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

Wednesday, February 3, 2010

1:00 p.m.

Douglas Fir Committee Room

Parliament Buildings, Victoria, 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; Jenny Wai Ching Kwan, MLA; Ralph Sultan, MLA

Unavoidably Absent: Harry Lali, MLA

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

2. The Committee extended its deadline for submissions to Monday, March 15, 2010.

3. The Committee adjourned at 3:33 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

Wednesday, February 3, 2010

Issue No. 4

ISSN 1708-3168

[ Page 71 ]

WEDNESDAY, FEBRUARY 3, 2010

The committee met at 1:01 p.m.

[R. Cantelon in the chair.]

R. Cantelon (Chair): Good afternoon, everybody. I'd like to call this session to order. My name is Ron Cantelon. I'm the MLA for Parksville-Qualicum, and I'm Chair of this special parliamentary committee. I'd like to welcome everyone in the audience and thank you for taking the time to participate in this important process.

The purpose is pursuant to section 80 of the Freedom of Information and Protection of Privacy Act. The special committee of the Legislative Assembly must conduct a comprehensive review of the act at least once every six-year period. This committee is charged with the third statutory review of the act. Previous reviews were completed by all-parliamentarian committees in both 1999 and 2004.

In carrying out our review, we will be holding two all-day sessions, public hearings. Yesterday we held one in Vancouver and today here in Victoria. During these meetings we'll hear from witnesses and parties who have preregistered in the Office of the Clerk of Committees.

Now, there are a variety of other ways that British Columbians can share their ideas with us. We accept written submissions by letter or mail, and we are also inviting video or audio files to be submitted. All submissions must be received by February 28, 2010, although I'll serve notice that later this committee will reconsider that date and give people more time.

Further information on how you may participate using one of these methods is available on our website, 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 in our committee's terms of reference, we are required to complete our consultation process and report back to the Legislative Assembly no later than May 31, 2010.

Today we are here to hear from witnesses according to the agenda that was put forward by the Clerk of Committees. We have allotted times, in some cases, for more robust questions and answers.

I'll now start by beginning to ask our members to introduce themselves, starting with Mr. Eric Foster.

E. Foster: Eric Foster. I'm the MLA for Vernon-Monashee.

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

S. Cadieux: Stephanie Cadieux, Surrey-Panorama.

R. Sultan: I'm Ralph Sultan from West Vancouver– Capilano.

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

G. Gentner: Guy Gentner, Delta North.

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

K. Conroy: Katrine Conroy, Kootenay West.

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

R. Cantelon (Chair): Doug is also our Deputy Chair.

The proceedings of the meetings are also broadcast on the audio channel of the Legislative Assembly.

Mr. Bloy, would you like to introduce yourself?

H. Bloy: Harry Bloy, Burnaby-Lougheed.

R. Cantelon (Chair): Joining us today, I'm pleased to introduce the Clerk Assistant and Clerk of Committees, Craig James. Also with us are Kathryn Butler, committee researcher, and the staff of Hansard Services. Michael Baer, Jean Medland and Gail Swetlow will record and prepare a written transcript of this meeting, and they're behind the glass.

So with those introductions, I'd now like to ask Ted Gerk from Kelowna to come….

D. Routley (Deputy Chair): Mr. Chair, just before we go any further, I'd like to move a motion that, based on the presentation yesterday of Stanley Tromp of the Canadian Association of Journalists that indicated to us that the costing of the 2010 Olympics in Vancouver and the activities of VANOC are not covered by our FOI Act; that 2012 Olympics in England, in London, are covered by their FOI provisions…. He indicated the urgency and the public interest that would be served by the Olympic costing and VANOC's costing being covered under FOI.

[1305]

So I would like to encourage the committee to join with this side to resolve that the committee write a letter to the Premier, encouraging him to immediately open up VANOC and all Olympic costing to FOI access.

R. Cantelon (Chair): Well, our purpose today is scheduled. I think that's a significant motion. I think, rather than rule on it…. I don't want to specifically do that. But we have an agenda here, and the agenda today is to seek input from the public. Any motion of that, of a substantive….

D. Routley (Deputy Chair): Point of order, sir.
[ Page 72 ]

R. Cantelon (Chair): Well, I'm ruling that the motion will not come to the floor.

D. Routley (Deputy Chair): Point of order, though. The motion needs to be seconded before it can be ruled on.

R. Cantelon (Chair): No, it doesn't.

So with that, I'm sure we'll have ample opportunity as we sit and consider issues like that, as we consider our recommendations to the Legislature. That is our task, and I'm sure we'll have ample opportunity to consider a wide variety of issues.

J. Kwan: Then perhaps we could ask the Chair to designate a specific time for this committee in which we can have that discussion regarding this motion. If the timing is not appropriate for today, with the anticipation of presenters, then it would be appropriate, Mr. Chair, for you to set a time with our deputy so that the committee would have an opportunity to do that.

I would ask you to commit to that, please.

R. Cantelon (Chair): What I'll do is accept it at this point as a notice of motion and not rule yes or no. I think we need to…. I'll discuss it with our Clerk of Committees, because it is…. My immediate reaction is that it's somewhat peripheral to what we're tasked with by the Legislature. It can certainly form part of our report that it goes forward, so I accept your comments, and I will provide a full written response at a later time.

With no further delay, I'd like to ask Ted Gerk to come forward. Ted, the floor is yours.

Presentations

T. Gerk: I'm most grateful for the opportunity to appear before you today in order to advance my thoughts on the topic of information and privacy in British Columbia. My name is Ted Gerk, and I come to you from Kelowna. I speak on behalf of myself today.

I want to speak to you about a culture of secrecy and culture of denial that has sprung up around the topic of access to information. I wish to paint a scenario for you.

When FOI legislation was passed in this province, we all know it was hailed as a landmark. Colin Gabelmann, considered the father of FOI in B.C., stated that the legislation was saluted as the gold standard when it was introduced. He also stated that when the act was introduced, it would empower citizens so that they can fully exercise their democratic rights. The reality is that if government has information which is denied to citizens, it becomes extremely difficult to make informed judgments about government policy or endeavour to influence public policy.

Gabelmann also stated in a speech in 2007: "This is a very sad time in British Columbia for those of us who believe in open government. As you know, we don't just believe in it because it's a nice thing to do. We are talking about the very foundation of our democracy." Idealistic, to be sure.

When I speak of a culture of secrecy and a culture of denial, I am speaking, of course, of a major amendment to the Freedom of Information Act that took place in the year 2001. The British Columbia government passed a law exempting one topic, declaring this topic to be off-limits. Interestingly, as I researched the many hearings this legislative committee has held over the years and analyzed speeches and submissions on B.C.'s information and privacy law, there is little or no mention of the one topic banned, and an amendment passed in the spring of 2001.

Media, while crying foul when the legislation was introduced and then passed, have also remained silent in the subsequent years. It is as if a curtain of secrecy and denial was drawn over the province, blanketing even those information purists who had always held to a standard of open government but were content, for their own personal reasons, to remain silent while this culture of secrecy and denial took root.

The public and media are surprised now, after all these years, at the travesty that FOI has become in British Columbia. I would submit that many of them failed to recognize that when you allow a government to make any topic off-limits, make it secret, you have in fact sown the seeds of secrecy. How can you complain when it naturally expands to other areas?

[1310]

Our former Information and Privacy Commissioner David Loukidelis stated in a letter going out to then Deputy Premier Joy MacPhail: "Bill 21 will, for the first time, specify a subject that is essentially off-limits under the FOI Act.'' I am, of course, talking about the censoring of abortion-related information in the province of B.C. These restrictions are found in section 22.1 of the act.

When Bill 21 was introduced, it also came with a list of hospitals that were required legislatively to provide access to abortion services. It created the amazing dilemma that I can know that my local hospital is providing abortion service, but I'm not allowed to know how many.

Last year when Statistics Canada released their annual count of induced abortions in Canada for the year 2006, there was a list of provinces and the amounts of abortions performed. But next to the reference for British Columbia it stated that the statistics are too unreliable to be published.

Let's look back at another statement by the former Information and Privacy Commissioner. Mr. Loukidelis stated in his letter of March 30, 2001, that the censoring
[ Page 73 ]
of abortion-related information was unnecessary. He was not consulted as his office should have been, and this was the latest example of the creeping repeal of the FOI Act.

It is important to note that when the legislation concerning the censoring of abortion information was introduced into the Legislative Assembly in March of 2001, Joy MacPhail, Penny Priddy, Ujjal Dosanjh and Evelyn Gillespie took pride in introducing representatives from Planned Parenthood; Pro-Choice Action Network, formerly the B.C. Coalition for Abortion Clinics; the Wiebe Medical Abortion Clinic; University of British Columbia Students for Choice; and the University of Victoria Students for Choice.

One of the validators introduced, and present at the introduction of the legislation was a young activist who had vandalized a pro-life display at the University of B.C., information that was in the public knowledge at the time. In fact, a video of the vandalism is still available on YouTube.

What sort of message was sent to the people of B.C. during the PR campaign for Bill 21 the subsequent provincial election? Government closely aligning themselves with political activists that lobby them on a regular basis, then ensuring that information detailing that lobbying is never made public.

Revelations leading up to the introduction of the legislation, all courtesy of FOI, provided embarrassment after embarrassment directed toward the government and the bureaucracy — of an Attorney General who filed a false affidavit, who was faced with the threat of having to resign; of the Ministry of Attorney General who held a series of secret meetings with political activists, all seeking to eliminate public debate on this public policy issue.

As broadcaster Rafe Mair stated in the Georgia Strait: "Clearly the perception is that the Attorney General's office is no longer independent but political as hell."

Already on agenda submitted by the B.C. Coalition for Abortion Clinics in advance of their meetings, freedom of information was a topic that they wanted discussed. The reality is that the integrity of the act protected the release of personal information. Repeating what was said in 2001, former commissioner David Loukidelis stated that of the 450 decisions made by the year 2001, less than half a dozen related to abortion.

But what of other embarrassing revelations that made government uncomfortable? We discovered a College of Physicians and Surgeons who didn't even follow their own rules when it came to the accreditation of one of Vancouver's abortion clinics. We discovered the tales of a special committee set up within the government — the abortion services working group.

Through FOI requests, we discovered that political activists were meeting with representatives of both the Ministry of Health and the Ministry of Attorney General. At the same time, the government representatives were meeting with these political action groups, and members of some of these same groups were holding political protests against those who would oppose them politically, one of which took place outside Vancouver's Catholic cathedral in which individuals were dressed up as pregnant nuns.

On a number of the agendas of these secret meetings, pro-choice activists would ensure that freedom of information was placed on the agenda. In fact, one such meeting, in the minutes of which were October 8, 1988, was FOI request as harassment.

The B.C. government was also pushing for expansion of abortion in their demand that the federal government allow the RU486 abortion pill, a demand that came under fire by the federal government.

Perhaps I misunderstood the democratic and political process in British Columbia. I didn't think it was too much to ask that we be allowed, in a democratic country, to monitor abortion advocacy being undertaken by our government. I mean, the same pro-choice groups that secretly met with government have also called for a ban on any discussion about abortion on university campuses throughout the province and throughout the country.

What's my point, and what is the solution?

[1315]

The amendment added to the FOI Act in 2001 was put there plainly and simply because the government was tired of having to defend their abortion policies and activism and talk about the issue. They were meeting with activists on one side of a public policy issue, all the while refusing to meet with a differing opinion.

News commentators of the day acknowledged the politicization of the Ministry of Attorney General. The government of the day didn't seem to care that they were meeting with activists talking about their political opponents, while those same activists planned and implemented public protests against those who had politically opposed them.

Now, if I understand the principle behind democracy and freedom of information, it is that every topic should be open for discussion. I mean, let's be honest. There are other controversial issues in British Columbia. Our history as it relates to labour union issues is hardly one of peace and contentment.

If our former Information and Privacy Commissioner was correct — and I mean, why wouldn't he be? — less than half a dozen FOI appeals out of 450 are hardly grounds for making a topic off-limits. FOI requests as harassment? What members of the Legislature wouldn't hesitate to make a discovery showing ineptitude, political interference or favouritism? We call it democracy.

