon (Chair): Welcome back, ladies and gentlemen. I call the committee back to order.

We've had a couple of cancellations, and we are open to spontaneous comments from people in the public. That's why we do these hearings. Mr. Rodney Philippson has a comment he's anxious to make quite quickly, I understand, regarding the scope of the Privacy Commissioner.

Rodney, the floor is yours.

R. Philippson: As you heard, my name is Rodney Philippson. I'm from Sardis, but I do have a summer residence on Galiano Island. Many of you might know my neighbour Christy Clark and her brother Bruce. I do see a few smiles there.

About a year and a half ago I had a bunch of drunk people come onto my front yard to have a party. They were 14 or 15 years old — stoned on drugs and alcohol. It ended up to be a sex and nudity party. I phoned the RCMP. I was fearful for my life. I had to go over to a neighbour, Harry Laquette. We phoned, and the police didn't even respond. It was a 911 call. I was fearful for my life due to the activity. I'm now 71½.

I tried to get a police report. Now, I'm going to get to the freedom of information. It was terrible to get a police report. I finally got one a year later. Then it went through a situation. I turned it over to the RCMP complaints commission. As a citizen of British Columbia I found that they were worse than useless — the RCMP complaints commission.

They should have focused on the 911 call. They should have focused on the drug situation that I had on my property, and breaking into my fence. They seemed to focus on how I was the problem — that I owned property and that I was in a residence that night. I was the problem, no one else.

After I got the final report in early December, it didn't even relate to the problems. Then I put in for a freedom of information to see what the fire chief and the RCMP had submitted on December 15, because they had to release any letters written by the RCMP. It is all protected.

[1510]
[ Page 57 ]

On January 15 they said: "Oh no, the RCMP haven't responded. We've got to give them 30 days' notice." Now, the question is with freedom of information here. How long do they need to take to release two or three letters? They're abusing us. I would say that if they didn't respond in 30 days, then they would lose that privilege, but they don't work that way.

If I do something that the RCMP wants, they want it done now, not at their convenience. This is really why I'm making this brief report. They shouldn't have any more privileges than the rest of us. Do any of you people have any questions on this?

R. Cantelon (Chair): Any questions?

We thank you for bringing this matter to our attention. All matters, even though they're not direct, are of interest to this committee. We deal with those that we can deal with, with respect to legislation, but all comments are welcome.

R. Sultan: Rodney, can you just clarify so that I understand clearly: how long did it take them to respond? How many months?

R. Philippson: Well, I might put some smiles on your faces when I tell you this. The RCMP, to actual proof, did not respond, but I was over there…. This was June 29. I was over there last year….

R. Sultan: June in what year?

R. Philippson: June of 2008. I left after Thanksgiving day, about the 15th, and I returned on October 20. The gate has chains on it — I don't want people down there — but the front is open from the beach.

Someone had come in, and they jumped up in one area — to look in the window, I imagine — and came crashing right into the septic tank, probably down about four or five feet in the septic tank. I've a suspicion that the RCMP constable came down to sort of look it over after he was obliged to make a report.

Does that answer any questions?

R. Cantelon (Chair): Well, it does.

R. Philippson: I can't prove that. That's the only person who would come down.

R. Cantelon (Chair): Perhaps it was justice served in the end, Mr. Philippson. We don't know. But in any case, we….

D. Routley (Deputy Chair): Not very poetic, but….

R. Cantelon (Chair): Poetic. Well, something more than poetic, vice-Chair.

Thank you very much, Mr. Philippson, for bringing that to our attention.

R. Philippson: Well, thank you for your time on this. That's a point — that I think the RCMP should have the same privileges and that if they're going to respond, they do it in a reasonable time.

R. Cantelon (Chair): A point taken and well made. Thank you, sir.

Now we'll have a presentation from the Confederation of University Faculty Associations of British Columbia. We have Dr. Paul Bowles, president, and Rob Clift, executive director. They have a presentation to make, I understand, of about ten minutes. We'll allow a further ten minutes for questions.

You seem to be alone here, Rob.

R. Clift: I am alone. I bring regrets from Dr. Bowles, who lives in Prince George. Unfortunately, we can't always get him down to the coast for events. He sends his regrets today.

R. Cantelon (Chair): I'm sure you're more than adequate to carry on, sir, and please do.

R. Clift: We appreciate the opportunity to make a presentation to you in person today. Our organization, the Confederation of University Faculty Associations of B.C., represents professors, professional librarians, lecturers, instructors and other academic staff at the province's five public doctoral universities.

Information is the lifeblood of the academic enterprise, and so it comes as no surprise to you that our organization has a keen interest in the work of this committee. We were involved, consulted, in the creation of the Freedom of Information and Protection of Privacy Act and have made numerous interventions over the intervening years to try to improve its provisions.

We are presently canvassing our members for their suggestions for improvements to the legislation, which we will include in our final written submission to you. In advance of that submission, we have five points we'd like to discuss with you today — both just to expose you to the issue and to see if there are clarifying questions that you have at this point, which we can address further in our written submission that will come in later this month.

Point 1 is that we wish to reaffirm our support for the exemption of examination and test questions and teaching materials and research information, which are in sections 3(1)(d) and 3(1)(e) of the act.

We're not aware of any proposals coming forward to this committee that would seek to change the exemptions. However, given the importance of these exemptions to academic faculty members, we think it important to
[ Page 58 ]
reiterate our support for them and ask that should there be any propositions coming forward to change these provisions, you would give us any opportunity to provide you our expert input and advice on that.

[1515]

The second point is to reaffirm our support for the exemptions of personal recommendations, evaluations and references, which is section 22(3)(g). Again, we're not aware of any proposals before you to seek to change this exemption, but we want to flag this also as a provision that's of vital importance to the academic community.

Recommendations, evaluations and references are used in the selection of students for admission to our institutions, in the selection of scholarship recipients, in the evaluation of academic work, in the hiring and promotion process for professors and the like. If recommendations, evaluations and references were to become subject to disclosure, to say the least, it would be extremely difficult to get accurate evaluations of students, professors and academic work.

As I said, once again, we're not aware that this has come forward to you, but we want to flag this as something of importance to us that we would wish to be consulted on if you were considering any changes.

Item 3 is that we wish to reiterate the request we made in 2007-2008 to the applicable ministers for amendments to section 35(1)(a.1), which is the section dealing with research and the disclosure of personal information for research purposes. We'd like to see an amendment to that section in order to allow researchers to use personal information found in the course of approved research to contact a person to participate in that research or related research.

At present if there's a research contract in place that has access to personal information from a public body, and in the course of that research the researcher finds something that may be important to that particular research project or related research project, the researcher is prohibited from trying to contact that individual. In most cases they won't have that individual's personal contact information in any event because it will have been anonymized in some fashion.

There's no allowance for that to happen unless that research is health-related, and that's taken care of under section 35(2). There was an amendment made in, I believe, May 2008 under Bill 24 to allow that type of contact for health-related research providing the commissioner agrees. There are a number of criteria under there for the commissioner offering his or her permission to do so.

