Review the Freedom of Information and Protection of Privacy Act — Issue No. 6

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

320 Strategy Room, Morris J. Wosk Centre for Dialogue
580 West Hastings Street, Vancouver, B.C.

Present: Don McRae, MLA (Chair); Doug Routley, MLA (Deputy Chair); Kathy Corrigan, MLA; David Eby, MLA; Eric Foster, MLA; Sam Sullivan, MLA; Jackie Tegart, MLA

3. The following witnesses appeared before the Committee and answered questions regarding the Freedom of Information and Protection of Privacy Act:

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


CONTENTS
Page
Presentations	51
W. McDonald
S. Tromp
L. Millar
S. Levine
R. Berger
R. Botterell
J. Rush
R. De Pieri
R. Champagne
V. Richards
S. Tam
D. Felske
P. Schwartz
P. Hancock
L. Carson
C. Johansen
O. Lau
D. DeCosse
L. Fraser
S. Bohus

D. McRae (Chair): Good morning, everyone. My name is Don McRae. I’m the member for the Comox Valley and Chair of this committee, the Special Committee to Review the Freedom of Information and Protection of Privacy Act. B.C.’s Freedom of Information and Protection of Privacy Act requires a statutory review be conducted every six years by a special committee of the Legislative Assembly. This is the fourth such statutory review of FIPPA.

Our committee must submit a report to the Legislative Assembly by May 27, 2016, and may make recommendations to amend FIPPA. Our review is limited in scope. We are not mandated to implement our recommendations. Our committee would not be involved in any policy development or decision-making processes within government that might ensue in response to our recommendations. We are an advisory body only.

FIPPA is an access and privacy law that applies to the public sector. It gives access rights to British Columbians by requiring public bodies to disclose information in response to access reports and protects the privacy of individuals through limitations on how public bodies collect, use and disclose personal information. It also requires organizations to protect personal information by making reasonable security arrangements against the risks of a privacy breach.

At today’s public hearing, we’ll hear from 15 individuals and organizations. It is the fourth meeting at which the committee has received submissions. In July, we heard presentations from the Ministry of Technology, Innovation and Citizens’ Services and from the Information and Privacy Commissioner of British Columbia. The first public hearing in Vancouver was held on October 16, and after this second public hearing in Vancouver today, there is one scheduled on November 18 in Victoria.

Written, audio and video submissions will be accepted by the committee until Friday, January 29, 2016. In case any committee members are wondering, my birthday is the next day, so I will be spending my birthday reading those submissions or opening presents from committee members at their leisure.

To make a submission or learn more about the work of the committee, please visit our website, which is www.leg.bc.ca/cmt/foi.

Today we have allocated 20 minutes for presentations, to be followed by an additional ten minutes for questions. The proceedings are being recorded by our able Hansard Services, and a transcript of the entire meeting will be made available on our website.

I’ll now ask committee members to introduce themselves, starting with the Deputy Chair, to my left, and then moving to my left.

D. Routley (Deputy Chair): My name is Doug Routley. I’m the MLA for Nanaimo–North Cowichan and the spokesperson for Citizens’ Services and the Freedom of Information and Protection of Privacy Act for the official opposition.

K. Corrigan: I’m Kathy Corrigan, MLA for Burnaby–Deer Lake and the official opposition spokesperson for Advanced Education.

D. Eby: Hi. My name is David Eby. I’m the MLA for Vancouver–Point Grey and the NDP spokesperson for Housing, gambling, liquor — all the fun stuff.

J. Tegart: Jackie Tegart, MLA for Fraser-Nicola. I’m the government caucus chair.

E. Foster: Eric Foster. I’m the MLA for Vernon-Monashee, and I’m the government Whip.

K. Ryan-Lloyd (Deputy Clerk and Clerk of Committees): Good morning. I’m Kate Ryan-Lloyd, Deputy Clerk and Clerk of the committee today.

Will McDonald, welcome to the morning of our presentations. You are our first, so I’ll let you introduce yourself. The floor is yours, sir.

My name is Will McDonald. I’m the coordinating editor at The Ubyssey, the student newspaper at the University of British Columbia. The main audience we serve would be the roughly 50,000 students at UBC, but we also serve faculty, staff, members of the community and interested public as well.

Part of our job is to inform our audience. Another part is to hold power to account. One way that we are able to do that is through freedom-of-information requests, but we faced a number of barriers to requests, which is why we’re here today — to bring some of those up.

Some of our major concerns would be exemptions for certain parts of the university — namely, Properties Trust and Investment Management Trust, which are wholly
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owned subsidiaries of UBC yet aren’t subject to freedom-of-information requests. I think you’ll hear from a number of people on that through the review.

Another concern that we have would be delays to filling requests. Our requests are rarely, if ever, filled within 30 days, and we think the extensions are often arbitrary and unjustified.

Our third concern would be fees applied to freedom-of-information requests which we believe are made in the public interest yet are often subject to fees or us narrowing the scope of the request in order to cut down the fees.

The first point, going into exemptions — namely, Properties Trust and Investment Management Trust at UBC. They’re wholly owned by the university, a public body. They deal with millions and millions of dollars of money, yet they are open to very little scrutiny. They rarely, if ever, respond to interview requests. So one of our only ways of getting information out of them would be through freedom-of-information requests, yet, as it stands, we can’t file those.

There have been some ongoing cases through the years over whether they should be subject to freedom-of-information requests. I believe Stanley Tromp will be presenting later today and is one of the major people involved with that. In 2006, he had applied for, I believe, committee reports and statements from, particularly, Investment Management Trust and Properties Trust at UBC. Originally, those were not granted.

After appeal, an adjudicator ruled that they should be granted. In 2011, we wrote a letter supporting the adjudicator’s decision that those should be subject to freedom-of-information laws, yet that was overturned on appeal by the university, and they still are not subject to freedom-of-information requests.

I won’t read the whole letter in full. It’s here in the submission. I think what it sums up is just the incredible amount of money and power that, particularly, Properties Trust and Investment Management Trust have at the university, yet they face very little oversight. They’re acting, effectively, as corporations when they really are part of a public body. This has been ongoing, and we think that that should change.

The second point would be delays to our freedom-of-information requests, particularly in regards to the University of British Columbia. That’s where we file most of ours. They, for starters, interpret the 30-day window as 30 business days. So that adds time on to it there from the start. Then they almost always apply for extensions, often near when the request is due but sometimes right off the bat and usually for reasons that just seem to be that they are overworked in the office, that they’re understaffed, rather than it being that they would actually need more than 30 days if they had the appropriate resources to work with.

I think a good example of these requests being delayed at UBC would be the ones filed about Arvind Gupta — the former president’s departure. In early August, his departure was abruptly announced, with very little information from the university as to why he was leaving. We had several interview requests. We tried to get information out of people, but there was very little forthcoming.

We filed a number of freedom-of-information requests to try to shed some light on the situation. Those were filed, I believe, the first or second week of August. Originally, UBC asked for an extension and then another extension. After the second extension, which would have put the request we filed in August due last Friday, the day before — Thursday night — they e-mailed us saying: “We will need another 30 days because we have to consult with a third party because of potential privacy concerns.”

They’ve had all this time to consult with the party, all this time to fill the request, yet they’re not filling it. Clearly, either they’re not doing their due diligence at the office, or they want to withhold information or delay it, neither of which, I think, is within the spirit of FIPPA.

I think that there need to be more regulations in place so that the body can’t unilaterally just apply extensions. You know, there’s no real oversight there. They can cite a part of the law and apply for an extension, but there’s no actual having to have a body approve their extension or have more justification for why they’re extending it. I think there needs to be more of that and potentially — whether it’s penalties that are monetary — something in place to enforce public bodies upholding these regulations.

The next point would be fees. We’re a student newspaper. We have a limited budget to work with, and the requests that we do make, we believe, are in the public interest. That’s why we’re requesting them. We want to be able to tell stories that hold the university to account or tell the public things that they should know. Yet we’re often met with fee estimates which often seem arbitrary. Whether it’s for photocopying…. We don’t need photocopies if we have digital submissions, but everything is outdated, it seems, and being photocopied — or being mailed CDs as opposed to being e-mailed PDFs.

We often either have to narrow the scope of our request or not file a request, neither of which, I think, is within the spirit of open access to information. There we would ask that there be…. I think there should be fees automatically waived for requests made in the public interest, which we believe our requests are, or a more specific rubric for how fees should be assessed, if they are, because it seems quite arbitrary and, frankly, limits what we ask for.

Those are our major concerns that we’ve dealt with, mainly at the University of British Columbia. Going into summary, we think that public bodies should be fully subject to freedom-of-information requests. They shouldn’t be able to route things through subsidiaries which they wholly own and not be subject to FIPPA.

We think there should be more oversight and more regulation when it comes to filling freedom-of-information requests within that 30-day window. As it stands, public
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bodies can just unilaterally push things back and keep pushing things back, and there’s really not much oversight there at all. They pretty much determine when their information should be disclosed.

Thirdly, we think fees should be automatically waived for a request that’s made reasonably in the public interest. There shouldn’t have to be a debate back and forth between “How many pages are going to be photocopied?” and “What’s the scope of your request?” and all that. Again, it really does limit the information that we get and our ability to do a job as a newspaper and hold public institutions to account.

That sums up my presentation. I’d like to thank you again for having me and open it up to questions.

D. McRae (Chair): Thank you very much. Just looking around the table, I see some questions.

D. Eby: Mr. McDonald, has The Ubyssey filed appeals of any of UBC’s decisions about either fees or delays? If so, what have the results been that you’ve seen, or what has your experience of the appeal process been?

W. McDonald: In terms of fees or delays, it’s rare that we go through the whole appeal process. I mean, it’s namely because it’s going to cost us money and time that we don’t have to do. It’s often us just talking on the phone back and forth between the office, trying to, in a way, barter for when things are going to be released or what it’s going to cost or how many pages.

D. Eby: On the issue of the wholly owned subsidiaries, have there been decisions by the Privacy Commissioner or courts about this matter at all in terms of whether or not the act applies?

W. McDonald: Yeah, there’ve been quite a few over the years that have kind of gone back and forth in appeals as to whether these should be subject.

The main one, which I cited earlier, would be the one involving Mr. Stanley Tromp, which has gone back and forth between appeals and basically gone: “Yes it should. No it shouldn’t. Yes it should.” For now, it’s not.

D. Eby: Given the nature of your paper being a student newspaper — I mean, students are only at school for a fixed amount of time — has it been the case before where delays have compromised the ability of a journalist, who’s at school, to cover the story that they want to cover, because they graduate? Is it that lengthy, the delays, or is that not so much of an issue because someone comes in and sort of picks up where the last student left off?

W. McDonald: No. It has been the case quite often where the person who has filed the request and has started to work on the story has long since moved on before we get any requests back. Actually, one that we do have ongoing for whether the request should be issued…. I believe it was a year ago. We filed a request asking for the criteria by which UBC grades their broad-based admissions — how they’re admitting students.

That we are currently appealing — whether that should be released in the first place. The person who filed that has long since moved on, and quite likely, even if it ever is filled, by the time it is, the admissions criteria will be different.

D. Eby: One last question. This issue of fees has been raised before. Personally, I have seen very broad freedom-of-information requests filed that need to be narrowed, and fees seem to be one way in which that can happen. You can say: “Well, we can pull every e-mail that’s ever been sent by anyone at this institution and provide it to you, but it’s going to cost a huge amount of money.”

With something like The Ubyssey, I would imagine that, actually, you have some experience filing these things. They’re more narrow. Do you have any thoughts about how we might be able to restrict the scope of some of these huge requests without a fee-like structure to respond, or do you have any policy suggestions on how we deal with that issue of the overbroad requests?

Also, I wonder whether you might have, if you go back to the office, some examples of fee requests that you’d like to share with the committee, of how this is actually being implementing on the ground? I’d be very interested in seeing that, because overall, I have trouble saying that there should be no fees at all for this type of activity, and I’m curious about your thoughts.