Larry Siedentop, in his book Democracy in Europe, stated: "When intermediate associations are weak and the state machine so powerful, private interests are always tempted to establish clientele relations with the
[ Page 74 ]
state. They seek favours in the dark, so to speak, rather than demanding justice in the light of day."

It has been nine years of silence since Bill 21 was passed, nine years since the topic was declared off-limits to the people of British Columbia, nine years of denial, and I don't mean denial from the government. It is as if section 22.1 of the act does not exist.

I do not see newspaper columnists lamenting over this information demise. I don't see freedom-of-information activists lamenting over this topical ban. Why is that? Is there consistency in the concern over the creeping repeal of information? What if government banned the release of information on topics such as the cutting down of trees, labour union activities or climate change information?

I'm thankful that today's modern technologies can assist us in educating British Columbians on the history of this ban on information. We've started both a blog and a Facebook group that will present to the public the history of the information that the B.C. government did not want to make public, the history of why this legislation was passed, so that everyone understands the process and why this information is censored in this province and will, hopefully, participate in the democratic process to see this ban overturned.

In conclusion, I leave you once again with the words of Colin Gabelmann in his speech of 2007. "Prof. Donald Rowat, way back in 1965, put it very well: 'Parliament and the public cannot hope to call the government to account without an adequate knowledge of what is going on; nor can they hope to participate in the decision-making process and contribute their talents to the formation of policy and legislation if that process is hidden from view.'"

Members of this committee, if you don't act, what will be the next topic declared off-limits in our democracy, and what political viewpoints will be banned from discussion next? My submission is respectfully submitted to you, and I thank you sincerely for the opportunity and privilege to speak.

R. Cantelon (Chair): Thank you very much for taking the time to do such a well-written and concise presentation. Are there questions to the witness? Apparently seeing no questions, again I want to thank you for taking the time out of your day and busy schedule to come and make this presentation to us.

The next witness on our schedule is Lyne England, and I'd like to ask Ms. England to come forward. Welcome, Ms. England. The floor is yours. Your mike is live, just to let you know.

L. England: Thank you very much. Good afternoon, ladies and gentlemen and committee members. I appreciate the opportunity to be here to share a story with you today that could happen to any of us.

My mother was hospitalized and subsequently moved into residential care. As many before us, we visited the facility, were given a welcome book, completed the necessary paperwork and signed to pay the monthly fee for service.

[1320]

Understand that moving anyone into residential care is a culture shock. While everyone on the care team does their very best to be welcoming, the fact is that once entered through the portals, one's personhood is no longer. Life as they knew it will never be the same.

You are now living inside walls where your every move and experience is ultimately either directed or dictated by the routine of the facility. We moved the approved-of furniture permitted into a room. We had her clothing sorted for marking. We learned the routine of the facility meal times, activation, bath, hairdressing and visiting times.

We were all prepared, or so we thought. What we didn't know was that there was soon to be another new model of care implemented by the Vancouver Island Health Authority in residential services, which would affect staffing levels across the health region.

Care workers in all disciplines can achieve only so much in a given time frame. With an increased complexity of care along with the reduction in staff, it didn't take long for the effect on the quality of care being provided to become noticeable. Increased incontinence because there isn't enough time for toileting. Less mobility because activation staff often work double duty. Residents left in bed because there's not enough staff to get them up, and working chronically short.

One staff being away can be managed. Two away but not replaced puts a large burden on care staff. There were days and shifts that worked four staff short, yet the workload must still be completed somehow. Soon family members, advocates, partners and residents themselves were speaking out, trying to find out just what was going on here. It was 2005 when the first request was made, trying to establish the number of care hours provided to residents housed within the Vancouver Island extended care facilities.

One facility's council decided to ask how many care aides, LPNs and RNs worked particular shifts and hours in the facility over a set number of months. The chronology of their efforts begins in February '05 with a letter to the then Minister of Health Services. In May of '05 the director of seniors health acknowledged awareness of these issues. By June, family members were writing letters. Then an ombudsman's report was filed. In August a letter went to the Minister of Health. Requests were also made to the facility director.

Waiting while a call bell is ringing and ringing, the resident can wait no longer and soils themselves. In '06 some data was received, but no meaningful statistics were gathered. Finally, in September of '06 the director
[ Page 75 ]
stated they had the data but could not release it without the director of residential services' approval. So a letter of request was sent, and a response was received, stating incredibly that they were not sure of the question. So another letter was sent.

November '06 follow-up, repeating a response. November 22, '06. Referencing the history, another letter was sent this time to the vice-president CEO of VIHA. In December '06 a response was received that said the requested data "is not collated or available in our information systems."

Four more attempts were made via correspondence and a meeting. However, it was very clear that staffing-level data in the residential care areas was information that the Vancouver Island Health Authority was not about to make public.

A resident sits in their bed, a meal before them on their over-bed table, waiting to be fed while their meal gets cold. So in March '07 a letter was sent to the public freedom-of-information office requesting staffing data for a specific time frame. On April 19 we were advised that the cost would be $3,784.

In May hours of resident care per day within VIHA were published — maximum, median and minimum — but no facilities were identified. In '07 we requested the information and privacy office waive the proposed fee.

The inquiry and search for answers continued with phone calls, letters — more often than not delayed response from those contacted — until September of '07 when a news release from VIHA read: "VIHA to invest $6.5 million in increased care levels in residential care. The care will increase from an average of 2.88 to 3.24 hours to be done over a three-year period beginning October '07, complete '09."

[1325]

This should have been good news, except the level of care aimed for over the three-year period was less than some facilities were supposedly providing at the time. The frustration was then, and still is, that the Vancouver Island Health Authority's numbers simply do not put an adequate number of staff at the bedside within the residential care facilities to provide consistent quality care for our most fragile residents.

Waiting eagerly in anticipation of having their once-weekly bath, the resident is told: "Sorry, your bath is cancelled."

December 4, '08. Informed by the freedom-of-information office, the Vancouver Island Health Authority used its technical staff to create a record. Nine months later — September — VIHA released this record. The record actually purports that clients in one facility received 3.76 hours of direct care from April 1 to July 23.

Family members and others who visit said facility daily were and are acutely aware of the chronic staff shortages. So the report findings are perceived as questionable at best.

By late October '09 a decision was made not to pursue this request further, as it become evident that without ongoing or regular reports, there would be no way to track hours of care being provided to residents in the residential care facility.

The bell is still ringing and ringing as the resident sits on a toilet waiting for assistance to get off.

It is simply untenable that the Vancouver Island Health Authority cannot isolate the number of care attendants, LPNs, RNs and ancillary support workers that work month to month for each of the facilities it oversees. How do the unions know who's working where and how many hours if not receiving the information from VIHA? How do the professional associations collect their data? How does the Ministry of Health manage to capture this information to complete its records? How does VIHA manage to pay its staff?

The request made through the provincial office of freedom of information was not made lightly but to try to establish if in fact the residents were receiving the services they were paying for. Until the actual hours worked by various disciplines are made available, we will never know for sure.

After this exhaustive and disappointing five-year exercise, the following are my recommendations for this committee. Review act, chapter 165, part 2, division 1, "Time limit for responding," section 7 — that the office of the Information and Privacy Commissioner be given some power to demand a timely response from VIHA and any other at-arm's-length corporation. "Contents of response," section 8 — that if there's no intention of delivering the requested information, the reason given should not be one of game-playing semantics.

One last comment is that I fear for the state of extended health care for our frail and infirm citizens should the government be successful in pushing its privacy agenda when I read part 2, section 21 of this act.

Thank you for listening.

R. Cantelon (Chair): Thank you very much for your presentation, Ms. England. There may be some questions. Do I have questions from any of the panel members? No?

I think you've made your point very clearly. We thank you for taking the time to come and tell your story and make your recommendations.

The next witness is Glenn Hallworth. I'd ask Glenn to come forward.

Welcome, Mr. Hallworth. When you're ready to proceed, your mike is live. Carry on.

G. Hallworth: If you noticed the excessive sweating, it's not at all because I'm nervous. It's because I'm full of antidepressants. A lot of that has to do with what I'm about to share with you today and the last 11 years. We won't be able to go through all 11 years' worth, obvious-
[ Page 76 ]
ly. I know I've got ten minutes, so I'll be brief and to the point. But just to let you know that I'm not panicked. I'm very, very excited to have this opportunity, so thank you for allowing me to come and speak.

[1330]

Formally, I would like to say good afternoon to ladies and gentlemen, members of the panel. My name, as you can see, is Glenn Hallworth. I come before you today…. I could just read this, but I might just go off because you can all see what I've submitted. Hopefully, I've provided you with enough copies.

The reason I'm here is to put forward the legacy of my dear, dear grandmother. I call her Nan, and she raised me. We had 11 years of extended care experience where I was with her every day, seven days a week for 11 years, unless I had to travel for business. I've seen pretty much everything you could see. I've experienced a lot. Please feel free to contact me if you require further information.

You can see a little bit here of the history of why Nan is important to me and was as important to me as she was. She basically raised me.

When the opportunity arose to present here, I was both extremely excited but confused because I wasn't quite sure where to begin, and I had to review, since Nan just passed away in June — the same day as Michael Jackson. That Nan — she knew how to time it. I miss her terribly. There were so many things I had to review that I didn't quite know where to go.

To get to where I'm about to lead, I was wondering if I should have mentioned the time that the site manager and the social worker, who is currently the site manager, refused to look at over 100 photos that I had taken documenting fecal contamination in my dear Nan's bathroom, saying that there was no point in looking at them because you can't get sick from your own feces — that's a direct quote — and there was also no way they could prove that my photos that I had taken had been doctored or not. True.

Or the countless requests that I had made to have my grandmother be provided with access to clean, fresh drinking water. If you boarded your dog at a kennel for a two-week trip to Hawaii, for example, and came back to find that your dog did not have access to fresh drinking water, that would be on the front page of the paper. My grandmother consistently did not have access to this until the very end after an 11-year stay — unconscionable.

The irony here, one of many, is that on the bulletin board of the social worker outside of her office there's a huge, huge sign blaring that it is your duty to report abuse and neglect. It's your duty. You actually report abuse and neglect and see what happens to you. It's quite an experience, I can tell you for sure.

What I ended up — since this has to do with freedom of information — focusing on for this presentation is just a series of e-mails that I've compiled to give you a brief chronology of what happened near the very end of Nan's life with regard to not being able to access her medical records.

I basically found out, after Nan had had a Holter monitor test…. Because some of the reasonable staff knew that I have a medical background as well and I had access to her charts for the previous ten years and she was my world, they would allow me to be abreast of what her current situation was. If she had some tests, I would get the results. We would have an open dialogue.

One of these nurses…. After the Holter monitor test, I had not been given the results. I queried her, and she reviewed the results with me. While she was opening the charts she said: "And by the way, your grandmother has a pacemaker — correct?" I said: "Incorrect." This is ten years into an 11-year stay.

[1335]

Clearly, you don't have to have a medical background to know that your decision tree in treating someone who has perhaps an MI, perhaps another stroke, perhaps whatever, is very different if you think that patient has a pacemaker or doesn't have a pacemaker — fairly straightforward.

So I was quite amazed to find that there was this gross error, incredible medical negligence in my grandmother's chart. That's when I began the process of trying to quickly get…. I just wanted access to the chart so that I could just take a picture — one of my famous doctored pictures — because I knew that once they knew that I knew, there was an extremely high likelihood that that piece of the chart would be removed.

What happened when the nurse shared this information with me — the one that I really got along well with…. She just scratched out the information. But I just wanted to have documentation. So all of a sudden after ten years I wasn't allowed. I asked an LPN if I could please have access to my grandmother's chart in front of my grandmother. I was denied. She asked the RN. The RN denied her request.

I came into my grandmother's room. I find this particularly poignant. Near the bottom of the third page, after we found out that we couldn't get access to Nan's chart…. The distance between Nan's room and the nurses' station is approximately the distance from me to the front of the room that I'm in now, that we're all in.

I told Nan that she wasn't allowed to see her own chart, and she burst into tears, and she said that she had never heard of such a crazy rule and that she never had a pacemaker and wanted that documented.