By creating this change in 2008 with respect to health-related research, obviously the government felt that health-related research was of sufficient public import that the act should be amended to allow this to happen. In fact, we were involved in discussions in early 2008 with the applicable ministries about this, along with Population Data B.C., which deals with large-scale health research projects in the province.

We think that rather than disallowing any other type of research just from being in the game, other than health-related research, other researchers ought to have the opportunity to make the case to the commissioner for allowing this type of contact.

I can't speculate as to what that might be at this point. Certainly, there's lots of precedent with respect to archival and historical research, but there may be other types of larger-scale research conducted that would not be health-related, which would benefit from this provision. I don't think we're going to see a lot of it in a given year, but we think…. What we'd like is to have the opportunity for researchers to make that case to the commissioner for that exemption to allow this second-order contact of individuals arising from a research contract.

We believe the most expeditious way to enable that would be to amend section 35(2) by striking the phrase "in respect of research in relation to health issues…." That would then give the commissioner the authority to allow this type of contact when he or she deems it responsible and appropriate as per the other criteria under that section.

The fourth item we wish to address at this time is that we propose the creation of a new provision under section 75, which is fees, to require that fees be waived for researchers at public post-secondary institutions where their research project has been deemed legitimate through approval from the researcher's institutional research ethics board.

In our experience, many academic research opportunities are lost, particularly with respect to public policy matters, from the excessive costs attached to many freedom-of-information requests. Requiring fee waivers for legitimate researchers from public post-secondary institutions will create new research opportunities and may result in practical applications for more efficient and effective government services.

[1520]

Again, it's not possible for me to say at this point what those types of requests might be. Certainly, I think that bypassing the first hurdle, which would be getting the approval of institutional research ethics boards, would demonstrate that this is legitimate research. This is not a frivolous request being made or a fishing expedition; this is a legitimate research request. Moreover, there is still the opportunity for the commissioner to exercise authority in such a case that if a public body felt that a researcher was abusing that privilege, the commissioner could make interventions.

The fifth point we'd like to bring to your attention today is to propose the creation of a new provision — I'm not entirely certain where it would exist
[ Page 59 ]
yet in the legislation; I'm still thinking over that — to clarify that the records of a faculty member at a public post-secondary institution are not in the custody or under the control of the institution except in specific circumstances.

This has not been a problem to date in B.C. as far as I know. No examples have been brought to my attention, but we have seen a situation arise at the University of Ottawa in '08 that led to a lengthy arbitration extending into 2009, where there was a claim, in response to a request for information under the Ontario legislation, from the administration of the institution.

They say "request." The wording of the letter that I saw suggested they "required" faculty members to produce a wide range of records in order for the institution to search those records to determine whether or not they were responsive to the freedom-of-information request.

This, as I said, led to a lengthy arbitration where at the end of the day the arbitrator determined that, with some specific exceptions, the records of faculty members are not under the custody or control of the university in that instance.

This speaks to the unique role that faculty members have in our society. Although they are employed by the public universities, they are not employees in the sense that their academic work is work for hire, as we might understand in a copyright legislation.

That is, a faculty member's academic work certainly contributes to the prestige of the institution and the reputation of that institution. But if that faculty member decides to leave to go to another institution or take up another opportunity to use his or her expertise, they do not simply pick up their coffee cup and their personal effects and walk out the door like an office worker. Indeed, there are many file cabinets full of records, personal correspondence and academic correspondence that go with that faculty member. There's really no expectation that that would not happen.

I've never heard of an instance where a faculty member has been denied the ability to move his or her records if they move their job. In that respect, until this case at the University of Ottawa, it had never really been at issue elsewhere in Canada, but the Ottawa case has now brought it to our attention. We think there needs to be a specific provision to that effect.

In general, the exemptions for teaching and research materials under section 3(1)(e) will cover a great deal of those records. But as we found in the University of Ottawa case, there are other records that, for whatever reason, the public body felt would be captured and would not be included in that exemption — the equivalent exemption in Ontario — and would be subject to disclosure. Part of that also has to do with e-mail, of course — which is both the boon and bane of our existence in so many ways — and how e-mail records should be handled.

We will bring forward, in the written presentation to you, specific wording, a specific section for dealing with that. It's not immediately apparent where we would put that in.

To date, in looking over decisions from the commissioner's office, it appears that for the most part the commissioner has generally gone down this road. There haven't been decisions with respect to universities in particular, but they had to do with material that kind of exists in a grey zone between work records and personal records.

I think in one case — I'm not going to remember the citation on the case — there was a retired school principal who had a personal diary in which he made notes about things that happened on the job, and there had been a request for the release of that information. It was determined that that was in fact a personal record of the principal and not subject to release. So there is some jurisprudence, as it were, on this out of the commissioner's office. We're going to examine that a bit further in the written submission to you so that we are crystal-clear on that.

Those are our five points. If you have any questions or comments, I'd be very happy to take them.

R. Cantelon (Chair): Thank you very much, Mr. Clift.

Questions?

E. Foster: In one of your earlier points — I think maybe the first or the second — you talked about information about the students and the faculty, and you were concerned that there would be some changes. Would you not say that is all covered under the privacy portion of the act now?

[1525]

R. Clift: It's not clear. Originally I thought this was covered because, in general, the advice we had been given by the commissioner's office and certainly freedom-of-information — FOIPOP — personnel at our universities over the years had been that if I write a recommendation about you, that is both personal information about you and personal information that belongs to me because it's my view of you. In that respect, the fact that it's my personal information would trump your ability to request that information.

However, there was something recently…. Again, I'm sorry that I'm not going to remember the citation. It may not have been recently, but there was something I read on the commissioner's site recently which suggested that that may not always be the case. I'll explore that in more detail in the written submission.

There's a grey area that's been created there where in the past we thought it was crystal-clear, and that's why we flagged it as an issue. Again, I don't think anyone is
[ Page 60 ]
bringing anything forward, but it is something that we should be mindful of.

D. Routley (Deputy Chair): Going back to a previous presenter — and you may not have been here at the time, Mr. Clift…. One of the original drafters of the legislation, Rob Botterell, spoke to us about the fact when the legislation was originally conceived, the notion and one of the intentions was that fees would never be an obstacle to the access of information for anyone in British Columbia.

I wonder about the notion of legitimate research versus the research that, say, a political organization does or a non-profit or an environmental organization. Would you not agree that addressing the issue of fees overall would be more appropriate than trying to identify what is legitimate research and what is something else?

R. Clift: Sorry. I was using the term "legitimate research" in a more confined context than you're probably interpreting it. I meant in terms of a well-defined research project that's gone through the stages of review at the university and not an off-the-cuff request that would generate a lot of cost to the public body. It wasn't that I was distinguishing that type of research from other groups — that their research might be illegitimate. I'm not suggesting that in the least. I was just trying to be very clear that this is something that would be well defined within the university community.

But yes, in general, and certainly in the presentations we've made to previous reviews and to previous ministers on this, there continues to be a problem with access for everybody — for example, our own organization, whose research is more of the type that you suggest.