W. McDonald: Yeah, definitely. It’s a tough one when it comes down to what it costs to search an e-mail or what it costs to how much time goes there. In terms of suggestions for how to, I guess, prevent someone from just saying, “Get me 10,000 e-mails” someone has to read through….

Something that we often do is request a narrow time period for the e-mails or include key words in the e-mails, which effectively does the searching for people. So rather than saying, “I want e-mail that has to do with this,” you know, “I’d like any e-mails mentioning phrase X or word Y,” or a thing like that. That, in effect, narrows it down to what we would be looking for and makes it so people don’t necessarily have to go through so many e-mails there. That’s one way that we do it.

In terms of an example of fees being assessed, one I can think of would be…. I think it was a couple years back when, shortly after the whole scandal at UBC broke with the Sauder frosh chants…. I think most people are familiar with that. At that orientation event at UBC, at Sauder, a group of students were chanting inappropriate things
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having to do with sexual assault, and that ended up being quite the scandal.

We asked for e-mails between public affairs and the dean of Sauder at the time, basically, as to how they were responding to this and what their plan of public relations strategy was. Originally, we were told, “That’s too broad. It’s going to be several hundred dollars,” when we’d really asked for e-mails between a couple of people over a very narrow range. We ended up applying some key words to narrow it down, and the fees went down a fair bit. I’m not sure of the exact amount, but that would be one example of how it goes on the ground.

K. Corrigan: Yes, I have a few questions as well. On the issue of undue exemptions, there are various ways that the issue could be addressed, if it was going to be addressed. One of them would be to have a general provision that wholly owned subsidiaries are not exempt — that they would automatically be caught up in the FOI law.

Another possibility is to have them scheduled — to have particular institutions, and I think that is the case for some now, scheduled in the schedules to the act. Another one would be, perhaps, to set up criteria for trying to figure out exactly what the relationship is.

I’m wondering if you have any thoughts on what would be the preferable way to do it, if it was going to be done.

W. McDonald: If it was up to me, I think that they should be treated like the rest of a public body. They’re part of a public body and should be subject to disclosure laws that a public body is.

My next question is around the delays. Again, I’m wondering about what you think the answer is. Do you think that the time periods should not be stacked? Is that one possibility — to say instead that at the end of the extension, you can’t then go ask for the 30 days for the third-party discussions?

W. McDonald: I think that’s a step in the right direction, definitely. I mean, as it is now, any change or any request is automatically another 30 days, and that’s pushing things way back that don’t necessarily need 30 days to happen. So I think that would be an improvement. But more broadly speaking, I think filling a reasonable scope request within 30 days should happen.

K. Corrigan: My final question, for now anyway. One of the things you’ve probably seen, being a reporter, in the Legislature is the suggestion that there’s a bit of a culture of deleting e-mails or not writing things down in the first place. I’m wondering if you have experienced…. It doesn’t sound like it, but have you had any sense that that is occurring at UBC?

W. McDonald: Not directly with the access and privacy office, but I think that is definitely a concern at the university. I mentioned earlier the nature of President Gupta leaving and how the board of governors handled that. There’s been quite a bit of secrecy there. For example, all the board of governors representatives at UBC don’t have UBC e-mails; they deal in private e-mails. None of their e-mails can be FOI’d, because they’re using their personal e-mails. So I think there definitely are issues there in terms of a culture of secrecy.

K. Corrigan: So you’re saying that — I just want to be clear — the members of the board of governors, when they are acting in their role as members of the board of governors and communicating with each other, are using private e-mails. How do you know that’s happening?

W. McDonald: Yeah, to the full extent of my knowledge, that’s what’s happening. I’ll give you an example. Neal Yonson at the University of British Columbia, who runs a blog, UBC Insiders, filed a freedom-of-information request to the province asking for the e-mails of the board of governors representatives at UBC, to which their response was that there were no records found.

D. Routley (Deputy Chair): The exemption issue has long been an issue for this act. In the last committee six years ago, it was recommended that the subsidiary bodies come under the scope of the act. The Education Minister at the time of the last appeal was Shirley Bond, and she agreed that the act should be amended to include subsidiary bodies. I just wanted to make sure that you know that.

It’ll be something that we’ll be keen to see addressed — at least some of the members here for sure — along the principle that a public dollar is a public dollar is a public dollar no matter who ends up spending it. There ought to be the same transparency to any body that handles public funds.

On the delay issue, every other jurisdiction in Canada has remained with 30 calendar days. The 30 business days has added something like 40 percent to request time. It was pointed out before that if you go right to the end of a request and ask for an extension, you are in fact complying with the act, so it doesn’t statistically register as coming outside of the parameters of even the 30-business-day piece.
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Is it your experience that these requests for extensions come at the last minute, or can you make that judgment?

W. McDonald: They quite often come at the last minute, for the most part, that I’ve seen. Sometimes it will initially be, “Well, we’ll file the request,” and they’ll say: “Oh well, it’s going to take longer, and we want to extend it.” But quite frequently, the request for extension comes at the last minute, so that in effect they’re extending the extension as much as they can.

D. Routley (Deputy Chair): Then, finally, on the issue of fees, there is a Canadian Supreme Court decision that defined the public interest. This is a barrier that’s been identified in a number of ways, not just with fees but also the application of section 25, which is the duty to disclose in the public interest.

Are you familiar with that decision? Do you think that would adequately define “public interest” if it were adopted by this committee?

W. McDonald: I think it just comes down to having to argue with the body that it is in the public interest and that it’s not…. It’s kind of a back-and-forth sometimes with the office for us to say: “Well, this is in the public interest.” “Well no, it’s not. It’s this many pages; it’s this much money,” rather that it being: “Okay, this request should be redeemed in the public interest.”

D. Routley (Deputy Chair): The other aspect of public interest is in protecting people who determine in their course of work as an employee of a public body that something is in the public interest, so they release it, and we have no whistle-blower protection. That’s the other side of the public interest issue — less affecting you, perhaps. But the public interest in fees has been brought forward.

What we need, really, is a more narrow definition so that people feel confident, perhaps, in being able to release information, rather than a very broad definition, which is difficult for them to interpret and more prone to making them vulnerable to reprisal. How would you like to see that definition constructed?

W. McDonald: I think for us, as a newspaper, it’s a matter of: should the public know this information? Does this information help hold people to account? Does it help us to tell people things they need to know, while respecting a certain amount of personal privacy?

E. Foster: I’m just going to continue on the same line, on the public interest and the waiving of fees. I mean, Rogers Communications could make an argument that some information they’re looking for is in the public interest. Should we waive the fees for Rogers Communications so they can continue their business?

I appreciate that your organization has limited funds, as a student newspaper. That’s an easy statement, but it’s a very complicated solution. How do you make that determination? Who gets a free ride, and who doesn’t? Or if somebody’s writing a book to sell, should we give them total free access to freedom of information so they can get the information for their book and then sell it — at the taxpayers’ expense? Tough call.

W. McDonald: Yeah, it’s a tough one, right? For us, it’s different. We’re a student newspaper, and we have limited funds. We’re not trying to sell a book. We’re not trying to sell cell phones, right? We have a more limited scope. I think there is a difference when it’s made in a journalistic sense, in terms of, “This story should be told for the value it has from a journalistic sense,” as opposed to: “This information would benefit a company” or “This information would help me to make money.”

E. Foster: I mean, if you’re Global or Rogers or Eastlink or any of the…. They make their journalistic…. The Province, as a newspaper, could make the same argument.

Well, between questions and presentation, you had six minutes to spare. I thank you very much for your presentation. We have your written submission before us, and if you wish to add an addendum, like I said in my earlier statement, you have until January 29, 2016.

D. McRae (Chair): We have before us Stanley Tromp. Stanley has asked us to waive the question element of it because his presentation is 30 minutes. Because I believe I have the unanimous approval of everybody at the table, that will be done.

S. Tromp: I am pleased and honoured to be here today, for freedom-of-information and protection-of-privacy law is one of the most important and interesting subjects you’ll ever deal with, because it concerns the citizen’s relationship to the state. I’ll let you just know I’m speaking personally and not on behalf of any organization. I will post a longer version of this presentation on my website this week.

I recall speaking at a B.C. legislative review of this law, chaired by MLA Rick Kasper, in 1998 and then one by
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Blair Lekstrom, then Ron Cantelon and now the fourth such review today.

FOI and legal study and journalistic practice has been my life’s main work for the past 20 years, and perhaps it will be for years to come. You can read about 100 FOI news stories on my website. I also wrote Fallen Behind: Canada’s Access to Information Act in the World Context in 2008 — the first book to cross-reference the FOI laws of every nation and Canadian province.

The news media act as a surrogate for the citizens who have neither the time nor expertise to obtain the records for themselves. With Canada’s ineffective FOI laws, we can produce far fewer FOI news stories than the American press does. In fact, I often use the FOI laws of Washington state. The contrast in service with B.C. is like night and day.

The loss of hundreds of such news articles in the public interest that might have been possible amounts to a world of lost opportunities. We too often forget, also, that the public paid for the production of these records, millions of them. They are, for that reason, as much the public’s property as are roads, schools and bridges.

In 2010, I proposed 67 recommendations for reform. The reason I have to reattach them to this submission again is that none were implemented since then — not one. As well, the best recommendations of the first three FOI review committees were shelved by Premier and cabinet and never acted upon.

I will move on to my three main themes of policy advice, shell companies and oral government.

Topic 1, section 13. The most widely misused section of the B.C. Freedom of Information and Protection of Privacy Act, the surely unlucky number 13, for it creates a wide opportunity of secrecy for policy “advice or recommendations developed by or for a public body or a minister.”

How did we arrive here? The B.C. Court of Appeal set a dangerous precedent in 2004, when it ruled on an FOI dispute — the Doctor Doe case of the B.C. College of Physicians and Surgeons, with the court holding that section 13 was not limited to recommendations. Instead, the investigation and gathering of facts could be exempted pursuant to section 13, regardless of whether or not any decision or course of action was actually recommended.

In the Doctor Doe case, the bureaucracy pulled off a legal coup — one contrary to the public interest — with arcane, ingenious arguments that bare facts somehow implicitly prompt a policy direction and the two are inseparably intertwined.

By now, officials use the policy advice exemption in practice as a de facto, all-purpose master key that can lock up almost any FOI door or a catch-all net hanging beneath all the other exemptions. It has become like a spreading epidemic that urgently needs to be quarantined. This likely happened because the drafters of the FOI law in 1992 did not foresee section 13’s use as spreading so far.

If section 25 is known as the public interest override, I would describe section 13 as, in effect, the bureaucratic interest override, except the latter one never expressed the will of the Legislature but the contrary. It now acts as a sort of inverted section 25. The situation is rather like section 13 versus 25, with the first being applied hundreds of times more often in practice than the second. Although such a match is no contest, I do not call for this balance to be entirely reversed, just more equitably distributed.

Why is this occurring? Perhaps because records such as internal audits reveal serious internal failures and the need for costly solutions, but more often, political embarrassments and inconveniences. And secrecy is a tool of control and power.

How does it affect us in practice? What follows is the worst misuse of section 13 I’ve seen. For many years, in my view, UBC and the B.C. Lottery Corporation were tied for the status of the most obstructionist FOI branches in B.C., but that prize has now been claimed by the Provincial Health Services Authority, the PHSA. This body oversees the B.C. Cancer Agency, the B.C. Centre for Disease Control, the B.C. Mental Health Society, the Children and Women’s Health Centre and more, all with $2 billion in annual revenue.

In 2011, I applied through FOI for summaries of five internal audits. The PHSA refused under section 13. I appealed to the commissioner. Her office, in order F12-02, ordered two of the summaries released in full and parts of the other three. The PHSA has also incorrectly claimed section 12.

The PHSA then appealed to overturn that order in a judicial review in B.C. Supreme Court. I sat in the courtroom and listened as lawyers argued that the Doctor Doe ruling was binding. Utilizing lawyers at taxpayers’ expense, the PHSA made its argument using in-camera affidavits which we could not review or challenge. The judge agreed with the PHSA, and they won, but the public lost. After that court ruling, I applied for four new audits. The PHSA denied them all in full, citing that ruling on section 13. And so it goes.