She continued to spiral downward emotionally, crying, wanting to die — when she says that she wants to die, she really means she wants to die; it's quite serious — and saying how much she hated this place and asking if it was really a hospital and not a jail.

I have 11 years' worth of these types of stories. This is the one to do specifically with freedom of information.
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So I had to go through my lawyer. Basically, I was stonewalled and lied to and told that you have to follow this process — X, Y and Z. Weeks turned into months. I have information here from my lawyer, who had contacted the risk manager for VIHA, Mr. S. He was told by the site manager that I had been provided with all of the information that I needed to get the documents that I was looking for — i.e., my grandmother's charts, which I just realized I neglected to bring today, but there are basically just two thick manila envelopes about this size.

I talk about the humiliation of having to bring a suitcase to pick them up. I was told: "There are going to be so many, you don't want to ask for them all." I'll get to that point in a minute.

But anyway, meanwhile, Nan had her third stroke. That was her final stroke. She survived one month more. In the meantime, my lawyer, who has a close professional relationship with a Ms. C., who works at VIHA, informed me that she would be the one to have received any requests regarding my request and that she never received anything for months. Yet I was told consistently that everything was put in place, that the process was in motion, that everything was going in the right direction. Meanwhile, my grandmother is dying, and she died.

I didn't get her chart. I didn't get her records — I requested all 11 years — until at least two months after she died. This is wrong. There's no grey area. It's just wrong. It's beyond wrong. It's disgraceful. It's inhuman. These types of things go on all the time.

[1340]

Because I adored my grandmother so much and I miss her so much, I'm here today, and Nan's here today too. If there's any possible way that — I hope I've been under ten minutes — what I've shared with you today can help prevent even one family or family member from having to endure what we had to endure, then my under-the-wire visit here today — sweating, full of antidepressants, laughing and crying simultaneously — will have been worth it.

I thank you very much for your time. I thank you very much for including me. It's just an honour to be here, and I would like to thank my close personal friend, Mrs. Lyne England, for also being so tremendously supportive throughout the duration of our stay out there.

I'm long past the stage where I have to apologize for crying, because it's normal. She suffered enough. She was trapped in a body that wouldn't do what it wanted, what she wanted it to do. She was reliant on a group of people, some of whom — I want to get this in for the record — were outstanding and wonderful; many of whom have no business working with any living thing at all. Sadly, many of those people have risen to positions of management and authority.

Thank you for your time — and I hope you're happy that I'm here, Nan.

R. Cantelon (Chair): Well, thank you very much, Mr. Hallworth. This is a very moving story, and I appreciate how much you cared for your grandmother. They do put a personal perspective on the deliberations and put a human face on the legislative changes we make, which seem kind of abstract without these kinds of presentations, so we thank you very much for coming and telling us this. I know it must have been difficult.

Do we have any questions from any of the panel?

D. Routley (Deputy Chair): Mr. Hallworth, thank you very much for coming to present to us today and sharing your story.

I think many of us have had similar experiences personally, and certainly as MLAs we have constituents who've come through our doors who are enduring that same kind of difficulty in dealing with the care issues of their parents or grandparents. We really appreciate it on a personal level.

In terms of the purpose of the committee here, you talked about the help you got from particular nurses in the facility over the years, in having access to your nan's information and feeling abreast of it, as you said, and involved.

There have been a number of people who have talked to me as an MLA about issues of VIHA management — access to the people making decisions; that they aren't located at the sites at which people are being cared for. Do you think that distance contributed to the difficulty in you receiving information?

G. Hallworth: Absolutely, 100 percent, unequivocally no. The actual problem was with the on-site management. It was a gang mentality. I saw too much. I knew too much. I was there every day. A lot of people drop people off and come back at Christmas, and a lot of people can't do anything other than that. I was really fortunate. She was with me from infancy until the time she died at 95.5, and I know we all have to die.

Because of my medical background, I was familiar with the facility prior to Nan being admitted. Up until the very last year or so, when things really started to get tense…. I knew too much, and I was being punished for knowing too much and saying: "This is wrong. We need a solution."

So what happened…. Again, reality is perception, but there are a lot of people that know that this is what happened. They just gang up on you, pure and simple. It's just like preschool. You're bullied. You're harassed. They switch it around and say, "You're being the bully. You're harassing," when you're just looking for any angle to get your grandmother what she needs — fresh water, get her to the toilet. "She's paralyzed. She can't go herself. Could you please help her?" Again: "No."Again: "No."

[1345]

I had been given free access, because I understood her chart, for years. All of a sudden, just like in Maxwell
[ Page 78 ]
Smart, the opening credits, all the doors just came down and: "No more. If you want information, you have to follow this protocol."

Once I was put on that path, smoke and mirrors, delays, lies. Is that libellous to say? There were lies. I was lied to. My lawyer was lied to. "He has already received this information. He has everything he needs." No, he doesn't. No, he hasn't.

Meanwhile, what happens? Nan dies, and she wanted to die.

R. Cantelon (Chair): One more.

D. Routley (Deputy Chair): What sorts of changes do you see in the Freedom of Information and Protection of Privacy Act that could be made that would improve that situation?

G. Hallworth: I believe at the very end…. My kind of vague recommendation is time frames, for one. I mean, it wasn't until Nan was on the Liverpool program or whatever it's called — Liverpool pathway — that things started to kind of come to fruition and jell. But before that it was basically: "We're just going to stall and stall and stall."

The time frame is critical. If someone has an issue as serious as a documented case of her having a pacemaker…. It just boggles my mind, what's left of it, to this day. If it's that serious and a health care facility does not take that seriously and instead blocks you as a team, as a group…. "Don't let him. Don't let him." That is unconscionable. It's disgraceful, and that's what happened to us.

People need to know that they're working in a health care facility to care for…. If there's something that horribly wrong and it's brought to their attention and they not only don't care but go out of their way to prevent you from having some sort of resolution, there's something terribly wrong here. So I would recommend timeline and just common sense.

You work at a care facility. Bring some care with you, because we love these people. It's not a warehouse for people who are about to die. Nan was full of life. Her body just didn't do what she wanted it to do.

I hope that answered your question. I'm sorry if I took too much time.

R. Cantelon (Chair): Thank you very much, Mr. Hallworth. Thank you for coming.

Our next witness is Mr. Keith Reynolds, who represents the Canadian Centre for Policy Alternatives.

K. Reynolds: My name is Keith Reynolds, and I'm here today representing the Canadian Centre for Policy Alternatives, the CCPA. The Canadian Centre for Policy Alternatives has 18,000 members across Canada. I'm not even sure how many we have in British Columbia. We conduct a wide range of research in areas like social policy, labour policy, tax policy and environmental policy.

As you can imagine, much of the work that is done by our staff and by our research associates deals directly with government policy, so it won't come as any surprise to any of you that we have a very strong bias in favour of open government.

Today I am only going to be talking about the freedom-of-information provisions of the act, although I do want to make clear that we believe that the privacy provisions of the act are equally important. I want to make it clear that we believe the work you are going to be doing as a committee is going to be extremely important for the people of British Columbia.

[1350]

As you've heard before, I had the opportunity last night to listen to the presentations that were made yesterday. It's very good that you provide these on the website, because it gives people an opportunity to do so.

You've heard before that when this legislation was passed, it was thought to be among the best legislation in the world. At that time there was a lot of optimism about open government. Unfortunately, I think now the main feeling that many people would have when approaching this legislation is a feeling of cynicism.

I know a number of people who think very hard before submitting a freedom-of-information request, because they anticipate that they're starting out on a journey that's going to take them two or three years and at the end of two or three years possibly not result in any information being released.

The report that was done by your committee in 2004 would have gone a long way to restoring the effectiveness of that legislation. However, as you know, many of the provisions that were recommended by the committee didn't come forward. I'm confident that this committee is going to take the same approach to open government as the 2004 committee did. If your proposals move from that point to becoming law, I'm also confident that they'll go a long way toward eliminating the kind of cynicism that I hear when I talk to people about freedom of information today.

I also want to point out that I'm particularly pleased that one of your committee members, Mr. Bloy, was on that committee in 2004, and I'm very glad that you're on this committee today, sir, because you will be able to share the experience that you had that led to a report that I think really strongly pushed for open government.

Now, we've written a fairly extensive submission to you. It contains a lot of recommendations, and it's really too long for me to go into in the time that I have allocated. I know that you will be looking at all of these submissions and all of the recommendations and that between you and your staff, they will all be given very serious consideration.
[ Page 79 ]

What I'd like to do instead today is share with you some examples of the kinds of issues that have occurred with CCPA research associates with the freedom-of-information provisions and then, arising from those examples, talk to you about some broad issues that arise.

Let me talk about three specific examples. Let me start with the Vancouver Island Public Interest Research Group, who in 2004 initiated a request to the welfare ministry asking for information about the number of people affected by the changes to the welfare time limits.

The announcement was made that 339 people would be affected, and the request was: how did you come up with that number of 339 people? That request was in February 2004. The ministry at the time responded that it had no such records and transferred the information to the Ministry of Finance and to the Office of the Premier. In June 2004 the Office of the Premier released severed communications notes that had been prepared for the minister.

In July 2004 the Vancouver Island Public Interest Research Group initiated a complaint with the Information Commissioner, asking him to find that the ministry had not committed an adequate search. That was July 2004.

In June 2005 the commissioner's office found that, in fact, the July 2004 complaint was justified and that the ministry had repeatedly breached its duty. That was June 2005. The ministry then acknowledged that it had more information but said that it was withholding the information under section 13, advice to government.

Finally, in January 2006 the ministry released a thousand pages of documents to the applicant, including those that had previously been withheld under section 13. Time frame: February 2004 to January 2006.

In July 2006 the Vancouver Trade Union Research Bureau submitted an access-to-information request regarding changes to employment standards enforcement records for vulnerable farmworkers. These were reduced minimum standards and a reduction in the compliance team. That was July 2006. A request was submitted to the employment standards branch.

In September 2006 the branch took a 30-day extension, which is standard procedure. In November 2006 the branch issued a fee demand of $4,200. The applicant requested a fee waiver and was denied. The applicant then went to the Office of the Information and Privacy Commissioner, asking for the fees to be waived in the public interest. That request went to the Information and Privacy Commissioner's office in November 2006.

In September 2007 the issue went to a formal inquiry, and in June 2009 the commission ruled in favour of the fee waiver. The branch then immediately challenged the decision of the Information and Privacy Commissioner and asked for a review.

[1355]

In July 2009 the Trade Union Research Bureau published an op-ed on what was happening to them in the Vancouver Sun. That is included in the brief that I have given you. The challenge and the demand for reconsideration was immediately withdrawn, and the branch said that they would provide the information. They then went to the Information and Privacy Commissioner and asked for a further extension of 120 working days to find and prepare the documents.

The request went forward about the treatment of some of the most vulnerable workers in British Columbia in July 2006. The Trade Union Research Bureau, although they have not received it yet, expect to receive the information this month.

Finally, a case that I was involved in regarding public-private partnerships. I was seeking information that would allow me to compare the nominal cost of a public-private partnership as compared to the nominal cost of doing the project publicly — in other words, the public sector comparator information as opposed to the project information, but looking at real nominal costs rather than — without getting, hopefully, too complicated about this — the net-present-value issues.

I made that first request to Partnerships B.C. in March of 2007. In this particular request I was looking at the Kicking Horse Canyon project. In April 2007 Partnerships B.C. transferred the file to the Ministry of Transportation. In July 2007 the Ministry of Transportation transferred the file back to Partnerships B.C.

I then spent the next six months trying to get someone to take responsibility for the request. No one did, and the Information and Privacy Commissioner's office was also unable to get anyone to take responsibility for that file. That file simply withered.

In October 2007 I submitted another request along similar lines using very specific language, because one of things that I have found with freedom-of-information requests is that you have to use exactly, precisely the right language. If you don't use exactly, precisely the right language, frequently they will tell you that they don't have anything responsive.