We in fact have run into our own problems with that over the years in getting information that was necessary for a change of public policy. At the end of the day, we got the fees waived, but only because it took a year for a response to our request. There was embarrassment about that, and so the fees were waived. At the end of the day, the policy was changed. It was agreed that what we were proposing was a good thing. Those opportunities are lost not only in the academic realm but also in the public realm.

In the presentation we made, I believe in the 1998 review, we made the comment that I think was lost at time and perhaps needs to be reiterated now. What we need to be working towards is not so much on applications for disclosure but just disclosing things in the first place.

That's the problem. We still haven't really embraced the culture that information should be freely available to everybody unless there's a specific reason to keep it out. Still routinely, we think that whoever has the information…. It's something they should hold onto and not let go. I think we see this in a number of the decisions from the commissioner where it's clear that people are just unreasonably holding onto information when it should be freely available already.

Yes, in general, but I think that even beyond the fees issue, we still haven't really made progress towards a culture of openness in our public bodies that we should have.

D. Routley (Deputy Chair): That answer mirrors how the discussion occurred earlier, and it also echoes the second reading debate when the bill was introduced — that it would create this culture of openness, which really it has failed to do, failed to achieve.

Mr. Botterell also implied that waiving of fees or the routine disclosure of information would encourage government to become more efficient in recordkeeping and more efficient in producing records to the public.

[1530]

I think that in sort of a more popular or populist approach, the routine disclosure of information and the elimination of fees as an obstacle generally would satisfy your purpose, as well as those other purposes of creating that open governance culture. Do you agree with that?

R. Clift: It would probably satisfy initial stages of a lot of research. Some research is going to be so in-depth that there are going to be significant resources attached to it. Ideally, there's external funding available to assist the public body in getting that information, mining that information.

Certainly, I think our colleagues in the U.S., in many states, have done considerably better in this respect to the point that I had a colleague from Alaska who advised me that any meeting of three or more government officials has to be noted publicly. There has to be a public notice of it, and any citizen can walk in and participate in that meeting — or at least sit in on the meeting, not participate. I don't know that I would go quite that far, but it is an interesting approach.

J. Kwan: Just to build on that, I agree with Doug in terms of access to freedom-of-information records in terms of removing the financial barrier to make it accessible for anybody — right? — whether you are doing research or otherwise, in the technical sense of "research" in the context of university and colleges. But just set that aside for a moment.

Am I understanding correctly, though, that part of that request for the research in your context is ongoing research documentation? Let's say if someone is doing a research study that's going to span five years, then the period in which access to the information would span five years for that period of time…. Therefore, it's ongoing for prolonged periods, so potentially, costs could be an issue in terms of recordkeeping. Am I understanding that correctly?
[ Page 61 ]

In addition to that, I'm wondering: other jurisdictions — do they have provisions within their act that would deal specifically with the kinds of research that we're talking about in your context?

R. Clift: I don't believe we're talking…. Again, there are many researchers out there who would take many different approaches on this, and I'm not going to say that nobody would go down this road. But usually research projects are of a defined scope, and they're looking for a defined bit of data or information that is pulled once.

I mean, the researcher himself or herself may spend several years analyzing that data. But as far as what the cost to government is, it tends to be one go, possibly with a follow-up if there's something missed in the initial go — or something that's overlooked.

With respect to how it's dealt with in other jurisdictions, I'm not aware of this being the case. This is something I continue to look into, but off the top of my head, I'm not aware of other jurisdictions having gone down this road.

J. Kwan: Okay. Thanks.

R. Cantelon (Chair): I don't see any more questions, unless I'm missing hands. Mr. Clift, thank you very, very much for your presentation. You've been very informative, and we'll certainly be looking forward to reviewing your recommendations in the context of our discussions.

Our next presentation will be the Friends of the Chilliwack River Valley, and I think we have Glen Thompson, Zvonko Bezjak and Wendy Bales. I didn't do very well on one of the names. I apologize.

G. Thompson: No worries. Everyone has a problem with Zvonko's name.

Thank you for letting us testify at this hearing. We feel it's very important, and we feel very privileged to live in a place where we have such acts. They're very important to us.

I'm from a group called Friends of the Chilliwack River Valley. We're a very small non-profit group. We live in a rural area — even coming here is a bit of a burden for us — and we're challenged with many things in our area.

The Chilliwack River Valley. The entire watershed has recently been proposed to have it put into a single FDU. While that proposal is in place…. This encompasses a very large geographical square area. While that's up for approval, the public has one chance to find out all the information about every issue in this valley and provide it to the forest district manager. To do that we have to do a lot of research. We need a lot of information.

Once that area is put into the FDU, we have no more public input — at least not legally. That puts a huge burden on us to find this information. We don't feel it's fair that the public should be responsible for collecting this, because what we have in our valley is of interest not just to us but to the entire province.

[1535]

For instance, we have up to a dozen endangered species that live there. We have areas that are at risk for landslides and mudslides, which are directly underneath places that could be logged. We are responsible for becoming geotechnical experts, wildlife experts, etc., to provide public input.

The licensee, who is the proponent, has had six months to give us information, as has the forest district. We've had at least 30 to 40 information requests from them. They've not answered our questions to our satisfaction. We need more information. A lot of it points back to the Ministry of Environment.

We've slowly become experts in a lot of these areas, actually. It's kind of funny. We're actually coaching them in a lot of areas, which is a different thing for us to be doing, because they're not experts at these things either. A lot of the information is Ministry of Environment information. But they need to know these things. For instance, if you're going to log, you need to know if you're harming an endangered species, etc.

The onus has been put onto the public to do this. But when they put in a major piece of legislation like that, they haven't put in with it help for us to get that. This is a really good thing for you guys to hear, I think, because it really understates the problem with information in this province. A major thing like forestry really interfaces significantly with the public. Basic information in that regard — it's like pulling teeth out of a chicken to find it.

For instance, we have a professor who went hiking. He found a survey crew putting ribbon up to build a road. We went to the forest district and said: "Oh, which company is that, and what are they doing?" And the forest district had no idea.

There's actually a survey crew that's been working there for a period of over a month, unknown to the forest district. They said: "You can call any number of these seven licensees." It turns out that the list was inaccurate. Actually, one licensee had left; another one had come in — again, news to the forest district. We're having to provide them with that information.

We have to follow up with each forestry company ourselves. Some of them are good; some of them aren't. I don't know if they even apply under FOI. Some of them are very small. They have 20 or 30 people. It's some guy named Jack who's, you know, cutting forests in the morning and maybe answering a phone in the afternoon while he's working at his truck — not really a kind of a guy that you can get really good wildlife information about his policies and practices when they go about these things.
[ Page 62 ]

We think the forest district should return to its role of being a one-stop repository. We spend a lot of time fielding the public's questions on this. A lot of it's misunderstandings. They've published notices recently in the newspaper saying that they have an exemption from sharing public information regarding spotted owls. We go and look into that, and it turns out they're just adopting regulations early.