It is crucial to note here that by stark contrast, all the other B.C. health authorities give out their internal audits by FOI in full. As with most FOI exemptions, section 13 is discretionary, which means that the agency may — but not must — withhold the records and is called upon here to exercise its own judgment. So then often it becomes not so much a legal problem as an attitudinal one — less a question of FOI law and policy than of conscience and character. As well, this would have been the ideal time to apply section 25, as the records concerned public health. As a last resort, I hope the Premier would publicly urge the PHSA to release its audits.

The government hides behind the Doctor Doe ruling, and any FOI ruling that it likes, with faux helplessness, a false posture of legal impotence, saying: “The court has
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spoken, and we must obey it.” Courts do interpret the law as written, indeed, but section 13 is very badly written. So it can be rewritten, and must be.

In reply, the B.C. government may try to reassure us by saying: “Section 13 is well written, but in some places it may have been misapplied” — indeed — “but if so, just trust us to correct such misapplications on a case-by-case basis. We can also provide better regulations and guidance for it.” This view is mistaken, for the problem is now far too systemic and widespread for that. So the section needs to be reworded. I expect it’ll be, politically, the hardest section to change, except perhaps section 12 — the one privilege most treasured by unelected officials, who far outlast elected politicians.

The amount of information in the public interest lost over the past 20 years due to over-application of this section is incalculable. We have all been too slow to notice and catch up to its wide misuse. If not repaired, it will only grow worse.

How to reform section 13? Ideally, records that might attract section 13 would be divided into two parts — (1) facts, and (2) genuine advice. The agency should release the first part and consider withholding some of the second. But then the second part, advice, would itself be subdivided into two categories — 2(a), that which would cause no harm to the deliberative process if it were disclosed; i.e., it would pass a harms test and so would be released; and 2(b), that which would likely cause some such harms and so would be withheld.

The FOI law of the United Kingdom, which is B.C.’s parliamentary model, does this. My recommendation is to amend section 13 to include a harms test, wherein a policy advice record can only be withheld if disclosing it would cause serious or significant harm to the deliberative process. The best models can be found in the FOI laws of South Africa, section 44, and the United Kingdom, section 36.

Section 12 is also misused. When I applied to see cabinet agendas, it was refused, with the nonsensical claims that disclosing the one-line topic headings would somehow reveal the “substance of deliberations.” I appealed, and the commissioner’s delegate said: “There’s no substance to them, and they contain no deliberations.” The government appealed the ruling to the Supreme Court and lost. Then they simply ignored the court ruling and are still doing it today in reply to my latest request for the same records.

A note on legal process. Even when some officials know that doing so is indefensible, they will apply section 13 anyway, simply as a game to outspend and outlast the applicant. They know that if the applicant appeals to the commissioner’s office, it takes two years for a ruling. Then if that ruling goes against the agency, it promptly appeals to B.C. Supreme Court; then, if need be, to B.C. Appeal Court; then Supreme Court of Canada after that. Hopefully by then, the applicant will grow tired, lose interest and just go away.

Then, upon the ruling, if the court costs go against the applicant, he or she can be financially ruined, which is why some FOI applicants dare not engage in FOI litigation, even if they could afford to initiate it. By contrast, if court costs are assessed against the government, it feels nothing, for there’s always a bottomless reserve of a taxpayers’ funds to dip into for such legal adventures.

Topic 2 — peering through the corporate veil. Over the past two decades, a very serious problem has arisen. Public bodies have been creating wholly owned and controlled puppet shell companies to perform many of their functions and manage billions of dollars in taxpayers’ money while voicing the fiction that these companies are not covered by FOI laws because they are private and independent.

The problem is that in setting up these FOI-exempt companies, the public body wishes to enjoy all the privileges and flexibility of using corporate power, yet without accepting any moral responsibility or legal liability for their activities. But they cannot have it both ways — that is, to have one’s cake and eat it too. This form of pseudo-privatization is quietly and adroitly undermining the whole purpose of the FOI law. Unless the problem is fixed now, it will only grow worse. The kind of accountability that these entities need can only come from public transparency.

After Vancouver school board’s private companies lost public money in failed overseas business ventures, the Education Minister in 2007 sent out a press release pledging to add these companies to the FOI’s coverage, but this was never done. Why not? Yet B.C. local municipality subsidiaries are covered by the act.

Please consider this. FOI-exempt companies owned by B.C. Crown corporations were related to two major financial scandals of the 1990s: first, Hydrogate, by which B.C. Hydro formed a subsidiary, IPC International Power Corp., to invest in a Pakistani power project; second, B.C. Ferries $500 million fast ferries loss by its subsidiary, Catamaran Ferries International.

Today B.C. Hydro claims that two of its wholly owned companies — Powertech and Powerex — are FOI exempt, so they denied my FOI request for their records. As well, the B.C. government excluded VANOC, of the 2010 Olympic Games, from FOI coverage, even though in the U.K., a similar entity that managed the 2012 London Games was covered by the British FOI law.

These entities’ coverage was urged by the last B.C. FOI review committee in 2010, the Information and Privacy Commissioner, FIPA and many others, all to no avail.

In a 2011 interview, the minister for FOI policy, Margaret MacDiarmid, said: “It seems reasonable to me that they would be covered. So we’re certainly looking at it, but we need to do a consultation, because we have to watch for unintended consequences.” Deplorably, the government then voted down an MLA’s private member’s bill that would have fixed the problem.
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The issue was highlighted in 2006, when I filed a request to the University of British Columbia. Under FOI, I asked for the meeting minutes, annual reports and salary records of three of UBC’s wholly owned corporate entities. The first was UBC Properties Trust, whose self-described mission is to acquire and develop real estate assets for the benefit of the university. It has a monopoly on all of the development that happens on campus. It manages private rental housing for students, and it is the landlord for most of the commercial space.

The second company, UBC Investment Management Trust, acts as an investment manager for UBC’s huge endowment fund and its staff pension assets, making decisions worth billions of dollars.

The third, UBC Research Enterprises Inc., takes research developed at UBC and creates spinoff companies.

The university denied my FOI requests, claiming that all the entities are independent, so not under the control of UBC, as required by the act. I appealed to the commissioner. UBC and its entities then hired a brigade of lawyers, at public expense, to quash the public’s right to know.

Yet in 2009, the commissioner’s adjudicator, Michael McEvoy, ruled that I should have access to the records, writing: “UBC is found to have control of the requested records…. All three bodies were entities created and owned 100 percent by UBC and accountable to it.” Students celebrated the outcome, but it was too good to last.

UBC appealed the McEvoy ruling to judicial review, as did Simon Fraser University in a similar case. B.C. Supreme Court Justice Peter Leask ruled that such entities were not covered by the FOI act, because one must not “pierce the corporate veil.” UBC lawyers argued that the commissioner’s office was “an inferior court,” so the Justice Leask ruling should now be regarded as “the law of the province.”

By the way, SFU had spent $157,144 in legal fees fighting its subsidiary case. Every public dollar that is wasted on these self-serving ventures is a dollar forgone from something worthwhile. Imagine, for example, PHSA using their FOI legal bills for health services, or if SFU, instead of wasting $157,000 to launch such lawsuits, had used those funds to supply bursaries of $1,000 each to 157 needy students. Which is the better use of public funds? You decide.

What are the government’s arguments against FOI coverage of such subsidiaries? Firstly, such so-called private companies of public bodies may complain of the risk of competitive harm. But the claim is illogical. They cannot suffer competitive harm because they have no real competition — i.e., most are monopolies within their parent institution, such as UBC Properties Trust’s status on UBC grounds. I hope your committee will inquire of such entities: “What competitive harms could result from FOI coverage, since you enjoy a monopoly position?”

Secondly, the Chair asked a very good question of the AMS last October 16 on whether it matters if the entity has a monopoly position or not. I have an answer to that, which is the key to the topic. It doesn’t matter at all whether they face competition or not, because they are already fully covered, protected from competitive harm, in the FOI law in section 17 and section 21.

The key question to ask these shell companies that oppose coverage can be summed up: “Why exactly do you say that B.C. FOI sections 17 and 21 are insufficient to protect your competitive interests?” One might learn that some responders are not — or barely — aware of these two exemptions and may require enlightenment on these.

Section 17 begins: “The head of the public body may refuse to disclose to an applicant information the disclosure of which could reasonably be expected to harm the financial or economic interests of the public body….” Section 21 repeats the same principle for private sector third parties. These sections were placed in the law for that very purpose. Why else?

If the illogical, indefensible claim of competitive harms was accepted, then no federal or B.C. Crown corporation would be covered by any FOI law, yet they are all. Indeed, even the most secretive Prime Minister in memory, Mr. Harper, amended the federal Access to Information Act to cover all Crown corporations and their subsidiaries and even some government-created foundations. These would be the national equivalents of B.C. Hydro’s Powerex and Powertech.

All the foregoing shows that the vague, dark warnings of so-called unintended consequences of FOI coverage are, with respect, absolute nonsense. The sole purpose of the call for further study is an eternal stalling tactic, which is the graveyard of reform, as already shown from the VSB coverage that was promised eight years ago and never happened.

The government likely hopes this issue will just quietly go away and die, but as you can see from the many urgent submissions people have given to you here about UBC Properties Trust, there will never be peace until this problem is fixed and justice realized.

Consider that UBC residents and students have been complaining of UBC’s secrecy about this company since the year 1988. That is more than a quarter century of pleading, all to deaf political ears and the entity’s self-serving, granite-like obstructionism. Must they wait now for another quarter century? To Premier and cabinet, I ask: please do not let them down again. Finally heal this long-festering sore.

The outcome is that these public bodies today could still veil their records in the vaults of these fiefdoms, or what the British call quangos. The secrecy creates potential breeding grounds for waste, corruption and risks to public health and safety. Such an outrage cannot be rationalized away by Crown lawyers. This exclusion is also contrary to the spirit of FOI law, section 25.

Apart from the law, UBC’s students, staff and general public, in a larger moral sense, should be regarded as
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the company’s shareholders, as much as the legal owner, UBC, is. Why does it matter? Let us make this abstract issue a more concrete one.

For example, UBC Properties Trust manages the residential buildings. What if it had commissioned a consultant’s report that found that its student buildings had major fire hazards or chemical fumes? UBC residents could not obtain that report under FOI, and they would never know. It would stay buried in the vaults forever because the trust claims it is FOI-exempt.

The warning “unintended consequences” expresses that the pernicious old claim about FOI law reform that we should not do anything until we first know everything. But in these matters, we already know more than enough. The Legislature, in 1992, knew that the calculations of supposed harms of FOI releases is never an exact science. How could it be? There will always be a speculative aspect to it, yet the choices must be made.

In other countries. The FOI law of the United Kingdom includes companies “wholly owned by the Crown.” The French law does as well. Such coverage is also found in the FOI laws of New Zealand, India, South Africa, the American States and many eastern European nations. All of this makes the B.C. and Canadian FOI reality seem all the stranger or barely comprehensible. This is how much the subsidiary coverage has become a global FOI standard.

In 2006, an FOI law was passed in the Islamic Republic of Iran. I am not making this up. I show you a copy. It was just translated from Persian. In article 2, part H, the definition of public institution includes “each institution, company or foundation whose sole share, or more than 50 percent of its share, belong to the state or government.”

I emphasize that I’m well aware that Iran has dreadful human rights problems, and I would not wish us to endorse it as a model for anything else. My point is just to show that overall standards have risen to such a level that even that republic endorses the principle, along with advanced democracies. As well, coverage in the FOI law of the Russian Federation includes information “created by organizations subordinate to public bodies,” the Israeli FOI law was amended in 2007 to include all government corporations of which it owns more than 50 percent. The 2005 draft bill of Palestine grants powers to the commissioner to extend coverage, and the law would cover private institutions that manage a public facility.