Two years then passed involving two extensions taken by Partnerships B.C. — an appeal over severing and search going to the Information Commissioner. Finally, on the 11th of December, 2009 — now, remember, this original request for this information had gone to Partnerships B.C. and the Ministry of Transportation in March 2007 — the Office of the Information and Privacy Commissioner sent me an e-mail saying that they had talked to Partnerships B.C. and believed they really didn't have the information and suggested I submit a new request to the Ministry of Transportation.

I was really interested to hear the people who spoke before me talking about their cases, because this was exactly the kind of thing that we're talking about here — these massive delays.
[ Page 80 ]

That brings me to, I think, my first and perhaps most important issue that I want to talk to you about today, and that is delay. As the commissioner said in his last report: "Access delayed is often effectively access denied, and the inability of citizens to exercise their rights to information under the Freedom of Information and Protection of Privacy Act in a timely way was cause for grave concern."

Now, the commissioner reported that public bodies were late in meeting their obligations in nearly a third of cases. As you heard yesterday from the Freedom of Information and Privacy Association, if you take out cases involving personal information and deal only with more broadly stated policy issues, in fact it's more like 50 percent.

Now, as you've seen, that only deals with meeting the specific timelines of the 30 days in the 30 days. That's just the tip of the iceberg, because once an appeal goes to the Information and Privacy Commissioner's office, you can be in for delays for years.

Part of the problem here lies with the refusal of public bodies to live up to the legislation, and part of the problem is also the resources. If public bodies are consistently and persistently refusing to meet legislative timelines, it is because they have made a decision to do so. Either they don't provide sufficient resources to do so, or they simply don't let the information go forward.

Why do they do that? I believe it is because there are absolutely no consequences for public bodies that make that choice. We know from looking at the history of what has happened with the legislation and we know from the stories that you heard before today that some of the public bodies are simply not taking the legislation seriously.

[1400]

That's why we have recommended that there be financial penalties for failing to meet deadlines and for failing to meet the duty to assist applicants. We believe the financial penalties should be high enough that they become significant for the public bodies.

We also have recommended that those penalties should be directed to the Office of the Information Commissioner and not back to general revenues. The reason we have done that is because this would help them in meeting their backlog of information.

The OIPC simply does not have the resources to do their inquiries in the 90 days that was originally stipulated in the legislation. We would recommend further that you call, in your report, for more resources to be directed to the Office of the Information Commissioner — but more than that, that you ask the Information Commissioner for a specific plan as to how he is going to eliminate the backlog of appeals that he currently has to deal with.

There's one specific that I would like to cite in our report, and that is that we would suggest an expedited process for reviews on fee waivers. When there is an application for fees to be waived in the public interest, it is either in the public interest or it isn't. I think it's unconscionable to have to wait two, three or four years for a decision to finally be made that something is in the public interest.

There are expedited processes now for dealing with the issue of deemed refusal, and I would recommend and we would recommend the creation of an expedited process to deal with requests for fee waivers.

The second major issue I'd like to talk about today is the incremental undermining of the legislation. You heard a lot about this yesterday again from the Freedom of Information and Privacy Association. You will also have read about this in your committee's report from 2004, which particularly addressed section 13, the advice section of the legislation, and talked even at that time about how it had been drastically undermined from the intention of the original framers.

Section 12, cabinet-based material, falls under the same situation in that there's clearly there in that clause material that is available for release without revealing the internal workings of cabinet. Yet that has now been interpreted to basically eliminate almost anything. Not only that, but the most recent interpretation we had from the Information Commissioner's office was that it also included material that might have gone into creating other documents to go to cabinet. So I'm just not quite sure how far that section has gone and whether or not there is any power left in section 12 to release information.

Again, section 25 says that information is supposed to be released in the public interest. But it, too, has fallen victim to interpretations that time after time have undermined the effectiveness of this legislation.

One further matter that I think has significantly changed the definition of public bodies in British Columbia. A Supreme Court decision in October — I believe, again, you heard about this yesterday — ruled that private companies set up by public bodies are not covered under the freedom-of-information legislation. This creates a situation where every public body in the province, should they choose to do so, can now avoid freedom-of-information provisions by simply creating a private company which they control.

The 2004 review made specific suggestions to restore the authority of section 13. You made suggestions with respect to section 12. I urge you to make those recommendations again, but I also think you need to look at other clauses where the authority of the act to provide open government for the people of British Columbia has been seriously undermined.

The third major issue I want to talk about is the growing role of private corporations in the delivery of public services in British Columbia. This is what your review committee had to say in 2004.

"Another contemporary trend over the past decade involves the administrative restructuring of the public sector. Like other juris-
[ Page 81 ]
dictions inside and outside Canada, the government of British Columbia is pursuing alternative means of delivering certain services to the public, often by transferring public sector functions to private sector companies. Alasdair Roberts, a Canadian academic expert in access to information matters, has described this trend as the growth of shadow government."

This is from the committee's report in 2004.

Although your committee raised that concern in 2004, at that time the committee declined to act on the issue. With the growth of shadow government going much further, I think the time has come to act now.

[1405]

There is now $10 billion worth of public-private partnerships being operated in British Columbia, and there are hundreds of millions of dollars more in contracts, like the contracts for the management of public health information by private companies for the government.

Simply put, we propose that if a private company is using tax dollars to deliver a public service, they should be subject to the same rules as the public body delivering the service. Any information surrounding that service — and that would include issues like contracts, turnover rates and, in the case of private companies delivering extended care services, the kind of information that was previously discussed about service to those clients — should be public.

Now, if you decide….

R. Cantelon (Chair): Mr. Reynolds, I just want to interject and urge you to wrap up so that we certainly have time for questions. I know we'll have questions.

K. Reynolds: I have about one more minute.

I just want to suggest that if you're not prepared to go that far, I would hope you would look at what the government of Scotland is doing. They have actually started a public consultation process to look at the possibility of extending their freedom-of-information provisions to private companies delivering those public services.

I guess, quickly, to conclude. Again, you heard from the Freedom of Information and Privacy Association yesterday that the use of the act was declining and was declining significantly. It's not because people no longer have an interest in public policy; it's because, I think, they've become very cynical about what the likelihood is that they're going to get the information and certainly that they will get the information in a time frame that will allow them to make any use for it.

As I said at the beginning, you've got very important work to do. I believe that you have the potential to issue a report that will restore the public's confidence in the open-government process. I very much appreciate the opportunity to be with you today and make this presentation.

R. Cantelon (Chair): Thank you very much. We have received a very thoughtful and well-presented, well-prepared brief, and I want to assure you that we'll go through it clause by clause, as your recommendations apply clause by clause. It will receive full consideration of this committee.

D. Routley (Deputy Chair): Thank you, Mr. Reynolds, for the presentation. You speak of information not arriving in a timely manner — in time for people to make democratic use of it, to add a word to what you said there. I think there's an example locally of this with the public-private partnership that's being proposed for sewage treatment in the Victoria area.

There's a high degree of political contention around the issue of the use of private contractors to deliver that service. Do you see this being one of those cases where the information on the cost of the project might be too late in coming, given the Freedom of Information Act as it stands?

If you agree with that, how would you change the act in order to remedy and provide information on a project like that within a time frame that people can actually make use of in deciding what is best for them as a community?

K. Reynolds: I very much agree with what you have to say. The other example that we had, which I talked about, was the Trade Union Research Bureau's material. It was requested in 2006. It might have been of interest in the provincial election, but the information is not going to be released until February 2010.

What I've recommended is that there be real consequences for public bodies that fail to meet their obligations under the legislation and that if they don't meet the legislative timelines, there be financial penalties. I've made a specific recommendation that there be an expedited process for the fee waiver process, because that is particularly troublesome.

Beyond that, the other thing that's going to happen is that something is going to have to be done to assist the Office of the Information Commissioner in dealing with their backlog of reviews, because we now have a situation where things can simply go on for two, three and four years.

If all of those things were done — if there were consequences, if there were sufficient resources — I think we could begin to see some of these things starting to meet reasonable timelines.

R. Cantelon (Chair): I'm going to move ahead, Douglas, if you don't mind. I have three other speakers. I'll come back to you. We're already passed the allotted time, and I'm sensitive to other people waiting.

D. Horne: Mr. Reynolds, I enjoyed your presentation.

[1410]

One of the things I'd like to explore more is your thoughts on …. At the beginning of our meeting today
[ Page 82 ]
there was some discussion, as well, about arm's-length bodies but bodies that receive considerable amounts of their funding through government or basically through government-subsidized programs.

I would wonder, from your standpoint, where you would draw the line or what your thoughts were on that. You were talking within your presentation about including government contracts to private corporations in order to provide services to the public bodies.

Obviously, the other group that gets a significant amount of money through the Crown and its employees is public sector unions, and I'm just wondering what your thoughts are there with freedom of information and access to the public sector unions and the information that they hold.

K. Reynolds: I think you're talking about a completely apples-and-oranges situation. Public sector unions don't receive money directly from the government to deliver a service for the government as compared to a corporation like, I guess, Maximus or a number of others that are given directly taxpayers' money for the delivery of a public service. I'm sorry. I don't see the connection.

D. Horne: All of union dues are tax-deductible, so it's basically government money.

K. Reynolds: Even I wouldn't go so far as to suggest that every institution that received a tax deduction should be open to freedom of information.

D. Horne: Okay. So that's where you draw the line.

K. Reynolds: Yeah.

J. Kwan: Just following on that, I think, to be clear, your suggestion is that public institutions — and in some cases private institutions that receive government grant moneys to deliver service to community members or to the community — be subject to freedom of information. Am I understanding that correctly?

K. Reynolds: I think that this needs, obviously, more study than what I have presented. But I think, for example, there should be some reasonable level of financial resources involved. Smaller contracts, I think, would probably end up being more of a problem than they would be a benefit. Again, I'm not sure where that would be.

Yes, I think that if private bodies are receiving taxpayers' money to deliver a service, then the information around that service…. Again, I want to make clear that in the case of corporations I'm not looking for all of their tax records about everything that they do. I'm simply talking about information that directly relates to the service being delivered. That should be accessible under freedom of information.

J. Kwan: It's actually interesting. A case in point yesterday was highlighted and brought to our attention that SFU, in fact, as a public institution, has set up a private corporation, and things which they set up through that private corporation within that public institution are not subject to freedom of information. It raises the issues about what is in that private corporation that should not be subject to the public's access related to that information.

K. Reynolds: There are other jurisdictions — the U.K., for example, and, I believe, one American state, whose name I forget — that specifically have in their freedom-of-information legislation that if a private company is substantially controlled or owned by the public body, it is considered within the definition of a public body. I think that's a clear case where that would need to be the case.

E. Foster: Mr. Chair, my question was answered. Thank you. Or it was asked. It wasn't answered.

R. Cantelon (Chair): Thank you. Then the last question to Doug Routley.

D. Routley (Deputy Chair): It's been said that a public dollar is a public dollar is a public dollar no matter how many doors we pass it through. So if we're seeing services that were provided by the public through their government contracted to private corporations, is that the circumstance you're trying to identify — that in those cases we should have the same access to that information as we would had the public body kept delivering the service?

If that is what you're suggesting, then how do we adjust the third-party privacy issues in the privacy protection act to reflect that access?

K. Reynolds: Yes, that's exactly what I'm saying, but I again emphasize: only the information that deals with the contract, obviously not opening up the entire corporation and all of their information to access to information. Yes, there would probably require some amendment to the third-party provisions.

[1415]

Again, this is not something that's completely out of the blue. The government of Scotland has chosen to make a very serious examination of this issue and, I think, is moving toward some sort of provisions that will make that happen.

If this committee were to recommend it and it were to happen, it would make this certainly the strongest freedom-of-information legislation in North America. Were you to even recommend the public consultation, I think we'd have some very interesting discussions in British Columbia about what the people of British Columbia thought was possible and necessary.
[ Page 83 ]

R. Cantelon (Chair): Katrine Conroy has a brief question.

K. Conroy: It's very quick. If you could let us know sometime, Mr. Reynolds, if there are actual public bodies in other jurisdictions that are developing private corporations. If you could let us know which jurisdictions those are so that we could actually see that legislation and get an example of it. If you could find out and let the Clerk know, that would be most helpful.