When the public reads ads like that, they feel fearful. When they find out that the forest district doesn't know anything about it, they feel fearful. They turn to us. We've taken on the role that really should be part of government. It's unfair, and we can't do the job properly.

This morning I was at the Fraser Valley regional district applying for funding. We got approval in principle for $900 worth of funding to do freedom-of-information requests. It was interesting that you said that it shouldn't be a barrier. We consider it to be a major barrier. The reason for that is because this information needs to be got at, sought, on a permanent basis for a long period of time.

I don't know if you know, but the cabinet a few years ago reduced the amount of forestry that could be used to save species at risk in the province. If more than 1 percent of forest supply is used for species at risk, the rules don't count. The only way we can save a number of species that are threatened — for some of which it's the only place in Canada where they live — is to chase after seven or eight or nine different forestry companies on a weekly basis to find out where they're going, to see if they go over the 1 percent, because if they go over the 1 percent, they have a legal right to destroy that species.

Because of that — and we're committed not to let that happen — we have a lot of information that we need on a continuous basis. We feel that the Freedom of Information Act is not supporting us in defending our spaces, our species.

Another really good example of how things are wrong. There's a place called Post Creek — very steep slopes. They've tried to forest there several times. The residents there go up in arms. They try to get a few technical engineers to survey it. The logging companies back off. Somehow, all that information disappears. Another licensee reappears several years later stating the same thing.

You'll find in the Province…. There's a person who lives at Post Creek quoted today stating that. We've gone to the forest district and said: "Is this person telling the truth? Is this really happening?" They have no idea. So it's a concern of ours that we can't even determine if these things are happening or not. I take that person's word for it, but someone needs to record these things. It should be public information when major safety issues are at risk like that.

Again, in this current FDU proposal, they're putting that same area again, I've heard. It's the third time. One of the reasons we're going for FOI requests is to find out if this true or not, to put those people's concerns at rest.

[1540]

Their major safety issue is that the river, which used to flow through their village, has been rerouted. I'm not sure if it's by people or by nature. But should logging change the hydrology of that area, the river could easily return and run right through their village again. They're saying: "Come on. Why do we have to keep defending this, and what happens if we miss it one time?"

To put an FDU in, the requirement is only to put one ad in one newspaper once. We almost missed the last one. If that goes through, that will become part of the FDU. Once it's in the FDU, all public input stops. Those people have no legal right to say: "Hey, you shouldn't be logging up on that hillside." They have no way of finding out if this has been done before or not, if there are professional documents saying that it's dangerous or not.

They feel very fearful. They're turning to us. They shouldn't be turning to us. They should be turning to the forest district. It should be overseen with a proper freedom of information act, where it's one-stop shopping, where we don't have to call seven or eight logging companies, where we could find out what's going on. They should know of survey crews.

BCTS, at the end of Chilliwack Lake, has ribbons that go on for a couple of miles, all saying: "Cutting boundary." Again, we went to the district and said: "What's going on?" They said: "We don't know. Try calling these guys. Try calling those guys."

So when they put in legislation like FRPA, it's a major change to a major part of the economy. I mean, you couldn't get any more basic to B.C. than forestry, and you can't find out basic things like roads being built or ribbons being cut or people's homes possibly at threat due to landslides…. If we can't get that information, there's basically nothing else worth getting, in our view.

We're hoping that you guys can do something about that. The FVRD was very sympathetic. They said: "Yes, we want to get to the bottom of that." They also offered to give us professional assistance in interpreting these documents.

These types of major issues should not be in the realm of the public to have to fight. This is of interest to everyone. What's going to happen is something like…. A landslide is going to happen, and then there'll be a big investigation, and they'll start changing things. I mean, it's just a matter of time before that goes on.

It's not just in our area; it's all over the province, where these species are threatened, where people's homes are threatened, where people can't find out the information. We know ahead of time that these are issues. We had major landslides last year. It cost a lot of money, and nothing seems to be done about it.

Another thing is…. It's almost like a goose. Every day we wake up and reinvent ourselves. Why, after I funded
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the information, did they throw it away? And then Wendy has to go and ask the same question. Why isn't there a repository for basic facts, like which places are being logged, which roads are being built — this type of thing? Why would we have to go and have the research done all over again? It should be available to the public. It should be done in an efficient way so we're not wasting resources.

The reason we haven't done a lot of FOIs up to this point is because we were trying to do it without taxing government. But now that this proposal is about to go through…. We have 60 days left. To expedite the whole thing, we're going to put in a whole flurry of FOI requests, which are probably not really necessary. I bet you they've come up in the year before and the year before and the year before.

R. Cantelon (Chair): Wendy, do you have anything to add to it?

W. Bales: Yeah, I'm just kind of winging it here, last minute. I'm concerned with basic access to information and the downsizing of government agencies that do the work or that should be doing the work that the public has had to take on, as far as MOE and Fisheries. There are a lot of agencies that have been downsizing. A lot of their experienced help has been laid off, and those being rehired are not nearly as qualified to be doing that work.

There isn't really a place for the public to go, and it takes too long to get any help from those agencies. Basically, companies are regulating themselves these days more often than not. To get any reinforcement from MOE or Fisheries takes forever. By that time, quite often the damage has been done.

It's just left up to the public, who are handicapped. The public doesn't have the right to trespass. They don't have the hydrology qualifications or the technical expertise. But if you want to protect your rights or your property or protect habitat or be in stewardship of the land, it's left up to you, because there's just not enough manpower in government. The company only does, basically, what they're required to do, so quite often it doesn't get done.

[1545]

Also, the public just doesn't have the funds to uphold any legal issues, so basically, it's pretty hard for the public to defend themselves against big corporations, with companies who can quite often just claim bankruptcy if it's a big issue and change the name. I've seen a lot of companies continue on, do the same practices in several locations and still continue to work, so issues don't get resolved. They just get moved or ignored, basically — is what I've seen, anyway.

R. Cantelon (Chair): Well, thank you. Thank you both.

Do we have questions from the committee?

J. Kwan: In terms of the recordkeeping, which ministry do you think should keep the records? Is it forestry? Is it Environment?

G. Thompson: It's hard to say. I guess sometimes it's good to have separation. Often I think it should be the forestry, really. I mean, it's a forestry issue. It's amazing how little about the environment that forestry knows, when they are probably the biggest impactor against the environment.

J. Kwan: Just so that I understand the process correctly. Am I understanding that the original application — the licence that's been given out to a corporation to do the work…. That's recorded. But then the process is such that they could contract and subcontract it out to so-and-so, such-and-such, and then down the road that process…. It becomes lost as to who's doing that work. The Ministry of Forests does not keep track of that, and that's the problem. Am I understanding that correctly?

G. Thompson: Yeah, the way forestry works is what you do is you go off to an FDU, a forest development unit, and then you have basically carte blanche to do whatever you want. Past that…. BCTS is the main forester that we're looking at right now, which is owned by the government, by the way. They don't do cutting themselves, so they farm it out to smaller companies that actually do the cutblocks. The forest development unit is so massive, it's almost…. You can't even discuss it. It's got too many different issues. It's got different communities. It's just crazy.