I was quite delighted to discover one point upon which Israel, Iran and Palestine all agree, but not yet so in B.C. under our open government Premier. This, one regrets, can hardly be a source of national pride. Under the terms above, UBC’s Properties Trust and B.C. Hydro’s Powertech could never escape FOI coverage as they do now.

My recommendation is to amend section 3 of the B.C. FOI Act to state that the law’s coverage extends to “any institution that is established by the Legislature or by any public agency that is publicly funded or publicly controlled, or 50 percent or more owned, or performs a public function, is vested with public powers or has a majority of its board appointed by it.”

It’s absolutely crucial that in order to reform the B.C. act that such entities must be 50 percent or more publicly owned, not fully owned. If the latter course was the law, the government could just sell off 5 percent of the entity and still own the remaining 95 percent, as an adroit way to escape FOI coverage.

Related to this issue of FOI-exempt bodies, there is another overlooked but extremely serious problem: the secrecy of student societies, some of which have faced serious financial scandals.

In the worst example, the Langara Students Union passed changes to its constitution that could allow the LSU to bar students from attending student society board meetings, prevent in-camera meetings from being taken and prevent students from making copies of student union records.

Each semester, the LSU collects $390 in mandatory, not voluntary, fees from every student for an income of more than $2 million per year. The LSU record disclosure policy is covered by the Society Act, section 37. But that act says nothing about the right to copy records and is nearly unenforceable.

Student unions’ management of student money acts much like a Wild West, under the radar for decades, and most urgently needs FOI coverage.

Topic 3, oral government. The case of the triple deletion of e-mails related to missing women on the Highway of Tears was expertly analyzed in the report Access Denied by the commissioner. I’m grateful that the former commissioner, Mr. Loukidelis, whose ability I have the highest respect for, is reviewing the matter with the goal of providing guidance for future best practices. The subject is discussed more fully by others. I just have a few comments below.

Perhaps the apt term for this event is shocking but not surprising. Although it’s perhaps the worst FOI scandal in B.C. history to date, the overall problem is hardly new. Most famously, Deputy Premier Ken Dobell startled listeners at an FOI conference in 2003 when he frankly declared: “I delete my e-mails all the time, as fast as I can. I don’t put stuff down on paper that I would have 15 years ago.”

I discovered the oral government problem directly when a key source of information about the finances of the 2010 Vancouver Olympic Games were abruptly cut off. Minutes of these meetings of the Olympic Games Secretariat, a branch of the B.C. Economic Development Ministry, were once recorded but then no more. For news stories, I had twice obtained hundreds of pages of minutes from the secretariat through quarterly requests under the act. But in reply to my third attempt, I was told: “We have not located any records in response to your request.”
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A spokesperson for the secretariat confirmed to the Vancouver Province newspaper that meeting minutes were no longer taken. “The secretariat was keeping minutes but found they were not an effective management tool.” I know not what that means. He added that the secretariat’s approach to keeping records is “consistent with cross-government practices and legislation.” But what is the outcome? A whole provincial government of non-minute-taking departments?

Beyond a loss of public accountability, there is a second tragedy for the public interest. A lack of written records leads to poor governance. When that happens, we are all in trouble. Conversely, the benefits of good recordkeeping are felt internally as much as externally.

Government can indeed legislate some conduct, but it is dangerously naive to assume that it can ever legislate attitudes. Yet, perhaps some good will come from this triple-deletion debacle — and someday be relegated to a dismal memory.

Solutions regarding record retention. The B.C. e-mail deletion scandal this year reminds me of another famous case in Ottawa in the 1990s, after members of the Airborne Regiment killed a teenager in Somalia and a public inquiry later found that officials had improperly destroyed records of the case sought by FOI.

Backbench Liberal MP Colleen Beaumier said that so many of her constituents complained to her upon hearing news reports of the record shredding that she became embarrassed by it, enough so to move an amendment to the federal Access to Information Act to fix the problem, which passed in 1999. The same situation should apply in B.C.

Her amendment 67.1 says that no person shall, with intent to deny a right of access under the section, destroy alter or conceal a record. Any person doing so could receive a maximum fine of $10,000 and a two-year prison term. I recommend this for B.C.

Regarding record creation, in 1999, after a decade of pleas by FOI advocates, B.C. passed the Local Government Act. It became the first province to fully prescribe that certain types of documents must be generated by civic councils, such as records of resolutions and decisions. Why should we accept any less of senior government?

Regarding penalties, it is also of interest that in 31 nations the FOI law includes some kind of penalty for obstructing the FOI process — including Ireland, Mexico, Pakistan, India, Scotland and the United Kingdom.

Citizens may well ask: if we are penalized for late tax filings or paying traffic tickets to the point of being pursued by government collection agencies, then why is government not also penalized for breaking its own laws, such as the FOI statute?

Then there is the dangerous diversion of faux transparency. The current Premier is a keen advocate of the new era of digital government, such as posting on-line data sets as well as using most social media like Twitter and Facebook. Yet the unexamined consequences to our FOI laws must be understood.

Over the decades, we have faced many threats to the FOI system. But this one may, in a strange way, be the most damaging, if it convincingly passes as a resolution to the transparency problem while, actually unnoticed, making it worse. Why? Because it may pacify the public with an illusion of transparency and empowerment, while their legal rights to obtain records through FOI laws are regressing at the same time. Yet a new deluge of self-selected and self-serving government Internet fluff is no substitute for urgently needed FOI law reform.

Common sense tells us that a B.C. cabinet report on a public disease risk that is 95 percent blanked out due to a defective FOI law, such as with section 13, and then those blank pages are instantly posted to the B.C. open government website — or all the blogs and Twitter feeds in the world — does not make the public a bit more informed or empowered. It is a case of garbage in, garbage out.

Moreover, Vancouver Sun reporter Chad Skelton explained that most of the database stories produced at the Sun were based on data sets that the newspaper had to obtain by FOI requests and not by the government’s routine release. Many other news media have reported the same thing. This fact alone confirms the far-lesser value of posted data sets than FOI laws.

In conclusion, senior bureaucrats, political advisers and Crown lawyers may advise cabinet: “The FOI law is just fine the way it is now. It ain’t broke, so don’t fix it. In fact, it’s already a bit too open and needs some more restrictions.” These advisers have the inner ear of ministers continuously, in stark contrast to a member of the public who may give input on FOI law reform for one day every six years to a legislative committee, which is a near-total power imbalance.

Future generations may look back upon this time in wonderment that anyone could seriously argue that Canada’s FOI laws should not be raised to accepted global standards. Yet there’s no complexity, mystery or controversy to the matter. The need to do so is so obvious and commonsense as to be, as the term goes, a no-brainer.

In sum, on FOI reform we know it needs to be done. There’s no need to study more and reinvent the wheel. All we need is political will. This must come from the Premier and cabinet, and without their support, nothing good can happen. We hope they will not view this exercise mainly as a forum for the public to blow off some steam harmlessly and for the government to go back to business as usual, which is the old status quo or worse.

The hour is late, but not too late. In fact, if it wanted to, British Columbia could be the world leader on FOI law and practice. The current Premier based her leadership campaign on open government and transparency. Now is her chance to demonstrate it.
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This great province surely needs to at least raise its own FOI laws up to best standards of its British Commonwealth partners and then, hopefully, look beyond the Commonwealth to consider the rest of the world. This is not a radical or unreasonable goal at all, for to reach it, B.C. legislators need not leap into the future but merely step into the present.

I do not have a monopoly on the truth, nor does any other individual or institution. I do not have all the answers, and most FOI advocates never expect to get everything they want. But we can and must do far better.

MLAs serve the public in their own way, as the news media do in ours. Here you have an opportunity to create a historical legacy for your constituents that will endure long after you depart office.

I will just add a point on education and promotion. In Mexico, children are taught in high schools how to file FOI requests, and that could be done here. In some countries, they promote FOI usage by short TV ads. Here are two — from Jamaica and Scotland — each about 30 seconds long.

D. McRae (Chair): Just a reminder that your presentation, obviously, is part of the public record now. I think you said you were going to make some revisions to it. If you wish to make sure that the committee receives those revisions, make sure you submit it before January 29, 2016.

D. Eby: Just before Mr. Tromp goes, I note that he has a great deal of expertise on this issue. He went through his presentation a bit like an auctioneer. I’d like to go through his presentation today, certainly in the Hansard, and later on. If there are questions, is there a possibility of bringing him back for further information, if required?

Good morning. We have scheduled usually 20 minutes for a presentation and ten minutes for questions. If that’s okay, we will begin now. It is now 10:08.

L. Millar: Thank you very much, and good morning. Thank you for allowing me the opportunity to present my thoughts to the FIPPA review committee.

I have prepared a formal presentation of 20 minutes called Remember, Respect, Record: Changing the Culture of Access to Information.

My name is Laura Millar. I am an information, records and archives consultant with over 30 years experience with governments, organizations and other agencies in British Columbia, across Canada and internationally. My work primarily involves strategic planning, policy development, and training and awareness raising, particularly to help agencies address the challenges and opportunities that come with the increasing ubiquity of digital information technologies.

While I travel extensively around the world, I was, for most of my career, based geographically in the Vancouver area. With my husband’s retirement a few months ago, we moved full-time to our house in Roberts Creek, on the Sunshine Coast. With the move, I’ve immersed myself in the overwhelming task of re-landscaping our garden on two acres of land.

As my husband will attest, these days it takes nothing short of an emergency to get me out from under my shovel and onto a ferry back to Vancouver. Well, here I am. I think there’s an emergency.

I’m sure, when you started your review process last May, you did not expect access to information to be the media magnet it has become. I know your analysis is not intended to focus on questions of alleged triple-deleted e-mails or gaps in government records, but those news stories are, no doubt, affecting your review. I’m sure you’ve heard from many witnesses who demand, rightly so, that the government pull up its socks in terms of how it manages information and records. It is a crisis, but crises can become opportunities.

I am not landscaping my garden because I have nothing else to do. Rather, I am fundamentally rebuilding my outdoor environment because experiencing stage 4 water restrictions this summer taught me that my current configuration of shrubs and trees is not sustainable in an increasingly drought-threatened climate.

I could just keep hauling water from my kitchen sink and praying for the best, but I prefer to make broad, strategic, systemic changes to ensure I don’t lose the investment I have in my property or waste precious water keeping my plants alive should the skies remain dry year after year.

Equally, I think the provincial crisis in access, and in information and records more broadly, can be approached as an opportunity, not just to fix problems with the current access regime but also to create a new culture for the management of the documentary evidence of government. This morning, I wish to offer my thoughts on what that culture might look like.

I appreciate that your particular focus is to review FIPPA, but I see information access and information management as inextricable. I hope and assume that you do too. To that end, my comments reach well beyond addressing how you might improve particular elements of access legislation alone, looking instead, at a high level,
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at how government and society should reframe the ways in which we create, use, manage and share information and evidence.

Let me start by challenging mistaken assumptions about terminology. “Information” is, unfortunately, an amorphous umbrella term too often subject to misinterpretation. When we talk about access to information, aren’t we really talking about access to records or, more appropriately in a digital age, access to evidence?

The perception of records is also flawed. Records are seen as static and formalized — documents, reports, memos, letters. Many people still believe that e-mails aren’t records, that databases aren’t records, that voice mails aren’t records. Well, yes, they are records. Or, to be more precise, they can be if they contain evidence of actions, transactions and decisions. The term “record” does not adequately convey the notion of evidence.

Finally, the interpretation of archives as old places evidence at risk in a digital age. Records do not have to be old to have archival value, and evidence does not have to be a record in order to be archival. A document, an e-mail, a database record created today can have archival value today. If a piece of information contains evidence, and if that evidence has enduring value, then that piece of information is archival.

In a digital age, pigeonholing information, records or archives by applying outdated definitions puts at risk a large portion of the evidence needed to allow government to account for its actions. I encourage you in your review of FIPPA to be very thoughtful in your understanding and articulation of what actually comprises the information component of access to information.