K. Reynolds: I know of two jurisdictions where private companies owned by public bodies are now covered under the legislation, but the only jurisdiction that I'm aware of where this issue of private companies delivering services is being examined is Scotland, and that process has just started.

R. Cantelon (Chair): I'd appreciate it, then. I know the panel has interest in what's happening in Scotland. I appreciate they haven't come to any conclusions yet. They're just beginning the process, but their terms of reference for approaching that would at least be useful to us.

I appreciate your presentation, and I want to assure you we'll give a fulsome consideration to your many recommendations. Thank you very much for coming, Mr. Reynolds.

K. Reynolds: To all of you, I'm grateful for the opportunity to be here today.

R. Cantelon (Chair): We now have a presentation from the University of Victoria, the Environmental Law Centre. I understand Mr. Morgan Blakley will be making a presentation.

As soon as you're ready, Mr. Blakley, the floor is yours.

M. Blakley: Good afternoon. I'm presenting on behalf of the Dogwood Initiative, through the ELC. These oral submissions highlight key issues identified and discussed in the written submissions before you. They'd take far too long to go through in this brief time.

I think there are two linked promises captured in sections 2 and 6 of the act. They promise not only an open and accountable government, but a government that in good faith desires to be open and accountable.

These promises have not been honoured. The act has been weakened by broad interpretations of access-restricting clauses and narrow interpretations of the duty to assist and the idea of the public interest. Public bodies have consistently failed to deliver timely access to documents. On average, they are illegally slow 29 percent of the time.

Fee estimates have stopped citizens groups from accessing information or pursuing important matters. In one case, fee estimates seemingly were used to retaliate against a group for exercising its right to appeal a fee waiver decision.

The combination of these and other factors has led to a significant decline in the use of the act and to scepticism as to the act's effectiveness as a tool for accountability.

If you turn to page 2, I've laid out the main legitimate extensions available under the act.

The act initially stipulates a 30-day time frame for responding to access requests. This time frame is subject to numerous extensions, as I'm sure you're aware. Under section 10(1) a public body can give itself a 30-day extension. Under section 2 a public body can ask the commissioner for an extension. If the request needs to be transferred between public bodies, there is a total of 50 extra days — 20 days to consider whether to transfer and 30 days for the new public body to respond to the applicant.

If the requested information could jeopardize the interests of a third party, the public body has 30 days to decide whether to release the documents. Upon having receipt of the intention to release, the third party has 20 days to decide whether to appeal the release.

If a fee is required, the time is extended until any of: the fee is paid, a deposit is paid or the fee is waived. If an applicant appeals a fee waiver decision, the time is extended by the duration of the appeal process.

[1420]

If a public body asks the commissioner to disregard a request under section 43, which is for "frivolous or vexatious" requests, the time frame is extended for the length of time required for the commissioner to decide the issue.

For example, a public body can give itself a 30-day extension. Then the commissioner could grant an extra extension — perhaps 60 days. I hear that's normal. The public body estimates a fee that can't be paid by the applicant. So the citizen or other applicant asks for a waiver, which could then be denied. The citizen then appeals to the commissioner who, one year later, perhaps rules in their favour. The public body can then appeal to the Supreme Court and later to the Court of Appeal, and five years after the initial request is made the citizen might get access to some of the record.

With all these legal extensions, it seems odd that in 2008, 47 percent of requests made by public interest groups, the media and political parties were illegally slow. Those are the three groups that are probably the most important for maintaining government accountability.

As will be shown below, the overall 2008 data appear consistent with most years where CRTS data is available.

The act is meant to ensure that government is open and accountable. As such, the act should be an excellent tool for accessing records that public bodies are reluctant to release. Three examples show that this is not
[ Page 84 ]
the case. Two of the three cases are described on pages 3 and 4.

The first case. In December of 2004 the Freedom of Information and Privacy Association made a request to view a 600-plus page contract between the government of British Columbia and IBM. In 2005 IBM complained about the potential release. Subsequently the government refused to release any of the contract.

In July of 2008 — so this is going on three or four years — the commissioner demanded the release of the documents. The government then appealed to the courts. In December of 2009, five years later, the British Columbia Supreme Court ordered part of the contract released.

On January 11, 2010, a heavily censored version of the contract was handed over — five years, and they've received, very heavily censored, some of a contract between the government and IBM.

Another example. This one you've already heard. This pertained to a researcher in 2006 requesting information. Basically, he wanted the release of employment standards enforcement records. This case you've just heard in the presentation before me.

After going on…. It took basically three years before the ministry finally handed over the documents, and that's only because the media made an issue out of it.

Yet another example. The Raincoast Conservation Society's attempt to access grizzly kill data. This isn't exactly a top secret government issue. These documents took over five years to get, from April 10, 2000, until April 27, 2005.

Since the time limits are on hold throughout the review and appeal processes — you can see, for example, section 59(2) — none of these cases are necessarily in the illegally late category. It can be legal for an access request to take five years. Considering this, it's frightening to think that almost half of the requests filed by, again, public interest groups, the media and political parties are still illegally slow.

While it would be nice if the 2008 data was anomalous, it appears consistent with both short- and long-term trends.

On page 6 you will see chart 1 time frames. These data illustrate the regularity of government's failure to respond in an adequate time frame, as what the chart shows is the number of days on the left. And then over…. This is a short-term quarterly analysis from April '04 to June 2009. There's very little change. It's fairly consistent — the speeds at which they're working at.

Between 2004 and 2009 there's been a consistent failure by the government to respond in a timely manner. There's been no improvement in response time in the last five years.

These data show that the 3,475 timely requests took an average of 16.8 working days, which is 23 calendar days. The 2,459 delayed requests took an average of 43 working days, or 60 calendar days. Perhaps most egregiously, the 2,119 seriously delayed requests took an average of 125 working days. This is 175 calendar days, 5.8 months or half a year.

That's the average. So that's not necessarily the longest ones. It's straight in the middle. This is nowhere near the 30 days the act initially stipulates.

[1425]

Also, on page 6 there's chart 2 — real time. This provides a long-term analysis. You can see that response times have in fact increased between 1996 and the present. As you will recall from the last presentation, the numbers of requests has declined significantly over that time.

The two lines distinguish between calendar days — which is the lighter line, the one on the top — and working days — the darker line on the bottom. In 2002, which is where they split, the act was amended to change the definition of a day from a calendar day to a working day. If you look at the actual time frames, they've just continued to rise.

With regard to delays, it is important to highlight, again, that political parties, the media and public interest groups appear to be being targeted by public bodies. Looking on page 7, chart 3, you can see that there's an approximately 20 percent increase in the percentage of illegally slow requests for these three groups. So on the left of that chart that would be 100 percent on time, with zero of course being none received on time.

Other public bodies' requests are made on time 94 percent of the time. Most other government institutions, businesses, researchers, individuals, law firms have their requests met approximately 75 percent of the time, and then it drops down to just over 50 percent for those three groups.

I now want to switch gears and focus on the issue of fees and waivers. This section begins on page 12. Fees and waivers should seek to balance a user-pay system with the need for public access to government records. It appears that public bodies are sometimes using high fee estimates to stonewall access to records. There needs to be mandatory language put in place to stop any real or apparent use of fees to inhibit access to important records.

While the current regulations provide a framework for fee estimates, the discretionary language in the legislation gives public bodies too much room to use fees to stop the release of documents.

On page 12 there's a list or a few examples of how fee estimates can stop access to records. For the first example, on June 29, 2004, the Sierra Legal Defence Fund requested information about a forest development plan. The Ministry of Forests provided a fee estimate of $4,020 and demanded a deposit of $2,010. The client could neither afford the fee nor wait for a fee waiver, so the matter was not pursued.

Now this, as I'll show later, is important to the issue of routinely releasable documents because the equivalent
[ Page 85 ]
of a forest development plan used to be free and routinely releasable.

In the fall of 2001 the Dogwood Initiative sought documents relating to logging on first nations territories. Despite the existence of a digital database the Ministry of Forests demanded up to $9,000 to proceed.

On August 3, 2004, an environmental association submitted three FOI requests for data pertaining to sea lice infestations. The information, privacy and records branch provided a fee estimate of $19,470. The branch denied a public interest fee waiver.

On March 3, 2004, the Sierra Defence Fund was given a fee estimate of $24,600 for the search time and reproduction expenses related to a request for non-compliance records under the Waste Management Act. The ministry requested a deposit of $12,030. After disputing the $24,600 fee estimate, the ministry's fee estimate shot up to $172,947.50 — a seven-fold increase, perhaps because of the appeal.

The FOIPPA report card that the Ministry of Environment had agreed to create in 2008 was supposed to detail its fee estimates and the waivers granted. However, the only report card I could find or access was the Office of the Information and Privacy Commissioner's timeliness report. It does not document fee estimates or fee waivers, and it seems very difficult if not impossible for the public to access that information.

Another fee issue that I would like to address is the issue of electronic records. This section begins on page 13. Currently the regulations under the act allow public bodies to charge almost $1,000 per hour for mainframe access. This doesn't include printing or copying costs, nor does it include the regulations-imposed $30-an-hour fee for developing the program used to produce records from the database.

This is a very odd charge. A public body shouldn't be able to charge an information requester for the cost of organizing government files in a useful and retrievable form, yet this is what the fee appears to be doing.

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Public bodies can charge FOI users for the cost of using a records production system that the government is almost certainly already using.

Perhaps the most important fee issue is under subsection 75(5). This section begins on page 14. Subsection 75(5) provides public bodies the power to waive fees for matters in the public interest. It appears that public bodies are interpreting this clause very restrictively and waiving fees only in the most certain of certain circumstances.

For example, the Shawnigan Lake Watershed Watch group was told that their issue did not concern enough of the total population of British Columbia to be in the public interest. The government argued that the 8,500 people who drew their drinking water from the lake were an insufficient number to constitute the public interest.

The commissioner eventually ordered a partial fee waiver on public interest grounds and a full fee waiver because the group could not afford the fees. This case should never have gone to the commissioner. Potable drinking water for a community of 8,500 people is clearly in the public interest.

The last issue I'd like to address is that of routinely releasable documents. This section begins at page 18. There needs to be a better system in place for routinely releasable documents, including publication requirements where appropriate. The relationship between the act and routinely releasable documents is a complete grey area. While section 71 provides some vague guidance, it's completely insufficient. In the last ten years it has barely been used by public bodies.

Section 6 of the act requires that public bodies make every reasonable effort to assist applicants and to respond openly and without delay. A legislated routinely releasable document system would go great lengths towards this requirement.

Section 2 of the act holds out a promise for an open and accountable government. A routinely releasable document system would greatly facilitate this endeavour. The duty to assist and the desire for open and accountable government will be greatly promoted by incorporating such a system.

The U.S. and U.K. legislation provides working templates from which our system could be developed. A routinely releasable document system would ensure that the public and government know what documents are available without a formal request and where to find them. It would establish a uniform framework from which all interested parties could work without confusion.

I have provided highlights from the written submissions I've given you. These illustrate that the act has been rendered impotent and argue that reform is needed. The inexcusably long delays, apparent targeting of certain groups, high fee estimates and interpretations favouring government secrecy have created skepticism about the value of this legislation and even of presenting at these proceedings.

There's been a marked decline in the use of the act, and without forceful changes, the decline will likely continue. The chart on page 8 graphically illustrates the number of requests made under the act between 1995 and 2008. It speaks clearly to the need for strong reform.

R. Cantelon (Chair): Thank you, Mr. Blakley. I assure you that this Chair and this committee will give full and serious consideration to all your recommendations and put them forward in as strong terms as we can. I can give you at least that reassurance.

Now, any questions to the presenter?

H. Bloy: Thank you for your presentation. Do you believe that any fee should be charged? When you talk
[ Page 86 ]
about the Sierra defence fund, it's a $100 million non-profit corporation. Should they not pay?

M. Blakley: Well, I think, if I'm not mistaken, that the Sierra Legal Defence Fund would be working for a client who probably does not have $100 million. I think that a reasonable user-pays approach is appropriate. In the recommendations I've suggested some ways that, basically, the capacity of the person applying for a request can be matched with the appropriate fee estimates.