What we really want to talk about is cutblocks. When the cutblocks are done, they're done on a very small scale by the contractees of BCTS, in this case. And many of which, actually, have poor records. There have been rulings against them at the Forest Practices Board, especially for items such as the tall bugbane. We have the last stands in Canada. I believe it was Tamahi, but I could be wrong about that.

One of the forest companies actually went in there and was caught purposely just cutting right through it. The process worked. They got caught. There wasn't much of a fine. They just didn't really pay much attention to it. So the process doesn't even work even when you catch them.

Basically, we don't know what's going on out there, and none of that seems to be recorded. For the people in Post Creek, they don't know who the contractor was or what the ruling was. They just know that they stopped the logging when they made a big stink.

This is the third time, so now they're saying: "Okay, obviously this is going to keep coming up. We'd like it recorded. Who is proposing what? What was the decision and why?" And it's probably in the best interests of the forest companies as well, because they're wasting their time and money repitching the same thing.
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D. Routley (Deputy Chair): Referring to the problem that you've described, and then referring back from that to the act, I'd first say that there's been a massive deregulation of the forest industry. We've seen its effects not only in terms of impacts on the environment but also safety to workers. The inquest into the death of faller Ted Gramlich pointed directly at the deregulation, which took, in his case, a falling crew of some 14 fallers, and it wound up being seven independent contractors, none of whom knew what either was doing or where the safety equipment was.

Combined with cuts to the ministry operations, the ministry can't keep track of the information you are requiring, what state it's in. It's a huge problem in communities like mine. You basically described the community that I live in, the Cowichan Valley, with steep slopes and largely uncontrolled logging practices.

That's not in direct reference to what we're here to talk about, but I think the remedy is. We've heard a lot here about routine disclosure. If we had routine disclosure of information from the ministry so that there was a repository, as you describe it, where that information would be routinely disclosed, stored and accessible to anyone free of charge or without the obstacle of fee, then we would have a better idea of what's happening and could participate more in a democratic process in addressing these issues from a community-based point of view.

[1550]

I think what you've told us reinforces what we've heard from a lot of witnesses — that routine disclosure of information, of all types practically possible, would be a huge benefit to the process. Do you think you would agree with that statement?

G. Thompson: I would definitely agree with that. The whole world runs by not doing everything on the same day. We all rely on what happened in the past. Why reinvent the wheel every day? It's not efficient. It doesn't make sense.

It wastes…. The next person who goes to answer the question — they're probably wasting someone's time as well. Why do it that way? So I agree with you totally.

W. Bales: Can I comment on that too? I also happen to be a director for the FVRD for area C, which has similar issues. So I've been dealing a bit with…. In fact, the amendment 21 issue is also in my area. It's a large amendment.

I'm also on a couple of provincial committees where the public doesn't have access to that information until the MLA says it's okay to tell them. Yet I'm supposed to represent the public. How do you represent a public that doesn't know what's going on? How fair is it to say that you know what they're thinking if they don't know what's going on in the first place?

D. Routley (Deputy Chair): There are some words that I'd like to read. "A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives."

Those were the words of James Madison, the fourth President of the United States and the author of the U.S. constitution. I think it's an old concept that we need to renew through this committee.

G. Thompson: Can I just make one quick comment on that? That's very good. You know, the Americans started with a really progressive state.

In our particular area…. I heard a really interesting comment recently. Someone from the Western Canada Wilderness Committee was asked to bring someone from Europe to see pristine wilderness. They took them to the Chilliwack River valley, but unfortunately, what they did to show them a pristine wilderness was to cross the border of the United States. The North Cascades, part of the Chilliwack River valley where our headwaters are, is in pristine shape, and it's dramatically contrasted by the Canadian side. So it's interesting to hear an American quote.

E. Foster: I need a point of clarification. You said you went to BTS….

G. Thompson: BCTS, actually. British Columbia Timber Sales.

E. Foster: Timber Sales, yeah. And they didn't know who was logging their timber?

G. Thompson: No, it wasn't BCTS. It was the Chilliwack forest district, which is part of the Forests and Range Ministry.

There are many licensees. BCTS is one of them.

G. Gentner: Just one comment. You've agreed to a notion — I don't know if you'll entertain it as a committee — of the need for more routine disclosure. You agreed with that.

That could mean an info commercial. I mean, you're into routine disclosure. It could be information…. Can you elaborate what you mean? I know it was suggested by my colleague. But I've been in public hearings settings where it's just basically a wink, wink, nudge, nudge. Are you looking for a town hall question period situation or…?

G. Thompson: No. What we're looking for specifically is…. I'm a Web developer. That's my trade. The way we work is that we don't do the same thing all the time.
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We always just try and add on to that or do something that's unique. The basic thing should just self-run.

So when people are making freedom-of-information requests, those should be recorded and searchable by other people. So if they're making another very similar request — I'm looking for a cutblock on mountain B — they could see: "Oh, this was asked for before, and here's what the results were. Here's what the geotechnical studies…." The river is still going to be there. The slope steepage will probably still be similar — you know? The town underneath it will still be there.

A lot of that information is being regurgitated multiple times. It doesn't need to be that way.

If I went to the Chilliwack forest district, I expect to find there a list of the licensees that are there, their addresses, where they're going to cut in the next year and that type of thing — things that need to be gathered by the forest district anyhow. It all comes centrally through their office anyway. If they just were to take those documents and open them up a little bit, we could go there instead of to each individual logging company.

That's what I mean. Other people have done the same thing. Why not share it? Why dig through the records a second time? That type of thing.

[1555]

D. Routley (Deputy Chair): Just to add to the routine disclosure and repository issue. The Obama administration — back to an American example — on their first day in office promised an open governance policy, which they delivered on January 12 when they promised to create electronic repositories. Every federal agency within 60 days would create these repositories — websites. They would be searchable by commonly used Web search engines and accessible by anyone, sortable and researchable.

Within 45 days they create three significant sets of documents on line and then within 120 days create an open governance plan for their agency. So all of that with all federal agencies occurring in less time than many individual freedom-of-information requests take.

G. Thompson: If I could just quickly comment on that. I think that will eventually come, due to cost. It's too expensive having people looking these things up. Eventually this will happen, just for the cost's sake alone.

R. Cantelon (Chair): Well, you've certainly given us some very good information and pointed us towards the future. We thank you very much for that, and we thank you for bringing your specific concerns here, which are very relevant to this committee's deliberations.

We're moving back in time but moving forward, because…. Oh, I'm sorry.

Interjection.

R. Cantelon (Chair): Certainly. No, we don't want to cut you short.

Z. Bezjak: Well, I was part of the group, so I was supposed to say a few things. I would like to, if you don't mind.

R. Cantelon (Chair): Please do — by all means.

Z. Bezjak: It's going to be very short. I understand.

R. Cantelon (Chair): That's quite all right.

Z. Bezjak: I want to support Glen Thompson because I live in Chilliwack. We have this beautiful valley, and it's going to be like the Amazon. It's going to be clearcut. I went up there, and they're already building the roads and everything.