Whether we talk of records, archives or information, I believe that the government’s responsibility ought to be to create, manage, preserve and make available evidence in a consistent and accountable fashion, regardless of its form.

This misperception about the nature of evidence opens up another challenge I believe you should address. A fundamental flaw with virtually all access legislation is that these laws say, in essence, that if a government agency creates a record, that agency has a responsibility to make that record available for public scrutiny if and when asked to do so, while protecting privacy, official secrets or other conditions. Access legislation does not require government agencies to make a record, to capture evidence, in the first place.

The absence of this requirement to capture evidence as a matter of course is a gap in British Columbia’s legislative framework, one I have seen in many other jurisdictions in Canada and internationally. I am not really convinced that access legislation is the right forum for dictating record-making requirements. I see this task more appropriately within the purview of records- or evidence-oriented legislation.

I know that the new Information Management Act, which will replace the long-inadequate Document Disposal Act, will start to come into force in 2016. There is much that is good in the new act, including the creation of the position of chief records officer, which I hope will increase government accountability around recordkeeping. But despite attempts to do so during the development of the bill, the Information Management Act does not include a provision for requiring government agencies to create a record in the first place.

This duty to document, as the Information and Privacy Commissioner recommends in her October 2015 report, Access Denied, is essential to thwarting the “no record” oral government that appears to have become more the rule than the exception.

I hope that the committee will take steps, in revised access legislation and other legislative and regulatory tools, to require government officials not only to make records available if they have them but also to create accurate and complete documentary evidence in the first place.

I recommend that you look at examples such as the State Records Act of the government of New South Wales. This act requires government officials to “make and keep good records.” Specifically, the act requires government to make and keep full and accurate records, look after their records, ensure that their technology-dependent records remain accessible, only destroy records if State Records, the equivalent of our B.C. Archives, says they can, and transfer to State Records those records identified as state archives.

A legislative requirement such as this in British Columbia would give the new chief records officer, who I assume will work closely with the B.C. Archives, a critical oversight role, ensuring that accurate and complete records are created, managed and made available. It would compel government agencies to restructure the way in which they capture evidence, providing a stronger accountability framework.

One of the challenges, though, with making and keeping good records is that government officials are busy struggling with all the records they create right now using outdated systems and processes. The Information and Privacy Commissioner’s recommendation that government should provide mandatory records management training is a point well taken. But that training should be based on a new risk-based approach to creating and capturing evidence, not on outdated recordkeeping practices.

Typically, the process for managing agency records starts by considering what jobs are done, what records are created to support those jobs and how long those records ought to be kept. This is, I believe, a faulty premise, one that opens the door to inconsistent, idiosyncratic recordkeeping. Sometimes government officials don’t create enough records, sometimes they create far too many, and often they don’t create good records — records that are complete, accurate and reliable evidence.

A risk-based approach starts by looking at the goals, objectives and risks associated with the particular re-
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sponsibilities and activities of a government agency. Questions are asked such as: what actions or objectives are you attempting to achieve? What are the risks associated with your work, to the government, to the public, to the environment, to public safety, and so on?

Based on this analysis of actions, objectives and your risk profile, what evidence must you capture in order to ensure that you can accomplish your objectives and provide accountability for your actions? What other evidence or information should you capture, and how should those various sources of evidence be managed to support efficiency, effectiveness and accountability?

This risk-based approach recognizes that some government actions or objectives have a greater impact on the lives, health and welfare of citizens and the public than others. Those high-risk actions must be documented well and fully. Lower-risk actions may demand less onerous record-making and recordkeeping, though the instances where no evidence is required, even if only for a short time, should be limited, at best. Government accountability can only be tested through access to evidence, which means that evidence must exist in the first place.

Reframing the act of making and keeping good records adopts a risk perspective that allows government officials to identify the core records they must create, followed by the records they should create and those they may create, in relation to different responsibilities. Management, retention and access decisions can then be made accordingly.

This risk-based approach to records creation also allows another step towards greater openness and accountability. I believe that rather than focus on a reactive access-to-information model, governments should adopt a much more active, open model. Why not routinely make available as much evidence as possible rather than wait for the public to seek specific records through a limited routine-release policy and an increasingly and sometimes unnecessarily backlogged regime of access only when requested?

If a piece of evidence — a memo, a report, a database — addresses a high-risk matter, is deemed to be essential evidence of actions, transactions and decisions, that evidence ought to be created in the first place with both accountability and accessibility in mind. That means considering how that evidence is actually created. What information must be included in a record to ensure completeness and accuracy? How can personal information be captured so that it provides good evidence but can be redacted easily, as required, to protect individual or other privacy rights? When and how can that record be published so that it is available to the public by default, not only on demand?

Open government can save time and money as well as improve trust in government if the processes for creating records in the first place are designed to support both accountability and access.

I also think that government officials need to be held to account, and not just when criminal activity is suspected. Civil service codes of ethics and standards of practice should specifically require the effective creation, management and dissemination of evidence.

Performance reviews for all levels of government, including senior managers, should include an examination of recordkeeping and information management practices as well as access practices. Penalties should be imposed if records and information systems and processes are not sufficiently robust, if delays in providing access are unacceptably long or if the public appeal process reveals that initial responses to access requests were not adequate.

To ensure government officials are equipped for this responsibility, training and awareness-raising in record-making, recordkeeping and access administration should be mandatory, ongoing and cumulative. It is not enough to offer an orientation to records management on day one and declare that task “done and dusted.”

We are very lucky that the British Columbia government can draw on an extremely competent, well-educated, dedicated team of records, information and archives professionals in the B.C. Archives, the government records services and in ministries and agencies across government.

Too often people assume that records management is no big deal and that technology will solve the problem. It is a big deal, and it takes more than technology to get it right. You have at your disposal qualified professionals who can help, and I hope you will draw on their expertise, not only for this review but also for the implementation and administration of records and information systems and for training across government.

As mentioned at the start of my remarks, I see this current crisis in government access and recordkeeping as an opportunity, particularly for my government to change the culture surrounding information and evidence. Let me end my remarks by articulating my vision for that new culture, a vision that hinges on this more robust approach to records, information and archives management.

My vision is that I will live in an enlightened, civilized society, one that is democratic, respectful and self-aware. For my society to be civilized, democratic, respectful and self-aware, it needs a memory, a collective consciousness born out of unencumbered access to the evidence of the communications, actions and transactions of its members, from the government to the governed, from formal institutions to people on the street.

In the society of my dreams, my government recognizes that open and easy access to records and archives — to evidence — supports democracy, transparency and accountability and helps foster a sense of personal and collective identity. My government, therefore, protects and makes available documentary evidence, information, records and archives in order to support accountability, identity and memory.
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I don’t just want government officials to make and keep good records. I want everyone in society, from school children to corporate executives, to see records and archives as an essential part of the fabric of our lives — not just for heritage and culture but as sources of accountability, identity and memory. I want people to know when to create records, when and how to keep them, and how to share them responsibly. But my vision will take a significant shift in culture.

We have made that shift before, though. How many in the room today would think about tossing a coffee cup, a plastic water bottle or a used newspaper in the trash can instead of in a recycling bin? We just don’t do that anymore. Recycling is a given. The phrase “Reduce, reuse, recycle” trips off the tongues of kindergartners. When we see a little triangle on our plastic water bottle, our milk jug or our box of printer paper, we automatically think “recycle.”

It was not always thus. It took a concerted effort between governments, corporations and civil society to change the culture, developing legislative and regulatory frameworks, implementing infrastructure changes and raising awareness, all with the goal of making recycling effective and sustainable.

Today, in our part of the world, at least, recycling is largely seen as a necessity, not a luxury. I know we’re a long way from unqualified success, and recent news stories about coffee companies not recycling as promised remind us that vigilance is key.

Still, the model of cultural change bears consideration. Today when we see a little plastic triangle, it speaks volumes to us, as does the line at the bottom of our e-mails that reads: “Before printing, think of the environment.” I want to see our society transform so that people appreciate the value of evidence for accountability, identity and memory, just as they appreciate the value of recycling for the environment.

I want to create a culture where people get it when they hear the record-keeping equivalent of “Reduce, reuse, recycle.” The message I want to convey, the words I want kindergarteners to repeat to their parent on the way home from school are these: remember, respect, record. What if, when a government official sends or receives an e-mail, there’s a line at the bottom of the message? And what if, instead of saying, “Before printing, think of the environment,” it said: “Before deleting, think of the future”?

Wouldn’t that be a marvelous change? This change will take hard work, and it will require all of us — governments, corporations and citizens — to come together in a shared desire to create a society that respects the value of accurate, authentic documentary evidence and which works to ensure this evidence is available as widely as possible.

The goal of access to information, of an open and accountable government, should not be just to answer access questions. The goal should be to support accountability, foster personal and community identity and nurture individual and collective memory through the effective creation, management and use of government information and evidence.

I believe that fundamental change is essential. Reviewing and revising FIPPA is an important piece, but we can do even more. I urge you to think about how your work on this committee and as government representatives and engaged and thoughtful citizens can help foster this future I imagine. I hope my remarks are helpful in your work, and I thank you for your efforts on behalf of the citizens of British Columbia.

D. McRae (Chair): Thank you very much. Your time on the Sunshine Coast has not changed your punctuality whatsoever. You got it almost exactly to 20 minutes.

It is now time for questions, if committee members so ask. I’m just looking on both sides, and I see Kathy, and Doug as well.

K. Corrigan: Sure, I have a couple, but I think I’ll just ask one. If there’s time, I’ll ask another.

I’m interested: have you looked at jurisdictions around the world? You did cite another jurisdiction. Have you looked at jurisdictions to see where the split is between the duty to record, the duty to document and those types of duties, as opposed to the freedom of information? Do you have any comments about…? Are there jurisdictions where it’s all in one act? And when you’re talking about these duties to record, should it be in the freedom of information, or does it matter?

L. Millar: I think it does matter. The history of it is that it’s never been linked. Access legislation, when it came in, never took into account the idea that you had to require records to be created in order to make them available. It assumed. Going back in the Canadian situation, to a paper-based environment in the 1980s, it assumed that those records were being created and managed.

There are not many jurisdictions yet that have created the duty-to-document requirement. Australia is one of the leaders. England is working on it. But I think it is better placed in robust records legislation. That would manage the entire gamut of records creation, management and storage. Then access legislation, to me, is, with all respect, a subsidiary, which is: once you have done all of this to manage those records, now one of things you must do is make them available. That would be under access legislation.

I think another thing…. We have, as I said, had a very weak records regime in British Columbia, with a poor Document Disposal Act instead of a proper records legislation. I think the Information Management Act is a step in that direction, not anywhere near far enough.

I think what has to happen is that records legislation needs to be decoupled from the physical archival institution. I credit a dear friend and student here who is doing her PhD, Elaine Goh, who is with me today, who has been doing research on legislation around the world and who talks about decoupling the actual records act from the archives as an institution.

It’s really a refreshing view of it. You’ve, I think, taken the 35,000-foot-level view of change in culture but also made some very practical recommendations as to how that might happen in comparing “Reduce, reuse and recycle” and all the mechanisms that were there to encourage people and teach people how to do that.

I’m really interested in what you had to say about the efficiency of recordkeeping, archiving in a way that predicts the challenges of access, creating the ability in a document to easily redact personal information and still release the pertinent information that’s being requested. I think that’s one of the most key aspects of what we need to consider.

Information and Privacy Commissioner Elizabeth Denham’s expertise is weighted towards that archiving. But it is a challenge. In the last review, we did hear that training in the ranks of the bureaucracy is a major issue in satisfying even the present demands of the act. It’s challenging and, probably, costly in order to achieve the kind of training that you’re recommending, but I don’t see how we can progress without it.

Do you have any ideas as to not only the efficiency of the recordkeeping and moving it from document to document in a standardized way but the training itself from ministry to ministry, from agency of government to agency of government? Do you envision a reasonably efficient and relatively achievable…?