H. Bloy: But the Sierra Legal Defence Fund is part of the Sierra wilderness — I can't remember their legal name — are they not?

M. Blakley: I don't know.

A Voice: They're separate organizations.

M. Blakley: They're separate.

J. Kwan: Thanks very much. Yesterday we actually had some discussions from some presenters who talked about routine release of documents, and some jurisdictions have actually adopted that just to get the information out for the purpose of access to information and removing barriers. A lot of people actually raised the issue around the cost and the timelines, and certainly there's a consistent theme, I think, that's emerged with the hearings here.

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I'm just trying to get a sense, in terms of the scope of the access to information that would be categorized as routine information. I wonder if you can give us some examples of what you thought those might be.

You know, the presenter has now gone. Earlier, Keith Reynolds…. As I was thinking about his presentation…. I'm thinking, in the case of P3s, for example, wouldn't it be useful for regional districts…? In the case of Victoria and the district here, where the Victoria sewage system is being contemplated to go into a P3 model, wouldn't it be useful for the public, for example, to have an idea what the costs are for the project under different models beforehand and for the regional district, then, to make that decision of how to procure for that project?

Would that be an appropriate example of information that should be routinely released to the public? So not only would the regional district know, but rather the public would know. The public would be in the know. That's just one example that comes to mind.

I'm just wondering, from your perspective, if you have some examples of what you might deem to be important information that should be routinely released.

M. Blakley: The one that pops into my head off the bat is forest development plans, for example, which used to be routinely releasable. Before the act, there were routinely releasable systems with various ministries. You could implement the same sort of structure again.

The U.S. is one of the…. Part of their system is that if two requests for the same document are made, it's considered released. They have to provide it, basically, in an electronic reading room, for example.

Another option would be to routinely release some of the information that's excluded from section 13(1). So if section 13(2) provides a list of various things that can't be excluded by reason of section 13(1), you could perhaps base off of that. If you wanted a much more in-depth analysis, I think if you looked to the U.K. legislation, they have a very in-depth system on what's released, how it's released, the organizational structure for that.

D. Routley (Deputy Chair): We heard from a number of presenters, including Rob Botterell, one of the lawyers who wrote the legislation in 1992, that fees were never meant to be an obstacle — in fact, were never envisioned as becoming an obstacle. Unfortunately, he agrees with you that fees have become a major barrier to access of information.

Then we heard also from FIPA B.C., who suggested that penalties to the public bodies and also the elimination of fees or a very, very low fee structure would encourage the public bodies to adopt more modern and efficient records management systems. Would you agree with that?

Also, to pick up on your point around electronic reading rooms. The Obama administration has decreed that federal agencies will publish their data on line in an open format that can be "retrieved, downloaded, indexed and searched by commonly used web search applications." They've given timelines for this to occur — government webpages created within 60 days, the publication of three high-value data sets on line within 45 days and the publication of a plan on improving transparency within 120 days.

Would you recommend that this committee adopt that approach? I would also observe that those are occurring in less time than a simple freedom-of-information request is satisfied in this province.

M. Blakley: With regard to the second issue…. Without doing a lot of research, I'd say yes. That sounds excellent. From what I'm aware of how FOI requests are handled now, basically the government has a centralized mainframe from which different ministries or sub-branches can access various sections of that. In theory, having 120 days to merely formalize that with an external sort of watch system so that the public can't access documents that they're not supposed to seems like, yeah, more than reasonable.

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[ Page 87 ]

D. Routley (Deputy Chair): One of the things that you pointed out was that it's almost impossible for us to get the information of just how many fees have been waived or how many public interest waivers have been refused.

Another aspect of the Obama approach in the United States is that they will be creating an open-governance dashboard and, in a sense, an ongoing measurement of performance. Have you given any thought to that?

M. Blakley: That's supposed to be happening. Well, I should say that's sort of happening. The Office of the Information and Privacy Commissioner is supposed to annually now report on performance under the corporate request tracking system. It was my impression that that was supposed to include fee estimates, fee waivers. The 2008 report, which is their first attempt, only includes timelines, but it's an excellent template. And yeah, I think that having all the CRTS information publicly available would be excellent.

K. Conroy: Fees seem to be the big issue. We kept hearing that yesterday, we kept hearing that again today, and then you presented an interesting formula.

One of the presenters yesterday suggested that just to make it so that it is accessible, everybody pay a flat fee of $25 and then whatever you have to pay additionally for copies. You'd get charged for photocopies if you had copies. That way it would be accessible to everyone. What do you think about that?

M. Blakley: That seems like a fairly reasonable way to go about it, but if it's $25 fees for access…. For example, right now you have about a thousand dollars an hour mainframe fee — right? — so if you want to access the mainframe, it's going to cost you $990 an hour.

If someone like the Sierra Legal Defence or maybe even some citizen is interested in an issue, if they just pay the $25 flat-rate fee, I think there'd be an issue of them: "I'm going to download the whole mainframe for $25 and not copy anything." So I don't know, if you're going to a digitalized system, that that would be effective. You may be able to work around it, but that's my initial worry about that.

G. Gentner: Very informative and provocative paper, and I thank you, Morgan Blakley. Interesting language — the illegal delays. I'm intrigued with your recommendations, and I haven't read them all, but penalties….

We heard from Keith Reynolds before you about some punitive needs — that of financial — but the rhetoric is almost that of wilful negligence. Is this somewhat of a criminal matter? How do we beef up the legislation to make sure that government complies with the law?

M. Blakley: One of the…. Now, I'm not sure if you're looking at the summary of recommendations or the section-by-section recommendations.

G. Gentner: Section by section.

M. Blakley: One of the recommendations there is to have access responses included on a public servant's job evaluations so that a public servant who is responsible…. For all the public servants responsible for FOI request administration, which is usually a group in each ministry, their job evaluations will take into account how often they meet their legal requirements and how often they don't. That seemed like one way of at least encouraging timely access. The issue of having, basically, penalties for failing to meet access would be another one.

But I think it would be very difficult to force government to act in its legal time frames if…. You know, it's the government. At the end of the day, unless you have an independent and well-funded Office of the Information and Privacy Commissioner, I don't know that adding these recommendations is going to go a long way unless they're automatic.

G. Gentner: Just quickly, if we're looking at punitive measures that are fine-based, if you will — based on those types of penalties — there's almost like a built-in fee to do business to delay. I'm just wondering, under section 25: what is the liability to the public board then?

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M. Blakley: Which section? Where are you at?

G. Gentner: I'm talking about: where does liability actually lead in all this neglect? I mean, who or what body should be responsible?

M. Blakley: That's a hard question to answer. I think that's kind of like asking who's responsible in a corporate structure. Perhaps the corporate liability framework used in the Criminal Code, or something, would provide a template for that.

G. Gentner: Okay, I get you.

Just to the committee members, the terms of reference. One of our four points is to also retain such personnel as required to assist the committee. I would recommend, as a contract to be let out, that this gentleman should certainly be recommended.

R. Cantelon (Chair): The Chair will take that under consideration.

J. Kwan: I think I heard you say in your presentation about electronic access and fees. Something about close to a thousand dollars….
[ Page 88 ]

M. Blakley: Yeah, it's $16.50 a minute times 60, which is $990 an hour for mainframe access. That includes all peripheral equipment. If you're working off of a slow computer, for example, or the person accessing the mainframe for you is on a slow computer, or there's a lot of network traffic that's not taken into account…. Yeah, it's a lot of money.

J. Kwan: Can you tell me: where does it say in the act that would allow for these kind of charges?

M. Blakley: It's in the regulations. It's not in the act. I might be able to tell you.

J. Kwan: It's $990 an hour.

M. Blakley: Yeah, it's under the Freedom of Information and Protection of Privacy regulations, section 1. It's that public bodies are allowed to charge $16.50 per minute for central mainframe and all locally attached devices. So I would really hope that they're not printing off of locally attached devices. If you're printing at 30 pages a minute and you're being charged $990 an hour and being charged for the printing costs and for the program costs, and then….

J. Kwan: When did that regulation come into force?

M. Blakley: I am not sure. I'd have to go look. I don't have the regulations on me right now. But the Queen's press will have it.

J. Kwan: Right. I'd be interested in getting that information.

R. Cantelon (Chair): Please forward to the committee any other recommendations pertinent to those questions you had. We'll make sure it's circulated to all members, Jenny.

J. Kwan: Mr. Chair, it would be interesting to also see if we can get a sense from the Privacy Commissioner's office to see how often this charge is applied.

M. Blakley: I believe he has all he received, at least from the Ministry of Environment and the Ministry of Forests. He's recently received a compilation of their corporate request tracking system files, and I think those did in fact include basically all their requests and what they estimated the fees were in actual final fees. If you can get those from the…. I suspect the office has them, and you should be able to access them.

J. Kwan: I'd be very interested in that and then to extrapolate from that how many requests are not followed up. I mean, that is just shocking — to have those kind of charges. That will very clearly create problems.

R. Cantelon (Chair): We will have later, if I may interject, the representative from the office. You can direct those questions directly to them.

J. Kwan: Well, no. Actually, Mr. Chair, I would prefer this. As we're going through the proceedings, we're hearing this kind of information coming forward. We know that the office is going to come. I would like the committee to put forward the list of questions.

Perhaps the office could come prepared and provide the answers for us, so that we're not just asking those questions again and that by the time we get to deliberation and discussion, at that meeting we actually have the information going forward, which may generate further questions down the road if we're really going to get to the bottom and try to address some of these issues of barriers to access.

R. Cantelon (Chair): A good suggestion. I've referred that to the Clerk, and we'll get those questions coming forward.

D. Horne: I just had a question, because obviously…. I thank you for your presentation. I think it was obviously well researched and very well done. Obviously, you know a lot about this issue.

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One of the things that seems to be a recurring theme in some of the discussions we've had over the last couple of days has to do with some of the files that are taking considerable lengths of time in order to deal with.

One of the things that I've noticed is that…. Obviously, the IBM case, as an example, deals with third parties. One of the things with this act is that it's the Freedom of Information Act but also the Protection of Privacy Act and the protection of third-party information controlled by the government and in dealing with government.

I'd be interested in your thoughts as to whether or not some of these third-party aspects actually contribute to the length of time that it takes the government to produce some of this material.

M. Blakley: I think that, yeah, the third-party issues do contribute necessarily. I mean, I'd say that's going to be part of the cost of doing business. But there's a difference between it taking an extra month to consult with a third party and figure out what they want excluded or included and taking, for example, the government's position with IBM, which is that once IBM said it didn't want the contract released, the government fought it for five years. IBM didn't.

I think having third-party incorporation is going to increase the amount of time it takes to gain access to
[ Page 89 ]
records, but there's a big difference between it taking 60 days instead of 30 days as opposed to several thousand days.

D. Horne: Sure. Just a bit of a follow-up. From your standpoint, then, would you see the expedient access to this information as more important than the protection of privacy in third-party information? Which would you see as more important in the overall mix of these things?

M. Blakley: If we're going to an electronic mode of communication, I don't think that question needs to be answered, because if you have an electronic system that pulls out…. If you have a box for first name or a box for last name and a box for patent and a box for trade secrets and all you get access to is that which is not those things, then you don't….

Aside from perhaps the odd case of human error, which is going to happen anyway, you're not going to have to balance those two interests. In the case of actually having to balance, I'm not in a position to make any recommendation regarding that.

D. Horne: I guess the difficulty is…. You're dealing with things like the IBM contract, for example. Obviously, the fact that time is of the essence and who you're to give notice to and things like this are not…. For someone asking for that information, I'm certain that that's not the relevant information that they're looking for.

When it comes to sort of the way that they're operating, I think the difficulty in dealing with it is that oftentimes the request is made to find out the information that is perhaps in many cases the most difficult to not sever. It's what creates some of these problems.

I don't think IBM would have had any issue with the public knowing that time is of the essence or that basically their office in wherever was where notices were to be delivered. It's the fact of how they're delivering the services and the types of services they're delivering under the contract, which is obviously what people are interested in, as well as…. Perhaps the way that it's worded is proprietary.