What I would suggest is…. Is there any possibility that the public would have an ombudsman for the environment or somebody who will be a mediator between forestry or government to protect the public interest? Lately run-of-the-river projects…. The judge said that the public interest should really count something, not just the interests of the company.

Let me just tell you a few things about this place. We have so many endangered species. There are also the small frogs. When there's migration of those frogs, it's amazing. Actually, the whole city of Chilliwack is having volunteers to transfer those frogs so they don't get squished.

What I would ask, by the privacy act, is if we can somehow get a list of endangered species and also a map of their habitat. That's important because once we know the habitat, that should be standard. It was not standard so far. In the case of Aldergrove, they had to fight for that small fish, and other places, because habitat was not described. Then it was by judge, who ruled that the map should be coming with endangered species.

I would just say what we are having is…. We're going to have clearcutting and everything, and we have to wrestle with the basic things of privacy while we can expect deploying companies to start cutting the trees down, without consultation from the city of Chilliwack. Barry Penner is quiet on that. I would prefer…. As I said, if we can get the ombudsman or a lawyer, because we cannot defend ourselves in this case if we don't have information and we don't have people who can protect us.

That would be my point, if you would take it, please.

R. Cantelon (Chair): Thank you very much, Mr. Bezjak. I didn't mean to exclude you. I thought the other man was speaking for the group.
[ Page 66 ]

Now Alexis Barken has arrived. We got ahead of you. We'll go not back in time but back to your presentation.

A. Barken: About five days ago I had my surgery. If I'd known I'd need surgery, I would have asked Canada Line, Lavalin, for a little more money — and the two queens I had to sign off. When you're Irish or French, you don't get too excited about the British.

[1600]

R. Cantelon (Chair): If you could take a seat. Do you need some assistance? Do you need some help?

A. Barken: Oh no, no. That's quite all right. The cane is quite good. Gets me a seat almost anywhere I go, including the Gretzky bus — No. 99 in Vancouver.

R. Cantelon (Chair): Great. Okay, the floor is yours, and we have you scheduled for 15 minutes, to 3:15.

A. Barken: Oh wow. Gee. Maybe I could learn a dance step or two, ladies and gentlemen. Would you like me to start now?

R. Cantelon (Chair): Please start now.

A. Barken: All right. February 2, 2010, 3 p.m., Alexis Barken. Office of the Clerk of Committees, Legislative Assembly of British Columbia, Special Committee to Review the Freedom of Information and Protection of Privacy Act, RSBC 1996, chapter 165, pursuant to section 80 of the act, to report to the House by May 31, 2010.

Good afternoon. I'm here today not as a boring Canadian citizen, a B.C. citizen, resident…. As Ottawa has claimed that I am officially a senior citizen as of November of last year, you all are to treat me right and give and/or deliver up to me what I seek. That kind of says it on the card, on the back of Parliament Buildings in Ottawa.

I have attached six pages of argument, which I will read, and 22 pages of support letters and court documents, etc. This, ladies and gentlemen, is very gripping, very compelling. If we were in the United States of America, there would have been quite a criminal investigation. There might still be.

Anyway, I am a victim of a violent crime done on April 15, 2006, at Fraserside shelter in New Westminster. The former Chief Justice Donald Brenner sat on a finance committee in a conflict to get financing and funding for Fraserside Community Services Society and is related to the executive director and a co-defendant, Caroline Bonesky, director. The chief justice retired three days after I faxed him directly, demanding to advise me of his association, as I wished to have the judicial council, who appoints Supreme Court judges to the bench, and further to have the RCMP federally investigate him.

This crime, not provoked, was so violent. Michelle Strongarm, Métis, nearly killed me — a sucker punch, right temple. Royal Columbian Hospital, which I attended between the 15th and 18th of April, saw there was nothing wrong. What I really found out, prior to this knee surgery, is that I had a fractured jaw, skull and a serious concussion. The blow to the right side of my temple sounded like a 2-by-4 hitting a metal desk. Just that much more, and I would be dead, not here.

Prior to knee surgery — and of course, Canada Line, as I mentioned, and the sinkhole in the snow last year — an anaesthesiologist, well-trained, looked at these tooth X-ray that Royal Columbian had taken and remarked that that was quite a fracture. I had not seen these X-rays prior to that day, which was a week before the surgery last week. "You have a head fracture, which…." When medically negligent and not tended to, the fracture heals itself over the years, thus forming a line of lesions. It was first thought that I had cancer of the jaw. I would have five years to live if this was the case. Luckily for me, I do not have cancer. It will take two specialists to deal now with this problem.

I'd like further to convey to you that there has been a great deal of interference by the New Westminster police department and the Vancouver police department on this matter. They all go: "Oh well, there have been no injuries." Well, X-rays tell a different story. My concern was frivolous. Documents do not lie, and internal affairs inspector Marion Garalini and Chief Constable Jim Chu of Vancouver PD have felt that they should get involved — for what reason, I don't know. It wasn't in their jurisdiction four years ago.

Further, the FOI coordinator, Lisa Mitchell of the New Westminster police department, released the Crown witness, eight plus mine, and also a sister-in-law of a full-patch member of the Hell's Angels, Vancouver, with no informed written consent by the Crown's state witnesses. No protection under the act. Testimony for trial was sold to ING Intact Insurance out of Edmonton for $62. The documents are all there.

[1605]

I will also alert you to a number of violations of privacy and a phone call to a fraud welfare person to get clients and phone numbers by various police departments in this province — again, well documented.

More specifically, the Vancouver police department, under false pretences, released to ex-RCMP Robert Barrett…. He's the fraud investigator for human resources. The Police Complaint Commissioner, Dirk Ryneveld, at that time, and ex-superintendant staff sergeant RCMP Bruce Brown fully supported this action and viewed the rights of citizens of B.C. as irrelevant. The new chief commissioner, Stan Lowe, is also of the same view. Mr. Lowe was formerly with the criminal justice branch in Victoria.
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Here are the sections of the act that must be changed, and only a warrant or a court order to get access for police or others…. You can't get this going through the tax department, yet somehow in this province of British Columbia it is very easy.

Section 15, "Disclosure harmful to law enforcement" — really. Section 19, "Disclosure harmful to individual or public safety." Section 22, "Disclosure harmful to personal privacy."

"Division 3 — Notice to Third Parties." Section 23, "Notifying the third party" — victims of crime and/or the witnesses. Section 30.4, "Unauthorized disclosure prohibited" — must be closed.

"Division 2 — Investigations and Reviews by Adjudicator." Fines, criminal charges, restitution and the Criminal Code are in 738.

To Victoria, it's victims, and then it's witnesses. Further to this, please, somewhere in your next hearing, return "pain and suffering" to the Victims of Crime Act, starting at $300,000 minimum so that victims and their estates do not have to sue the criminals and the state, which is really liable.