Part of the problem is that technology has to be addressed as well. One of the things we as a profession are working on is working with the developers of software technologies to make the automation of this easier. One element is getting the technology to work, the other is getting people trained so they know how to cope, and the other is changing the practices.

I guess what I would recommend is a risk-based approach to my risk-based approach, which is to target either high-risk or — I hate the phrase, but there you go — quick-win areas, where you say: “We can get this change, and by getting this change, we can start to change the culture. We can build on that to the next change and the next change.”

The approach with records creation in all of government and in all governments is that everybody does it the same way and for the same reasons, but it’s all completely different. What you need in the Ministry of Children and Families is completely different from what you need in the Ministry of Tourism. They are completely different levels of risk.

I would be doing a very high-level, 30,000-foot strategic look at where the huge pinch points are, where the crises are or where you might get success and say: “I’m going to target this and this and this.” Get good people in to do training and train the trainers and have ongoing collaborative groups, consultative working teams who can get together over bag lunches to say: “We need to stay on top of this and continue the message, the change of culture.”

I would not recommend a sweeping: “The whole government will do it this way all at once.” At a policy level, perhaps, but not at an operational level, because you will be defeated before you even begin.

K. Corrigan: One of the issues that has come up in the Legislature is the nature of transitory documents and what should be kept. I’m just wondering if you have thoughts about what it is that needs to be preserved, particularly in the day-to-day interactions that people in government have or don’t have, apparently. Can you give us some idea of what the guidelines should be for you?

L. Millar: I think the issue with transitory is that your transitory is my critical. It is a moving target, and people misinterpret it because they don’t understand. They’re not records professionals, and we don’t expect people doing operational work in government to be records professionals. That’s why you have records professionals.

Everybody creates records, and everybody manages records. It’s like trying to have a memory. You can’t tell somebody else how to remember something. What I think is that if you can structure the management of high-risk records so that there is a more formalized approach for that, it will actually make people’s work easier.

If they say, “Oh, I have made a decision, and this kind of decision demands that I create a record,” that record can be — it must contain — name, date, core of information, other elements that it has to capture. It can’t just be, “Yes, I approve,” on an e-mail. It needs to be within the context of: approve of what?

Transitory needs to be defined very specifically. People need to be trained around that, and I think we need to, again, change what records must be made and how by virtue of what you’re trying to achieve. Then I truly think that the issue of transitory will become much easier. People will be starting not with, “Is this transitory?” but with: “Have I created the evidence of my decision?”

Then what does that look like? Instead of saying, “I have a sticky note that proves that I’ve made the decision,” say: “No, that’s not adequate. You have to docu-
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ment it in this way, in this form, and put it away and store it in this way.”

It’s taking away transitory, not starting with the point of, “Let’s figure out transitory,” and saying: “Let’s figure out critical.” Then transitory will evolve.

D. Eby: In the New South Wales context, is there a transitory document regime? It seems like if you wanted to pick through your e-mails and delete things you don’t think are relevant, you don’t get to do that. You have to write to this third party and say: “Do I get to delete this or don’t I?”

L. Millar: No, no. It’s based on…. Once you get past the legislative level, then what we would have in all of the departments or ministries would be records classification, retention and disposal structures that say: “Based on this, we are now going to define what records we know you’re making, and we’re going to give you a records storage system” — say, an electronic document records management system. Those are really old school, and we should get away from them.

And then say: “At your level, we’re going to define what you need to keep, and then your transitory will be part of that. It’s up to you, within your own organization, to make those decisions. We’ve set the policies.” People, in their departments, just carry on with business as usual, but they have started from the point of having created a framework for knowing what they must create, should create, may create.

D. Eby: You seem to have some knowledge of the technology available. We’ve heard that one of the issues is, obviously, storage in relation to e-mails. There might not be enough space to store all of the e-mails. Therefore, the ministries were doing a helpful turn to IT by deleting all of their e-mails.

Can you give us some insight about e-mail archiving and storage and the capacity of…? Let’s say that we created a duty to document, to keep records. Would we be shutting down the IT of the government?

L. Millar: There is no digital storage problem. There is tons and tons. The problem is there is too much capacity to store, so everything can be kept. I think the worst disaster would be to keep everything, because then you can’t find anything.

The technology can manage this. Unfortunately, what has happened, I believe, is that too much effort has been put into creating rigid records systems which serve records professionals, but they don’t serve people doing their daily job. What we need to do is strip out some of that complexity and say: “Okay. You’re working on this job. These are the core records you have to have at the end of that process. They’re going to go into this system, and we’re going to make sure that they are safe. They include some e-mails, and you just push a button and transfer it.” It is possible.

Storage, by itself, is not the problem. It is the storage of unidentified and unclear records with titles like, “In response to yours,” or: “As per Friday.” That’s where the change needs to be. Put the structure into how the record is made so that then you can say, by virtue of tags in the system or metadata that’s added: “This record is related to this issue. It is of this level of risk, and it can go. This record is related to this issue. It’s high risk, and it must stay.”

The concern I have, the experience I have, is that we turn to IT people to solve what is an IM problem. Technology is just the tool. What we’re trying to do with technology is solve the issue of managing evidence. The people who know how to do that and have the answers are often not even in the room.

When somebody says, “We have a storage problem,” I’d say: “Well, you do because you’re keeping a lot of garbage.”

D. McRae (Chair): Well, thank you very much, and thank you very much for the Q and A at the end of it, and good luck on your trip back to the Sunshine Coast.

I invite the Canadian Bar Association, British Columbia branch, to come to the presentation table. When you’re ready, just give me a head nod or whatever signal you wish.

It is now 10:41 and, as per our style here, 20 minutes for the presentation and ten minutes for questions and answers. Good luck, and off you go.

S. Levine: Good morning. I’m Sara Levine, and beside me is Ryan Berger. Just to clarify, we’re lawyers who practise information and privacy law, and we regularly act for a variety of individuals, organizations and public bodies. But in making these submissions, we are acting only on our own behalf, and we speak only for ourselves. We’re not here as representatives of the bar association. We’re making these submissions purely in our personal capacity.

We are participating in work being done right now by members of our privacy and freedom-of-information section of the bar association of B.C. Those submissions will be filed in the coming weeks. But for today, we are simply presenting some of our own opinions and views.

We’re going to be addressing four topics in these oral submissions, and then there’s an additional topic that’s in your materials that we’re not going to address in oral submissions today. I will be addressing the first two. I’m going to be speaking briefly about our suggestion to create an office of a provincial privacy and information access officer and a smaller issue of creating a duty to make available, to the public, information about how to make a request for access.

Mr. Berger will be speaking about amendments that we recommend to be made to section 14 and an issue
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that addresses questions of scope in answering an access request and distinguishing between records and information.

It’s long past time that the province of B.C. had a provincial privacy officer tasked with the responsibility for establishing policies and guidelines for the government to protect privacy. This is not a new opinion. Successive committees have heard submissions to this effect, and the 2010 special committee recommended that the government appoint a chief privacy officer.

However, in our submission, in this current climate, more is required. We submit that what is needed today is a chief privacy and access officer, a single individual who is accountable for both privacy and for ensuring that the government has policies and procedures to ensure that access to information rights and obligations are consistently interpreted and well understood across government and can be met.

Currently responsibility for privacy governance sits in the privacy and legislation branch, within the office of the chief information officer for B.C., the OCIO. The OCIO is described on its government webpage as an enterprise organization for the B.C. government. Its mandate is to “create and maintain information management and information technology strategies, policies and standards and to provide information technology infrastructure services that enable cost-effective, citizen-centred services.” The vision of the OCIO is “the modernization of the B.C. government and its workplaces and services for the benefit of all British Columbians.”

Nowhere in this mandate is privacy mentioned. Nothing in this mandate or vision would suggest that information privacy is necessarily part of its scope.

The information access operations branch in the Ministry of Technology, Innovation and Citizens’ Services, as well, has responsibility for receiving and facilitating responses to requests, publishing responses and providing records management support.

That is a separate agency, and again, the separation of these two agencies can create challenges when what really is necessary is bringing a single lens across government to these two issues because they are so closely related and because they are dealt with under the same piece of legislation.

The other issue that we find is that there is no clear accountability or responsibility at the ministerial level, in that nothing in the mandate letter for the minister addresses government privacy or information access. Nothing in these higher-level, senior-level authority and accountability provisions specifies that these issues have been elevated to that level.

Now, of course, the IAO and the PLB issue a substantial amount of guidance in policy and have undertaken some training and outreach efforts across government. But what is needed somewhere visible is some individual role that is explicitly accountable for these issues, and today we don’t have that in British Columbia.

Now, to be clear, the Office of the Information and Privacy Commissioner for B.C., as a regulatory and oversight body, has a different role. That office is not, nor should it be, responsible for the internal compliance of government or of public bodies. Yet in the absence of adequate information and privacy governance carried out from inside government, the Privacy Commissioner has been increasingly forced into the position of advocating for specific operational behaviours or methods in order to ensure compliance.

There’s a perceived necessity for an increasingly prescriptive approach. This is leading to a model of public sector compliance which is inconsistent with the model on which private sector privacy law is based, and it’s leading to contradictions in the way privacy and information access is managed across the public and private sector and confusion and disappointment in the public mind.

In the private sector, the model is technology-neutral and principles-based. The goal of private sector privacy law is to provide sufficient flexibility for organizations to develop compliance programs that are relevant to them, practical for them and can be adjusted to account for technological advances.

We submit that the creation of the role of a chief privacy and access officer who is granted some authority and reports to the minister would promote the advancement of internal compliance programs, enabling government to take into account their particular operational realities that would facilitate flexibility and better ensure compliance.

A chief privacy and access officer could be responsible for acting independently but reporting to the minister for ensuring that government demonstrates its intention to be accountable. This would be a demonstrable effort to increase accountability, and that would promote and enhance the public trust.

We submit that one way of thinking about this is that the role of the chief privacy and access officer could be modelled on the role of the provincial health officer. That is a senior public health official for the whole province.

That official is responsible for, among other things, independent monitoring of public health, providing independent advice to the minister and to public officials on health issues, establishing standards of practice and working with medical health officers to help them fulfil their legislative mandate in a collaborative way to promote and protect public health. The provincial health officer is required to report annually to the minister, and the minister must lay each report before the Legislative Assembly.

A similar model, in which a provincial chief privacy and access officer would be the senior official responsible for privacy and access to information compliance for the provincial government and specifically accountable to the minister, could be a workable solution. This officer could be responsible for independently advising
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the minister on these issues, establishing standards of information access management and privacy protection and working with ministry chief privacy officers — I understand that regime is being set up as we speak — and other public bodies to help them fulfil their requirements.

Now, there is a lot of this type of work currently being done in the IAO and the PLB. But the challenge there is that those two branches lack a public identity. They lack public visibility. There’s no single leadership point, and they lack the profile that a single officer would have.

The chief records officer, which is obviously, as we’ve just heard, created under the Information Management Act, has a mandate that might overlap to some degree with a chief privacy and access officer. But the focus of that role is predominantly one of records management, information preservation and archival management, as we’ve heard. We’ve also heard that nothing in that act specifically addresses privacy or access obligations.

We would propose that the chief privacy and access officer’s mandate could include, among these other things, a duty to work cooperatively with this chief records officer, and perhaps with the OCIO, to develop clear information schedules and technology that would facilitate the creation, retention and access to information and the protection of privacy rights.

It would also provide a lot of clarity in respect of the different roles of these different senior officers in government, in respect of the oversight and regulatory role of the Office of the Information and Privacy Commissioner for B.C. in particular, because a chief privacy and access officer would be responsible for and accountable to the minister for guiding the internal and operational compliance of the government.

So our first recommendation is to amend the act to establish an office of the chief privacy and access officer, which would be an independent official tasked with specific accountabilities and reporting to the minister.

We also propose that a duty should be created to make information available to the public about how to exercise the right of access to information. This is a more specific tweak to the act, really. It’s because we believe it’s in the public interest, where reasonable and sensible, to align the private sector and public sector privacy and access-to-information legislation. Under the PIPA, for example, organizations have a duty to make public information about the position, name or title and contact information of the person in their organization who’s responsible for privacy. There’s no similar obligation on public bodies under FIPPA.