M. Blakley: If the issue is how it's being delivered and that, then that's not a personal information issue, I don't think. To me, I would say that if you're dealing with the public taxpayers' money and information and you're a private company and you want to deal with government in that regard, which is to exclude the personal information aspect, then you should be more than willing to say what you're doing with that tax dollar.

D. Routley (Deputy Chair): In fact, despite the fact that the onus is on the third party to prove harm by the release of the information, IBM didn't even send lawyers into the courtroom. It was the B.C. government which appealed the decision of the commissioner. IBM essentially sat back and watched the appeal go forward.

To pick up on the section 25 question earlier — "Information must be disclosed if in the public interest" — this is an area of the act that has completely failed the public interest, in my own humble opinion.

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I've heard it suggested that perhaps transferring liability to the public body or the head of the public body for failing to notify the public, for sharing information which harms the public interest, would be remedy or at least a very large incentive for public bodies to be open with their information. This would be most particular around issues of contamination and threats to health and safety and environmental safety.

Do you think that's a reasonable suggestion?

M. Blakley: That seems pretty reasonable, for sure. I think that's a good suggestion. I'm not sure if you guys…. I assume you're aware that they've read "urgency" into section 25 as well, and that pretty much killed the section. So yeah, I think the idea of transferring the liability to the public body is a great idea.

On the other hand, if a company, a private corporation, is responsible for having, say, put asbestos in all of these buildings, knowing…. Monsanto producing a corn crop that they know is toxic, for example. If they know that that's going to be transferred to a public body, all they have to do is hide it for a little longer, and then they're not going to be liable. So I'm not sure how that dynamic would play out, but I like the idea.

R. Cantelon (Chair): Thank you very much, Mr. Blakley, for your presentation and articulate answers to all our questions. We thank you for that. As I said before, I assure you that we'll take very serious and thorough consideration of all your recommendations. Thank you for taking the time to produce that and present today.

I'd now like to welcome Deryk Norton, representing the Vancouver Island Strata Owners Association and the government and media relations.

Deryk, the floor is yours when you're ready to go. You have an associate with you today, Deryk?

D. Norton: I do. Our president was unable to be here today. That's Tony Davis. But Harvey Williams, our past president, is joining me here.

R. Cantelon (Chair): Harvey, you're certainly welcome to join and engage in the presentation as well.

You have the allotted time, Deryk, so please proceed.

D. Norton: Okay. I'm representing today…. I'm a director of the Vancouver Island Strata Owners Association, and to my left is Harvey Williams, the past president and another director of the strata owners association.
[ Page 90 ]

There is a handout report here, a brief report of about a page and a half, indicating that our association has represented the interests of thousands of strata owners on Vancouver Island and increasingly on the mainland, and has done so independent of government and the real estate industry.

Our association is not supported financially by either the real estate industry or government. None of our volunteer directors is an at-pleasure appointee to any government board. All directors are elected at an annual general meeting of the association's membership, which is basically strata owners from across Vancouver Island.

Just as a reminder for some, in British Columbia there are over 460,000 condominiums or strata property units. In Victoria and the Lower Mainland over one-half of all properties are condos or strata properties. These units are part of communities with sort of mini-governments that lack the transparency and accountability mechanisms in place for other governments.

Our concerns regarding freedom of information are basically three, as indicated in this report. I realize that a lot of concerns relating to strata corporations come under the PIPA, which is not within the scope of this review. However, it is the case that the commissioner is also appointed under this act, and there are some other relationships with the Strata Property Act that I'll get into in a minute.

The strata property owners are frequently and unlawfully denied access to information to which they are entitled under sections 35 and 26 of the Strata Property Act. Many of these denials are based on frivolous or misleading references to B.C.'s privacy legislation, often by strata management licensees who should know better. Such denials impede the transparency and accountability in strata corporations and make a strata owner's property interest vulnerable to abuse or outright dishonesty by members of strata councils or by strata management licensees.

The second concern we have is that the commissioner appointed under section 37 — or the acting, under section 39 of FIPPA — lacks direction to support strata owner access to strata information under either the PIPA or the FIPPA. This means there's no accessible enforcement mechanism for freedom of information for strata owners under any B.C. statute.

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Furthermore, the commissioner's recently released guidelines for strata corporations and strata management licensees do not even mention section 18(1)(o) of the personal information and privacy act, which basically allows an organization covered by PIPA to release information without permission where it's required to do so under statute.

We think this omission can be reasonably attributed to the failure of the Office of the Information and Privacy Commissioner to adequately balance a strata owner's statutory right to information against the power of a strata council or a strata management licensee and their power to conceal information. We feel that the commissioner made a significant omission in those recent guidelines that were released — this by the office of the commissioner appointed under section 37 of this act.

The third concern — and I heard reference to it in the earlier commentary, the previous presenter — is that inflated ministry estimates of costs for granting a request under the FIPPA inhibits citizen requests for information that affects their property.

The Ministry of Transportation and Infrastructure is responsible for approval of bare land strata subdivisions under the bare land strata regulation. At present the ministry uses a private and closed-door process that excludes strata owners from its review and approval of new phases of an existing bare land strata plan in which those owners reside.

Under this process, the ministry can and has ignored the rights of strata owners, resulting in some serious legal errors that later had to rectified. The experience has made some strata owners more vigilant in seeking information from the ministry. However, the ministry appears to be impeding access to such information through the use of inflated estimates.

For example, in response to one request from a strata owner, the ministry estimated the cost of over $7,000 to provide a few pieces of correspondence and phase approval documents for a strata plan. The strata owner pursued the matter and obtained the information for the actual cost of only $180. Such a case creates the perception that the ministry is using inflated cost estimates to scare off requests under the FIPPA in order to maintain complete secrecy of its interaction with strata developers.

As a result of our concerns, we have three recommendations to put forward. One is that strata owners be provided with enforceable freedom of information from strata corporations — similar, but simplified, to that available to the public from local public bodies such as the Real Estate Council, as listed under schedule 3 of FIPPA. Basically, expanding the definition of local public bodies is what that would mean, or having some modified definition.

The second recommendation is that the OIPC be required to maintain a fair and balanced approach in protecting freedom of information for strata owners. They seem to be very much on the side of protection of privacy, but we have this tension between privacy and freedom of information, as I'm sure you're all aware of and have probably discussed for hours. In the case of the strata owner just trying to get at the information that they're supposed to be entitled to under their own statute, there's no mechanism to ensure that they do have access to that information.
[ Page 91 ]

The third recommendation is that the Ministry of Transportation and Infrastructure be deterred from providing grossly inflated cost estimates in response to requests under the FIPPA.

That is the extent of our report. If the scope of the review had been broader in terms of PIPA and perhaps some other statutes, such as the Strata Property Act, we would certainly have a lot more to say. But we have only these three basic concerns and three recommendations.

R. Cantelon (Chair): Thank you, Mr. Norton. I think you understand and appreciate…. There seems to be an overlap, certainly. I did chair the previous committee, PIPA, which relates to information regarding private corporations, and here we're dealing with public corporations.

But I think you make the point well that a different interpretation of the Real Estate Council's information, which they receive, could perhaps solve some of the problems.

D. Norton: Well, I guess the question is: what should be the scope of a definition of "public body" or "local public body" under the act? Strata corporations are created by statute under the Strata Property Act, and they didn't just come out of nowhere. Many of these other bodies are created under statutes, such the Real Estate Council.

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We're thinking that there's a large proportion of a person's assets that are invested in their property. It's subject to certain levies and bylaws. There's a certain amount of information they need to make sure things are being run properly, and they're not getting access to the information they're entitled to.

R. Cantelon (Chair): Well, I'm certainly not trying to deflect your comments, your very valid points, but I think you raise the issue that we'll have a jurisdictional issue. It'll be a challenge. We'll look at that and consider that.

Other questions from the panel?

D. Routley (Deputy Chair): It's more a question for the Chair, and the Clerk, I think, is looking at it now. In fact, we're mandated to examine the Freedom of Information and Protection of Privacy Act.

R. Cantelon (Chair): Which relates to public bodies.

D. Routley (Deputy Chair): I think in the case of third-party privacy, it does relate to private corporations as well. The clause in the act would be in division 3, "Notice to third parties." Under division 2, "Exceptions," there's "Disclosure harmful to business interests of a third party." So I think that the privacy issues related to private corporations are impacted by our review.

R. Cantelon (Chair): As I'm saying, I'm certainly not trying to deflect or discount this. These are very important issues. I'll seek advice from the Clerk of Committees and see how we can incorporate it in our deliberations.

Other questions?

R. Sultan: It's not so much a question as a comment. We've heard from this very articulate and well-prepared presenter today, if I may extend the compliment to you, and the previous speaker and others throughout these past two days about the fees charged.

Just so I might inject a note of realism from my own admittedly non-expert perspective, the thought that mainframe computers might be charged out at a thousand dollars an hour or programming at $30 an hour seems to be an astonishingly high sum, to the previous speaker at least. Again, you raise the question of the fees — $7,000. I must confess that it does seem a little steep for a few photocopies of a letter, if that's really all that was involved.

The point I'm trying to make is that I think anyone who has ventured into the very expensive world of information technology, recordkeeping, data retrieval and software development quickly realizes that in that world these are not extraordinary sums at all. I just want to make that comment. Twenty-five dollars — you know, that might buy you a cup of coffee in the lobby.

D. Routley (Deputy Chair): Just in response to the previous comments from Mr. Sultan — I assume we're able to use our names in this context — one of the initial goals of this act was that fees would never become an obstacle to the provision of information that's in the public interest and that in fact belongs to the public.

When we heard charges ranging up to $176,000 for information to be provided that is maintained by our government…. I think that asking the public — public bodies, non-profits or individuals — to pay for the software development through these charges or to pay for the maintenance of the provincial government's mainframe computer — when it is in existence and will be maintained in any case — is definitely creating obstacles to people accessing their information.

This example shows us that not only are those fees exorbitant, but it seems clear to me that it's being used as an obstacle when the estimate is $7,000 and the ultimate cost is $180. When we see…

R. Cantelon (Chair): You have a question coming here, I presume, Doug.

D. Routley (Deputy Chair): …deposits required that are half of those sums — a $24,000 deposit for information — that seems a clear obstacle to the public's access to information.

Would you agree that those are obstacles to your organization accessing information that you believe is yours?
[ Page 92 ]

D. Norton: It certainly is an obstacle to our members or individual strata owners who want to get information from provincial government ministries with responsibilities relating to strata, as it was in that case. It's also an obstacle, not the cost so much but….

[1510]

Again, I think that's probably beyond the scope of this review, but some or our strata owners have complained about strata management licensees charging, or attempting to charge, exorbitant fees outside of their contracts with the strata corporation for information, such as I alluded to earlier, that is being denied to them.

Just by way of example, people are being denied access to information on unpaid accounts, such as unpaid strata fees; access to a contract under which a strata corporation and all owners are obligated to pay specific amounts; access to correspondence and associated documents showing the amount and the content of competitive bids for strata-building or mediations; a list of owners, their strata lot numbers and mailing addresses for purposes of petitioning for a general meeting resolution or campaigning for election to a strata council; a list of proxies held and voted by a person voting those proxies at an AGM.

All of this goes back to the governance and the integrity of that governance in a strata corporation. People are frequently denied access to this information, so they're unable to look after the affairs of their strata community because they can't get the basic building blocks for what they need.

Again, some of that information is…. The examples I gave here are not impeded by government ministries or public bodies as currently defined. It is sometimes impeded by the strata management licensees.

R. Cantelon (Chair): Regardless of the source, I think the point's well taken. There are 450,000 owners, and any government body and council considering these matters would be wise to give full consideration and weight to the points you've made. Thank you very much, Mr. Norton, for coming forward today.

We now have Don Startin. I'd ask Don to come forward. We have another person, Elizabeth Thompson, who will come forward subsequently to that. I'd ask Don Startin to come forward if he's here.

D. Startin: I would be most grateful if the other gentleman could precede me, because I'm here to report as well as to speak to you.