Note that your colleague Minister Rich Coleman's staff gave money to Strongarm to flee this jurisdiction in 2006, when the RCMP and a tough judge dealt with her in Saskatchewan a year and a half later. They knew there was a warrant for her failure to appear, gentlemen and ladies, for her first appearance.

The reference material I've attached is a list of documents — the description documents and date; the FOI Act hearing as of today; the witness and confirmation, exhibit 1; your rights as a victim of crime, exhibits 2 and 3; Supreme Court action SO 46623; the Vancouver police department; Police Commission; human resources, exhibits 4, 5, 6, 7 and 8; failure to cite access to Crown witnesses, exhibits 9 and 10; letter to chief constable in New Westminster, Bruce Brown, deputy chief, Police Complaint Commissioner's office, exhibit 11; Intact letter to Fraserside and Dyer, their lawyer, for everybody, exhibit 12; the Canadian lawyers' legal ethics privacy August 2009.

The system has been compromised big time, not only in B.C., but also in Ontario — right across this country. Exhibits 13 and 14, international justice limited witnesses.

Exhibits 15 and 18, to New Westminster FOI, June 17, 2008. I got this in June 2009. Exhibit 17, letter to the B.C. Ambulance from Cassidy, exhibit 16. That's a very, very compelling letter. Everyone should read that.

Court of Appeal, Madam Justice Neilson, exhibit 19. Notice of leave to appeal Van PD and New Westminster police department, exhibits 20 and 21. Third demand to New Westminster, Lisa Mitchell, to produce all documents and informed consents signed by the witnesses for the Crown not received to date. Attached, six pages of written argument and 22 support documents.

I hereby close my submission to this committee. God bless you all, and thank you.

R. Cantelon (Chair): Thank you, Miss Barken. It's quite an extensive documentation, quite a story you told us. But to try to bring us back to how you'd advise this committee, what specific recommendations do you think were at fault in the legislation that you think we should change or adapt?

A. Barken: All right. From my own experience? My own experience in applying for FOI requests has been very straightforward. Of course, when you're armed and dangerous with the tax department on one side and the media on the other, it's amazing how everybody goes: "Oh, okay."

[1610]

I don't have a problem getting the information. It's usually when I find out what they've done that I am greatly troubled. This is not the first time this has arisen. Only because of the criminal injury and because I came to the aid of a mentally ill Jewish woman friend many years ago…. I watched eight policemen arrest her because she had sent her former Jewish business partner an e-mail calling him a nazi. Of course, I didn't know you could get arrested for sending your former partner and calling him a nazi, but anyway.

I raised the issues as to how the police handled the mentally ill woman. We read about people being killed every day because they're mentally ill. They took it as it was none of my business. It was all fabricated. It was far from fabrication.

What we need to do under the Freedom of Information and Privacy Act, as I've mentioned, is we have to open and close a number of doors. The main perpetrators of this are primarily law enforcement. The RCMP, as I'm told, can no longer make a phone call and get information. That's my doing.

It took a lot. It took a lot of beatings. Trust me. I'm still feeling the knives in the back because I've raised those issues many years ago. But what I'd like this committee to do is to go through the act. Go through the sections that I have pointed out. I have some memory problems too.

R. Cantelon (Chair): Well, that's quite all right. They're basically exemptions to the act.

A. Barken: Yes, and those are very, very critical. They infringe not only on the privacy rights, but on your Charter rights, your legal rights, your equality rights — everyone's rights.

Because I live in Vancouver, and because I'm active in my community…. I mean, I go a little slower now, because I walk with a cane. Hopefully, in a week's time, I'll be back to normal. I have become, I guess, a target for
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some members of law enforcement and some criminals on the street who know who I am because the police have made it very clear.

It's a dangerous situation to live under, but hey, I'm 65. I've had a good life, a rich life — by people, not money. But we must make changes under the privacy act, and this wide, sweeping…. I'm sure if you talked to Jennifer Stoddart, Privacy Commissioner, your federal counterpart, her views…. I'm sure if you talked to…. The former public complaint commissioner, who is a director in the B.C. Civil Liberties, could talk to you about privacy issues in the RCMP.

But because this has affected me personally over a long period of time, I have my concerns. I looked at this very closely, gentlemen and ladies, for a very long time. There are flaws and weaknesses.

These are the areas that I feel that are very relevant to change. Applications are straightforward. You can either use the form or write a letter. Then I always put down…. What's it going to be — the media or the tax department?

The last time I got this so incensed, I had my pals — because I have worked for the tax department, and I have a background in securities, tax law…. The criminal investigation branch went through the Vancouver police department's pension program and found out that they're making unusual contributions, and what did that cost them — 150 early retirement? Is that correct, Jenny? Then they had to negotiate with the tax department to say: "Oh my goodness. We forgot to talk to you about this." Then many of them were brought back under contract to deal with, I understand, the Hell's Angels.

We have a serious issue here, and the issue is privacy. When your privacy goes, it's gone. Only you can correct this; only I can ask you to correct that. That is why I'm here today.

R. Cantelon (Chair): Thank you very much. It's been a moving presentation. Do we have questions from the…?

You've given us a lot of material to digest, and I'm sure we'll take it into full consideration as we move forward. Thank you very much for coming here and openly telling your story.

A. Barken: You're welcome. I think I have shares in Staples. Thank you, ladies and gentlemen, for holding this hearing.

R. Cantelon (Chair): We have one other presenter to come who tells us he'll be here at 4:20 — Warren Walker, who is the last one. We'll take a brief recess, but please come back here in no later than ten minutes, panel members. That'll be the last presentation of the day. So a brief adjournment.

The committee recessed from 4:15 p.m. to 4:25 p.m.

[R. Cantelon in the chair.]

R. Cantelon (Chair): We have our final presentation of the day, Mr. Warren Walker, who has come forward.

Warren, thank you for coming, and we look forward to your presentation. The floor is yours, sir.

W. Walker: Thank you very much, sir.

I don't know whether you've had a chance to read the one-page report I made. In a nutshell, what's happening is that the freedom-of-information request on my own children will cost me $2,500 — $2,000 for a lawyer and up to $500 for copies of the files.

What I'm saying in my recommendations is that it's time that the government of British Columbia take into consideration the Freedom of Information Act, how it operates. I'm sure you've heard this all day — that government agencies hide behind the information. But what I'm saying is that it's time that people stop using the act as a place to hide what they're saying, what they're doing.

I've run into many situations. I outline one where I was in a situation where I got hurt. I had a stroke and lost the use of my left side. Getting into an assisted-care complex, my ex-wife…. Well, it doesn't matter.

Allegations were made against me that I didn't know were made against me, which had been thrown out in a custody and access report that cost me $7,000. Yet they still showed up when I was being assessed for this assisted-living complex. In the situation I was in, I managed to get around it, but it wasn't pleasant. It wasn't very much fun at all. I wouldn't want anybody else to do what I had to do and go through the stress that I went through in order to get into proper housing. After being paralyzed, it's very, very difficult to get around.