We believe this has given rise to a real imbalance between the two regimes. Private sector organizations typically comply with this obligation by posting something on their website about who to contact, the chief privacy officer and the contact information. It’s a very common practice, a very simple fix. In that way, individuals know where to address their concerns. In the public sector, this is not the case. Individuals have a much more difficult task figuring out where to send a request for access to information.

I did an informal review of the websites of some major public bodies over the last couple of months. I found that there was a really very wide inconsistency in how they publicize information about how to make an inquiry about privacy and access. Some of the largest tribunals, Crown corporations and agencies in the province have no information posted on their websites at all about how to make a request for access to information. Others have some, but, in many cases, the information is quite difficult to find. I phoned a few of these agencies, and the receptionists, in some cases, could not answer a very simple question: “Where should I send my access-to-information request?”

We know that the purposes of FIPPA are to make public bodies more accountable to the public, to protect personal privacy by giving the public a right of access to records and giving individuals a right of access to, and the right to request correction of, information about themselves. These rights are not meaningfully protected when basic contact information required to exercise them is buried in a multipage website or not available at all.

The duty to assist under section 6 is only triggered when a person becomes an applicant. It is a duty to assist applicants. It’s very difficult to become an applicant if you don’t know where to send your request. The failure to make this kind of information available, although it is entirely in compliance with the act, is really inconsistent with the primary purposes of the legislation and with the spirit of the duty to assist.

It would be a simple fix to establish this duty, and it would assist public bodies to comply with time limits, because if an applicant knows clearly to whom to address a request, there is less risk that the address goes to the wrong place or sits on someone’s desk, misunderstood.

This can happen in large organizations, and it can happen in smaller and less sophisticated public bodies. The ensuing delay and the inexperience can create substantial additional and unbudgeted costs for public bodies. It would also have the benefit of requiring every public body to give some consideration to who would fulfil that role, which might, we suggest, potentially prompt the public bodies to provide that person with some training. Even more importantly, it would support and enhance the public’s right of access to information by ensuring that the public knows to whom a request or inquiry would be directed.

Our second recommendation is to amend section 6 to add a duty to make publicly available information about how to exercise the right of access. At minimum, this duty should require a public body to publicize the role, name or title and contact information of the person at the
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public body who is responsible for receiving requests for access to information and other inquiries about access and privacy rights.

R. Berger: I’m going to address a couple of specific issues relating to the language and interpretation of the act, first beginning with section 14 and the discretionary exception to access subject to solicitor-client privilege.

Our view is that this exception is too narrow to adequately protect the long-standing and well-established rights of litigants and other parties who have legitimate interests in protecting various types of legal privilege. We submit that the section should be amended to ensure that all types of legal privilege are protected.

There are two types of legal privilege that are not specifically mentioned under section 14. As it stands now, our Information and Privacy Commissioner has said that solicitor-client privilege encompasses two types of privilege found in common law — first the legal advice, solicitor-client privilege, and also litigation privilege, which applies to communications and material brought into existence for the dominant purpose of litigation.

I’ve cited some Supreme Court of Canada authority in the material. The law has developed to recognize distinct types of privileges, solicitor-client privilege being one of them, litigation privilege being a separate type of privilege and settlement privilege being a third separate type of privilege. I’m going to address the other two. The Supreme Court of Canada has said that these are distinct conceptual animals, not branches of the same tree.

Solicitor-client privilege, the one that’s expressly noted in the act, applies only to confidential communications between a client and their solicitor. That privilege exists at any time, regardless of whether litigation is involved. It isn’t time limited, and it protects the client’s interests in obtaining legal advice.

Litigation privilege is different. It is not directed to or restricted to communications between solicitor and client, and it may be time limited. Its object is to ensure the efficacy of the adversarial process and not necessarily to promote the solicitor-client relationship. The Supreme Court of Canada has said that litigation privilege is no longer considered a type of solicitor-client privilege.

We have a situation in British Columbia, under the language of our act, that I think binds interpretation to some degree. We need to update it, first to include litigation privilege expressly, so our commissioner and our courts don’t have to tie themselves in knots to include litigation privilege, and also to include settlement privilege. Settlement privilege is a privilege that allows parties to be open and frank in their settlement negotiations about respective strengths and weaknesses in their claims and ensures that communications made in the course of negotiations are protected.

Doing this would assist the public policy goal of encouraging parties to settle their legal disputes. It’s a type of class privilege that protects any settlement negotiations, whether successful or unsuccessful, and applies to the settlement outcome.

In a decision issued earlier this year, following some previous decisions, our Office of the Information and Privacy Commissioner concluded, by an adjudicator, that solicitor-client privilege does not include settlement privilege and did not extend settlement privilege as a protected ground under section 14. We are at odds with other legislation across Canada in that regard.

I’ve included examples under Alberta, which has some different language. I’ve put in the language on page 14, which includes permissive protection to any type of legal privilege, including solicitor-client privilege or parliamentary privilege. And the Alberta Court of Appeal has included settlement privilege in that language.

In Ontario, as well, they expressly include solicitor-client privilege or “prepared by or for Crown counsel for use in giving legal advice or contemplation of or for use in litigation.” The Ontario courts have observed that that privilege also extends to settlement privilege.

D. McRae (Chair): Ryan, I do notice that it is now 20 minutes into the presentation. Committee members may wish to ask questions. I know you’re not completed yet. I can ask committee members if they wish to waive the right to ask questions for a few minutes and then have you finish up. If they wish to ask questions, that would take precedence, though.

So at this time, committee members, would you like to have them continue in their presentation?

D. Routley (Deputy Chair): I’d definitely like a chance to ask one specific question, if time can….

D. McRae (Chair): Ryan, if that’s okay, I’ll give you three more minutes, and then we’ll stop and have time for questions.

Just wrapping up section 14, we think that it’s important to include settlement privilege to encourage settlement by and with public bodies. Frankly, my expectation is that if this is not a protected privilege, public bodies will more often choose to have their disputes adjudicated, for fear that the negotiation process itself will be unduly scrutinized. Ultimately, the outcome of litigation will be subject to public scrutiny, but the discussions right now in British Columbia won’t be, and that is important for public bodies and the public good.

Finally, with respect to our submission on records and information access rights, this is something that, surprisingly, has not come up in 20 years of our legislation, and that is the scope of access to records. What I think the
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nub of our point here is, is that under a recent decision on this point by our commissioner, the result is that public bodies are faced with the prospect of having to review and produce records with more information that’s irrelevant to a request than relevant. There are a number of significant negative effects to that decision and the interpretation in our act.

We recommend a change that permits, with a request for information — which, I think, more closely aligns the act with what the public thinks it is — the ability for public bodies, in the right circumstances, to provide meaningful access to information that is subject to a request and not have to provide irrelevant records or portions of irrelevant records.

I know, Doug Routley, you had the first question. Then we’ll keep moving around the table.

D. Routley (Deputy Chair): Thank you for the presentation. On the issue of litigation privilege, in order to protect the information of a client, is it true that now if a solicitor recommends a consultation, a medical consultation or a counselling consultation, that would be privileged or not — the records and information from that?

R. Berger: I would say that the recommendation by the lawyer to their client would be privileged. I wouldn’t necessarily think that the report, for instance, of the medical specialist would be privileged under solicitor-client privilege.

If an individual goes to their medical specialist and gets consultation for the purposes of litigation, then that might be covered by what, in the law, we call litigation privilege. One of our points is that that ought to be specifically incorporated into the legislation.

K. Corrigan: One of the concerns that we’ve heard expressed — not today — is the possibility that lawyers will be engaged for the purpose of avoiding access to information — that once a lawyer becomes involved, then there’s solicitor-client privilege.

How do you address that concern but also the possibility that if you widen the types of legal privilege — including, for example, litigation privilege — you are not, at the same time, creating a very large body of information that will become protected? I don’t know if there are decisions on this.

Do you do that by then saying that within the involvement of that individual, it has to be determined or demonstrated that that is the function that that person is involved for; by saying it has to be when they are involved in litigation, in negotiations, in providing legal advice so that you don’t have organizations simply involving a lawyer so that they can then create this dome of lack of access?

R. Berger: Yes, there are specific legal tests for each of those three types of privilege. Similarly to private sector law, as it applies, anyway, and privilege in the private sector, those tests would apply. Any organization, I submit — whether public or private — ought to have the protection of appropriate privilege. Just the involvement of a lawyer does not necessarily…. The involvement of a lawyer does not satisfy the legal test for privilege. They’re much more specific and fact-based.

D. McRae (Chair): I want go to David Eby, because we are short of time, and then if there’s time, I’ll come back.

D. Eby: I have some questions about privilege, as well. I hope there’s time to address them.

This question relates to access requests that may have unrelated information in the records. One of the challenges that this committee has heard about from almost every witness, I would say, is not a narrow interpretation of the exemptions for providing information but a rapidly growing scope. Whether it’s a transitory record or whether it’s a private company or a wholly owned subsidiary, it’s understood very widely about the exemptions to provide information.

The suggestion that this committee would then say — in a judgment call, when someone’s providing a record — that they would be allowed to sever out, as they are under the act currently, a piece of information, to say: “This isn’t related to your request. We’re not providing it to you.” My suspicion is that that’s done quite aggressively, and it may be tangentially related. If it were a discovery matter, you might get it. But under the act, it’s severed out as unrelated to the initial request.

The suggestion that’s been put to this committee is: don’t have people waste their time cutting out unrelated information. They’re probably not doing it properly, anyway. They’re probably expanding the scope of unrelated information to avoid sending out extra information to an applicant.

Why not just say if it’s in the record, just leave it there. It’s public information. The person had a right to it under the FOI request. Instead of having them sever out unrelated information and then have a separate appeal about whether or not it was unrelated or a separate request for that additional information once the person realizes the record request, just leave it there.

Send it out to the public. They have a right to it. I don’t fully understand the argument about why the suggestion that the commissioner’s decision here about unrelated information is a problem. In fact, it seems to be far more
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efficient in terms of responding to the public’s right to public records.

R. Berger: The challenge I see is that when I work with public bodies who are diligent and want to be diligent with respect to their responsibilities under the legislation when they’re looking at the irrelevant information, they still have to parse through it to determine whether some of the other exceptions apply — particularly, personal information, but other information about the business of the public body that may legitimately and ought to be protected under the other sections. So the challenge is they’ve got to go do that analysis, and they can’t just say: “Here it all is, and the onus is on you, public — or some other body — to excise personal information about third parties that shouldn’t be in there.”

What I’m suggesting is it will take significantly less resources for a public body to be able to identify what’s totally irrelevant and excise that than have to parse through, consult, dig deeper into: what is this? Does it actually qualify under section 13, policy advice or recommendations? What are the circumstances? Let’s gather together all the individuals that were involved in this train of correspondence to figure out whether it qualifies or not.

If that policy advice is totally irrelevant to the request, then it’ll be more efficient for the public body, take less resources and the applicant will receive the information in a more timely way — the information that they want to have.

Since the other exceptions are going to apply anyway, if the applicant is not happy with what’s excised, they still have the same processes in place that they would be able to challenge that excise under the other sections.

D. McRae (Chair): Thank you very much. Thirty minutes has come to an end very quickly, but much appreciated.

D. McRae (Chair): Twenty minutes for presentations and then ten minutes for questions from the committee members.

R. Botterell: Great. Okay. I have my own stopwatch here so I don’t go over time and get in trouble.

D. McRae (Chair): Perfect. I’ll also give you, if you’d like, a two-minute warning before you get to your 20 minutes. It’s 11:14, and the floor is yours, sir.

R. Botterell: Good morning, ladies and gentlemen. Thank you for allowing me to make a presentation today.

In the course of this presentation, I’m going to set out how you can save $50,000. I’m going to also ask you to think about where you were on November 3, 1993. I’m also going to highlight the importance of a Chevrolet Camaro to freedom of information in British Columbia.