R. Cantelon (Chair): Excuse me. I can't speak to you or respond unless you come to the table. It's a matter of being recorded in Hansard, sir.

D. Startin: Oh, I see.

MLA Chairman, I would request that the speaker after me, who I didn't know about, would speak before me, because I am here both to speak to you and to report for my newspaper. If that's in order, I put it to the….

R. Cantelon (Chair): I have no problem with that. I see nods. I'd like to ask Elizabeth Thompson to come forward, then.

Thank you, Elizabeth. You have the floor.

E. Thompson: I'm sorry I didn't put a written submission. I thought there would be so many people that there wouldn't be room for…. The corporations would be involved.

The Freedom of Information and Protection of Privacy Act is dear to my heart for a couple of different reasons. Back in, I believe it was, late 1990 or early '91, I was asked by the provincial government of Alberta to sit on the steering committee when this was contemplated, before it ever saw any legislation. I spent 18 months going through various files — personal files, contract files, land titles files — begging my staff to assist me, on those types of things, to recommend the problems.

I'll regress to my own issues, which are personal. In regards to the fees, the fees at that time, particularly in Alberta, were derived for two reasons. One, the intent not to limit the participant or the individual from requesting the information. Also, at that time very many administrators looked at the types of information or frivolous requests that might be asked as administratively tying and budget reducing.

I regress from that, and I move on from that, because that's old.

The reason I came to talk today is that I wanted to talk for the sake of the public or the individual, particularly in the area of the health services, which was spoken to before, and their read for freedom of information, and as well at the municipal level or our local government levels.

[1515]

Both parties seem to be in total disregard to the act at the front-line levels. I mean, when you walk in the door, the very first person you meet — whether it be the receptionist, the administrator, the janitor, the nurse, whoever — they must have training on the act. Once this act is breached, particularly in privacy, how do you take that breach back? Once it's breached to the community and it's destroyed an individual's life, destroyed their family's life, how does that get taken back?

There is no provision in the act, once it happens, for there to be any resolution or resolve to the breach — the information to be taken back. There is no answer. So that is very, very concerning, particularly if you're an individual that has had your health care taken to the act. Somehow we've forgotten that it's the right to information and the protection of privacy — right? The freedom of information, not that our information should be given away.
[ Page 93 ]

So it's interesting to hear the difference from a corporate perspective to a private perspective. The corporations are saying, "We're not getting enough information," and the public is saying: "When we need information, we're not getting it." Our privacy is not being respected time and time again, particularly in the health care issue.

I participated in the Conversation on Health forum, and this was spoken to time and time again from person after person. They ended up in medical trouble because the information was not given to them. They ended up being threatened with denial of service because they brought up the fact or they went…. Hence, the quality of care and control and review office legislation — I believe it's Bill 41 — that I hope will assist this policy. We may have policy statements, but if we don't have training at the front line, it is for naught.

Just to give some examples of very, very recent…. I recently had Canada Post, which is federal, accidentally put my financial information in somebody else's box, who opened it. That information is now public in the community. The administrator or the manager is extremely sorry. It's too late now. I had to have all my financial records, all my cards cancelled. That's one.

For example, if you've had your medical information released to the community…. It's happened to me personally. It's not the incident I'm thinking about, but it's horrible. It's life changing. Their family has been threatened. They get threats. They cannot do anything about this.

The other thing is — and I'll regress back to the medical in a moment, in context — the request for information from local authorities and local bodies. It was my understanding or I thought that a freedom-of-information request could only be used for the purpose of supplying that information or completing that request. It therefore couldn't be provided to, for example, town councils, various other members or boards of hospitals — that type of thing. If you were requesting information, it was to assess and educate yourself, to know if you had a complaint to go forward with.

I'll give you another example of a breach of privacy, and this is in the health care sector. I walked past a health facility, and on a bulletin board in a hallway it said: "Some little kid got hold of the key to my client files, and I can't find them. Keep your eyes out for them." Then there was something else about this kid being a brat. This is in a very small community, a population of just over 800. Where is the key to the client files? Is there a reporting system?

There are two breaches of privacy here. There's a potential breach to every individual within that community, and very serious — their most personal record being their medical record. Some people even keep that information apart from their loved ones because they find it so personal.

The second breach was to the person's employer — very poor. Anybody walking into that facility is quite aware that key is missing.

On another occasion I asked for a medical record for the purposes of…. My name is Elizabeth Thompson — extremely common. You don't want it mixed up, or two of you in the medical system, or two files on you in the medical system.

I was literally told that I expected the system to use vast resources and vast materials for information that is required — that they provide the Ministry of Health under the billing integrity. So when they bill, their computer systems bill the medical system. Therefore, it was not a vast request. It was something that already was in place.

[1520]

The reason for this request is that I had two files. Have you ever had somebody to tell that you have information going awry? What happens then? Who do you tell? When you bring these issues to a public body, it becomes a personal affront. Rather than them looking at resolving problems or identifying weaknesses, they think you're picking on them or you're attacking the holy grail. Therefore, in truth, they bully you. Have you ever been bullied in a small village? Their hands are far-reaching.

In fact, these acts are very often a breach of our human rights, not just our rights to our freedom of information or to access information, particularly medical. The other thing is that it is a breach of our human rights and dignity by being treated with such disrespect at times. Particularly in the medical, time is of the essence. People's lives are being endangered at times.

The reason I decided to speak was the gentleman who spoke about his Nana. As you were being denied information or you are being worked through the system or by the system literally — as I told the forum on health — as a member of the public, all you can do is crawl in the corner, whimper and die.

In summary, what do we do when a private issue gets into the public domain? Public bodies would like to say: "We're really sorry it got into the public domain. There's nothing we can do about it." There is no accountability.

In my mind, as I was listening, the thought of fines…. The fines for breach of privacy are as important as the fines for lack of getting information, because there is no accountability. As the government forms more and more private-public partnerships, which it is doing to save the economy, especially in the health care system and services, you cannot disregard the need for those private companies and private things to respect our privacy in the public system. I think, therefore, hospital beds and extended care homes, in particular, would be one area, but also in laboratory facilities.

Responsibility for the forwarding of information isn't addressed at all in this act. Again, I refer particularly to
[ Page 94 ]
the health care system. You have a lab test or a test result taken, and as a patient you wait to hear. The system tells you the doctor will get a copy. If you want it, ask your doctor. What if the doctor didn't get a copy? What if your name was Elizabeth Thompson? What if it went…? Who knows?

The doctor's office says: "Oh boy, we really can't, because it belongs to the health authority or the authority." In reality, that information belongs to the patient. The patient is paying for it through the insurance. It's the Medical Services Plan. We own that information, yet we are the last ones that are allowed to access it. That is unacceptable.

I don't know what else I can add, and I do thank you for your time. I was writing really quick with notes, so I think I encompassed most of the detail. I reserve the right to make a written submission in much more detail. I was hoping that other individuals would submit more, and I will encourage the public to write to you up until February 28. The only way that this can be resolved is if you take the time to hear the people.

R. Cantelon (Chair): Thank you very much for your presentation. I would encourage you to make specific recommendations and submit them to us, and we'll certainly consider them.

Are there any questions to the witness?

Once again, thank you for coming, Ms. Thompson.

I'd like now to call our final witness, Don Startin, to the table. Thank you for coming and appearing, Mr. Startin. The floor is yours, sir.

D. Startin: My background is one where I write for Street Newz. Mr. Chairman, if I might just turn to my fellow spectators to make sure there's nobody else here from Street Newz, because I don't want us to duplicate.

[1525]

Anybody here from Street Newz? Oh, that's good. Okay, anything I write won't be duplicated, so we won't waste time.

I have to make an apology for my fellow British Columbians. This place should be packed. I've been to several committees on forestry and the budget committees, and I regret that my fellow British Columbians who live in Victoria aren't doing their thing. We're not allowed to wear buttons in here, but if I could wear my favourite button, it would say: "Democracy is not a spectator sport."

I don't profess to be an expert on these matters, but I am active with the Victoria Seniors and with the South Island Health Coalition. One of the other speakers, Lyne England, sits beside me in the South Island Health Coalition. This is one of the places we come from.

One or two little things came to mind as I listened. Due to concentrating on health and old folks' issues, I haven't been following freedom of information and privacy. The last time I checked, which was some time ago now, a citizen cannot walk into the Maximus office in Victoria and ask for information. I suggest the committee check into that statement. What kind of idiocy is this? If you have trouble with Maximus for one reason or another, you should be able to go in there and speak to somebody.

The other ladies and gentlemen who presented really made a lot of good points. I would just like to reiterate some of the things that I picked up on: absurdly high fees for information, targeting of political parties, public interest organizations in the press.

In my opinion, a public interest issue should be a sine qua non of fee waiver, and this should be established very early in the process.

I'm a tenant in a building which has a strata council. I'm not allowed to speak to the strata council. So I couldn't go to a meeting and ask for anything, because I'm not allowed to speak. I mean, it's a small thing, you understand, but I get the feeling strata councils are sort of another thing of creeping fascism in our….

R. Cantelon (Chair): Mr. Startin, if I could direct you. We're here to specifically understand what recommendations you have to change the legislation regarding the freedom of…. So if you could limit and direct your comments to that, we'd much appreciate it. Thank you, sir.

D. Startin: Okay. I stated the problem. The committee should look very carefully at the gentleman who spoke about strata councils and make sure that anybody who has dealings with a strata council can get information, and it should be in the Strata Act.

On costs, I recommend that deposits be looked at carefully and significantly reduced. I liked the last lady, who said that there should be fines for breach of privacy. I can certainly understand where she's coming from.

Lastly, this is a kind of difficult recommendation, because it wouldn't be involved in anything that you guys would write, but it certainly would be involved in the way you operate. We get the impression in British Columbia that this place is run by the Premier's office and that caucus doesn't have very much to say. The members, the MLAs, are browbeaten in Liberal caucus.

[1530]

Now, I'm a blacksmith. If any Liberal MLA here wants to borrow my hammer to go and pound on some desks in the Liberal caucus, you'll have my name in Hansard because they're recording it. But I'm afraid I haven't any kind of written submission.

R. Cantelon (Chair): You may well get some volunteers to use your hammer on us.

D. Startin: I've made my brief points. I once again apologize for my fellow citizens that they weren't lining the walks.
[ Page 95 ]

R. Cantelon (Chair): It's always good to have the man with the hammer as the last presenter. We thank you for that, sir. Thank you very much for coming.

G. Gentner: I have one question.

R. Cantelon (Chair): Mr. Startin, if you wouldn't mind returning, we have one question for you.

G. Gentner: I have one question. I'm not going to take too much of your time.

D. Startin: Amazing.

G. Gentner: Thank you, Mr. Startin, for coming here today. It's been raised before, and I don't think we've asked the question. I'm going to put you on the spot. You're an apologist for the British Columbians who are not here. So why aren't they here?

D. Startin: Well, it's a wonderful question. I blame the social studies teachers. They should all be fined heavily, and some of them should be sent to Zimbabwe, because they don't teach it right. We're producing a bunch of political wimps.

R. Cantelon (Chair): Not you among them, Mr. Startin — quite clearly.

D. Startin: Absolutely not.

R. Cantelon (Chair): Thank you again for coming.

H. Bloy: I move the committee adjourn.

D. Routley (Deputy Chair): On the motion to adjourn, could we consider that so far we've had a lot of very useful presentations, and it might be helpful in our deliberations to convene another meeting, which would allow further representation from some of the speakers we've heard from, including the UVic environmental law society representative and others — that we may benefit down the road from further interaction with public presenters.

R. Cantelon (Chair): As you and I have discussed, vice-Chair, we can set the agenda as we see fit. I think you and I have agreed, and there will be word going out to extend it to March 15. We can consider what other meetings, and you and I will discuss what other witnesses need to be called and convene and discuss that.

D. Routley (Deputy Chair): Yes. If that's the case, then I would make a motion supporting that move to March 15.

R. Cantelon (Chair): We'll, we've got a motion on the floor now to adjourn, but you and I control the agenda. You can consider that we'll go to the 15th. We'll send that out.

So — motion. All in favour?

Motion approved.

The committee adjourned at 3:33 p.m.

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