I want to ask you for four recommendations. One, government ministries should be directed to provide information on their minor children to parents at no charge without a formal FOI request. What I'm asking for here is that the government provide information on parents' children without a parent having to go through an expensive legal process through the B.C. Supreme Court to get an order to do that. That's my first recommendation.

I asked for it to be done at no charge to whoever the parent is as a parent. At the same time, if there's something that has to be done, I could have sat with the social worker and gone through the file on my children and found out what was important. Then if I needed to get information, great. I'd put in a formal FOI request at that point and then go to court after that.

Secondly, a simple brochure describing FOI rights be given to all clients and to those requesting information. In other words, everybody has rights through the FOI
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legislation. How many people really know what they are? I don't think as many as we'd like to know.

Thirdly, social workers in government ministries be compelled to provide information they use to assess their clients to the clients. This happened in my situation, where people assessed me without me knowing the full story of how they were assessing me, finding out later that information on my file had no need to be on my file. They were still on my file — those allegations — and that's how I was assessed to get into the assisted-care complex. How many others have had this happen to them — hundreds? Thousands? I think thousands.

No. 4 is that government ministries be compelled to set up a streamlined process on FOI requests and establish protocols for their prompt attention. I'm sure you've heard this all day, so I'm not going to go to that. I don't need to belabour that issue at all. That's what I have to say.

R. Cantelon (Chair): Thank you very much, Mr. Walker.

Do we have some questions?

R. Sultan: I have a question. I'm just curious. Can you give just a brief explanation of your impression of why it cost you $2,000 to get FOI access?

[1630]

W. Walker: Well, it cost me $1,800 for the lawyer. I wrote a cheque for $1,800, and it cost me another $600…. I didn't spend the money. I gave up at that point. I got tired of it. It was another $600 from the law firm that had complied with the FOI, as I asked, from the Ministry of Children and Families…. They had their files. Then the law firm wanted another $675 to give me copies of those files. They were around 2,000 pages.

R. Sultan: Is it your impression that persons in a situation such as yours, making an FOI request, need legal assistance? Are the forms that complicated?

W. Walker: My opinion again. This is my opinion. I don't think the forms should be that complicated. I hired a lawyer through it last time. Next time I do it, I'll do it myself. I want to see a simple form. I want to fill it out and get done it. The information is here.

Secondly, I do believe I need to prove that I'm the natural father, but they know. I mean, it's all in their files. They know who I am. I showed my ID that that's who I am. I go and see the file. If I need it printed out and I need to go to court, then fine. I can pay for that in terms of the papers at a nominal rate. But let's do the FOI request.

After, if somebody wants a printed copy of the file, I'm in total agreement that a formal FOI request be put in. But in a situation like this, where I'm dealing with the Ministry of Children and Families, I do not believe that I need to get a formal FOI request and show up at the door with a court order, saying: "I want to look at that file now, please." I should be able to go in there, prove who I am and go see the file on my children.

In my case, my ex-wife was arrested for being drunk with the children in her care. I was in Salt Lake City at the time. The ministry phoned me and said: "Can you take the kids?" I said: "I can't. I'm not in front of my airplane. I can't get there." So they took them into custody and kept them there for three weeks.

Another time my ex-wife crashed her car with my children inside the car while she was drunk. She got arrested, and again my children were taken into custody with the Ministry of Children and Families. I would have liked to know exactly what transpired. I didn't know about it. I didn't find out about that until three years later.

M. Dalton: How did you find out the information on freedom of information? Did you get it through the lawyer, or did you get it on line or what? You're asking for a brochure to be made. How did you find your information?

W. Walker: I talked to a lot of people that work for the Ministry of Children and Families, a lot of social workers. The information was that somebody let the information drop. That's the reason I found out. I confirmed it later when I did a search on her name and found out more about the charges, etc. — that she managed to get it dropped after 15 appearances.

D. Routley (Deputy Chair): Cost was the main obstacle to getting information?

W. Walker: Sure. Certainly $2,000 legal fees — between $1,800 and $2,000 — to get the information on that file with the ministry so that I could see it, plus another $500 or $600 — 2,400 bucks. I don't think I should have to do that.

I think that meeting with the social worker could have been done if I had sat down with a social worker for half an hour, said I want to look at my kids' file and see what's going on with them. Then I'd get a chance to look at it. Then fine. If I needed anything printed off, great. You can do that and then do a formal request after that.

J. Kwan: I'm going to let my good colleague Stephanie Cadieux go first because I seem to steal all of her questions. I'm going to let her ask her questions, and I'll come back.

S. Cadieux: Just for clarification, Warren, if I could. When you were talking about the fees, you said that the $600…. You referenced that you had to pay that to the
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lawyers, but in the note it says that you needed to pay the $600 to the ministry. Can you just confirm for me?

W. Walker: The Ministry of Children and Families in Abbotsford was dealing with the law firm. I went to them and faxed them the order, and they ended up saying: "Go to this law firm. They have the files. They can print it up and give it to you." I don't know the exact reasons why, but I knew I had to deal with a law firm at that point.

J. Kwan: Just to get a better sense, did you have to go through the court system to gain access to custody of your children? In other words, is it the case that custody of your children was awarded to your wife, and therefore for you to access the files through the ministry required these extra steps of FOI'ing lawyers and so on and so forth?

[1635]

W. Walker: I was working full-time to pay the legal fees. I worked at it for three years. I capitulated eventually because I was looking at another $25,000 legal five-day court process. I couldn't do any more. I was totally stressed out. It was horrible.

So I capitulated and gave her full custody of the kids. I, at that point, kept on going and going and paid support. It's been a nightmare — that's all.

R. Cantelon (Chair): Well, thank you very much. The regulations and the recommendations we have are always very dry, but until you put a personal face on them and see the implications personally, as you've very poignantly told us, we don't really grasp the implications on an individual's level of what they can mean to you.

You've put it very succinctly and very directly, and I thank you for that. It's made, I know, a significant impression on the committee, Warren. Thank you so much for doing this.

W. Warren: Thank you so much.

R. Cantelon (Chair): Well, that concludes our business for the day. We'll adjourn now. We have no presentations in the morning. I know lots of the members have other things they can do as well. So we'll convene at one o'clock tomorrow afternoon in Victoria.

We were scheduled to be at ten o'clock. We have no presentations in the morning, so we'll convene at one. If anybody appears between ten and one, we have room in the afternoon to put them in.

D. Routley (Deputy Chair): In that case, Mr. Chair, would there be an opportunity for the committee to discuss the challenge that was made to us earlier around the Olympic accounting from one of the presenters? I would like an opportunity for the committee to consider writing a letter before the Olympics begin, and that would be before we have full…deliberations.

R. Cantelon (Chair): No. Our purpose here is to get input, not to do deliberations. In the absence of hearing information from them, I don't consider it to be appropriate to do that at this time.

We're in the listening period. There'll be ample time, and you can make whatever political comments you wish. I encourage you to do so. There will be ample time to hear the reasons to and from on that issue and move forward.

It will be a public hearing tomorrow, and that will be the subject of our business.

Motion to adjourn?

The committee adjourned at 4:37 p.m.

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