I’m not going to sugar-coat this. I think that we’re five years out from the last time I made a presentation on the act. My current presentation is entitled Freedom from Information and Protection of Privacy. Rather than repeating the presentation I made five years ago, I’ve included it in your kit. I highlighted, at that time, the ways in which freedom-of-information rights in the province have been eviscerated and identified the changes that would be needed to keep the promise of open, transparent and accountable government made by a unanimous Legislature in 1992.

From my vantage point…. I was the senior public servant responsible for developing B.C.’s Freedom of Information Act, and I was the director of the information and privacy branch when this act was implemented. Five years has passed, and there’s really been no meaningful progress made. There is a culture of secrecy, opacity and unaccountability prevailing.

Whether it’s triple-deleting e-mails, keeping no records, using communication channels not covered by FOI, absolutely stupendous delays in response and chronic underfunding of government FOI functions in the Office of the Information and Privacy Commissioner, it’s clear that there is no culture of openness, which was the promise made by the Legislature unanimously in 1992.

I can only conclude that the B.C. Liberal government finds real freedom of information highly inconvenient. However, like Premier Christy Clark, I am, at heart, an optimist. Although it may take much longer than I would like, I am optimistic that the public will ultimately say that enough is enough and insist that political spin, avoiding embarrassment and controlling the message must no longer guide information release. We’ve recently witnessed this change in approach at the federal government level.

In the meantime, efforts continue to seek disclosure of records related to many important matters, including the controversial $8.8 billion Site C dam, which is the largest public infrastructure project in B.C. history. On behalf of clients, we’ve sought release of this information under section 25 of the act, the public interest paramount provision.

I want to take you back to 1992. Section 25 was meant to be the check and balance that would come into play where critical matters came before information and privacy departments and ministries and where the public interest was judged paramount and the information should be released without delay.

It’s over 100 days since we made the request in July for disclosure of Site C information under section 25.
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Coincidentally, it’s just over 100 days since Site C construction started.

The problem with the application of section 25 is no longer an overly narrow interpretation because the current commissioner has addressed that. It’s the ability of the Office of the Information and Privacy Commissioner to respond in a timely manner because they are chronically underfunded.

I think Site C also illustrates the types of issues that face those who seek information from government, even before we get to section 25. In your kit, I’ve included our letter, dated July 20, to the commissioner seeking section 25 disclosure. I just want to refer you to that. In that letter, we also set out the delays that were experienced in the first go-round.

We made the request for Site C–related information on January 9, 2015. After a significant delay of six months…. The Ministry of Finance breached its statutory deadline and took all the extensions it could. Then, ultimately, we claimed “deemed refusal.” That means it takes so long that it’s gone beyond all the deadlines. We had to involve the Office of the Information and Privacy Commissioner.

We received records on July 8 and found that critical information was blacked out. Then we sought section 25 disclosure, which we’ve now been waiting on for over 100 days. Access delayed certainly is access denied. That’s exactly the position we find ourselves in right now.

I guess the other interesting part of this is that the information we received from the Ministry of Finance was similar in some respects to information…. Well, some of the documents were identical to documents we received from B.C. Hydro. In the case of the Ministry of Finance, they managed to black out a whole bunch more than B.C. Hydro.

Why is Site C unique? Because it has been exempted from expert, open and independent Utilities Commission and Agricultural Land Commission review. Those types of reviews form a fundamental framework in our democracy, a set of checks and balances that shouldn’t be bypassed. They were here. So we rely even more than we normally would on section 25 as the basis for obtaining access so that the members of the public can assess for themselves the basis and justification for proceeding with Site C.

Indeed, the only energy agency to examine Site C that is independent of the proponent — B.C. Hydro and its sole shareholder, the province — was the Environmental Assessment Joint Review Panel.

Dr. Harry Swain was appointed to chair that panel and was appointed jointly by the provincial and federal governments. He concluded that the panel had neither information, time nor resources to comment on the accuracy of cost estimates put forward, that the need for Site C had not been proven and that Site C and its alternatives should be subjected to further review by BCUC.

Now, why am I using this as an example? Because this is an example where the Freedom of Information and Protection of Privacy Act, section 25, has a critical role to play. Because the other checks and balances have been bypassed, it’s left to citizens of this province to have all of the information they need to make up their own minds about how this decision was made and whether it’s justified.

In this presentation, I set out a number of aspects of that decision that have been challenged by credible, independent experts. I won’t go through those in detail. They’re there for you to read. Some of them you’ll be quite familiar with — but all the more reason why section 25 has a role to play in this particular matter.

From our perspective, from my perspective, it’s bad enough to refuse to submit this massively expensive project to the scrutiny of the B.C. Utilities Commission and the Agricultural Land Commission, both of which were created to examine these types of projects. But respectfully, to prevent British Columbians from accessing critical Site C information so that they can make their own assessment of Site C is simply unconscionable.

In this presentation, I’ve listed a number of unanswered questions, which release of this information…. It would help members of the public, who will be paying for Site C, to make up their own minds.

Let me turn briefly now to transitory records, and let me take you back to November 3, 1993. It’s funny. My wife, Inga, and I often talk about where we were on particular days. This one wasn’t on the list until the recent developments around triple deleting came to light.

It was on November 3, 1993, that as director of the information and privacy branch of the province of British Columbia…. We developed and finalized backgrounders on transitory records, electronic mail, black books and constituency business because we’d been asked by senior staff, both political and non-political, for a briefing on how freedom-of-information and privacy legislation would work with respect to these records.

This is where I’m happy to save you $50,000, because you don’t need a detailed report from David Loukidelis. I’ve got the backgrounder right here for you, and I’m providing it free of charge.

I want to emphasize one thing. If my math is right, 22 years ago — 22 years ago — we set out clearly what the rules of the road were for transitory records. We had numerous sections in the policies and procedures manual, which was a cross-government, official policies and procedures manual. We did this backgrounder, sort of the Coles Notes of transitory records. I’ll leave it for your reading.

I just want to touch on one of the key points to remember, which we emphasized in our briefing of senior political and non-political staff: as a rule of thumb, a record that is needed to document the evolution of a gov-
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ernment decision or action is not a transitory record and must be retained and kept on file.

Our view then and our view now — my view then, my view now — is that the exemptions are there for a reason. If there are particular parts of those transitory records or e-mails that need to be exempted from disclosure, we now have 22 years of experience in how to do that.

The second backgrounder is on electronic mail and highlights the approach to electronic mail. Once again, a couple of key points to remember. E-mails are subject to access requests under the act. The only exception to this rule are transitory e-mail messages, such as telephone message notes.

When we drafted this legislation, we expected transitory records and transitory e-mails to be dealing with items such as, “Gee, we need to move the meeting to three o’clock from two o’clock” — not substantive matters that document the evolution of a government decision or action. In response to the FOI requests that we’ve made in relation to Site C, there has been a notable lack of e-mails.

The last point I want to touch on — and then I’ll just summarize — is to give you an example of the type of policy debate that hasn’t happened and the type of debate that could happen if there had been, or if there is in the future, a proper, independent and expert review of the Site C decision.

I include in your kit information on geothermal. These are experts. These reports were prepared by experts, and they fundamentally disagree with this government’s assessment that geothermal doesn’t have a role to play, in combination with other renewables, as a substitute for Site C, which has huge impacts. But we don’t have the information to actually have this debate, because the information in the documents we’ve received that relates to these types of issues has been blacked out.

Hence, back to section 25, which…. It’s clearly in the public interest, before government spends the better part of $10 billion on a dam, to have open, transparent review of the alternatives. I just take you back to Dr. Harry Swain, who said: “Look, we didn’t have the time or the resources to look at this in the detail that we would have liked. We think it should go to the Utilities Commission.”

Just to wrap up, I said there were three things that I’d bring you around to in my presentation. The first one is that I’ve offered you a way to save $50,000. The second one is that you now know why November 3, 1993, was an important moment in my life in retrospect. Maybe think about where you were in 1993. Last but not least, what’s the symbolism of this Chevy Camaro? Well, the Chevy Camaro was the number-one-ranked car in 1968, when the W.A.C. Bennett dam went into operation.

Of course, fundamentally, the argument you’ll hear from many experts that are not retained by the government or the proponent is that we shouldn’t be using 1968 technology in 2015. To quote a newly famous Prime Minister in Canada, when he answered a question about gender equality: “It’s 2015.” Say no more.

That’s what this is. It’s 2015. We need a 2015 approach to freedom of information in this province. That means breathing life into section 25, and it means applying policies that were developed 22 years ago appropriately, rather than studying them to see what we should do.

D. McRae (Chair): Thank you very much. You were quick and to the point. You had four more minutes as part of your presentation. Now I’m going to open the floor to questions from committee members, if they are so inclined.

You must have been very comprehensive. We also have your presentation, obviously, and information. If you wish to add more addendums to it, as well, just a reminder that you can do so up until January 29, 2016.

R. Botterell: I’ve always felt that when there are no questions, I’ve made a brilliant presentation, and everybody on the committee agrees with me. So thank you.

D. McRae (Chair): Well, actually, before you go, Rob, we do have one question at the last second.

D. Routley (Deputy Chair): Please don’t take this as a mark down in the brilliance of your presentation. I really appreciated it, Rob. And thanks for the $50,000 that you’ve offered to us in savings around the transitory records.

One of the interesting aspects of that whole debate is that, yes, there would be a debate around the edges of that definition, but the actual practice, and the challenge politically that’s happened, is so far from the edge of that that it’s made the debate much easier, I think, to entertain.

You started out by referencing your history and being the top public servant in the establishment of the act. You presented last time, in a wonderful presentation as well, with some cautions and pleas for amendment that haven’t really been answered. They were answered, I think, in the report that the committee made, but they haven’t been translated to amendments to the act.

You point out that there’s been a diminishment of the act. Along those lines, what do you see as the most significant amendments that have diminished the scope and power and the effectiveness of FIPPA?

R. Botterell: Well, I think that some of it is amendments, and some of it is not dealing with decisions that have either been made by the commissioner or through the courts.

The narrow interpretation of the policy advice exemption is a major concern. The narrow interpretation of the cabinet confidences exemption is a major concern. It would be open to a government to make amendments to those sections to breathe life back into them.
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The other aspect is that discretionary exemptions effectively have been converted into mandatory exceptions. It would be open to the government to make amendments to make that more effective. And of course, there are the time limits and how those have changed.

If I could wave a magic wand, it would be to ensure that the Information and Privacy Commissioner’s office is properly and effectively staffed and funded. I would give the commissioner more power to actually enforce the provisions that are already there. Then I would, as I said, make some amendments where the exemptions have been interpreted in an overly narrow fashion, compared to other jurisdictions where the sky hasn’t fallen.

Then last but not least, really, at the end of the day, section 25 is the section that acts as the big check and balance. I think that’s got to be addressed.

I will disagree with the previous presenters. I actually think the solicitor-client-privilege exemption works just fine, thanks. I don’t think it needs to be amended. I think the last thing we need is more amendments to further narrow what is already an overly narrow set of exemptions.

D. Routley (Deputy Chair): One final question would be…. When you presented last time, you talked about the spirit of the act and the debate in the House in second reading — the establishment of an open government, a culture of open government, and how that has sort of been reversed. The act is kind of vulnerable to that, as we see. You didn’t necessarily have to amend it to weaken its application.

It’s difficult to recover culture once certain aspects of integrity have been lost. You just spoke of the role of the commissioner. Do you agree with some of the previous speakers who have recommended the separation of document archiving from the act versus freedom-of-information requests and privacy?

R. Botterell: Well, let me answer that in two ways. The first is that you can’t rely on the act to do all the work. It definitely was intended to be that you create the culture of openness, and then the legislation would be a backstop, as opposed to a first stop. I think there’s a lot more to do, but you need to have the legislation in the right position to actually be the deterrent for lack of openness, as opposed to facilitate a lack of openness.

In terms of the separation, there’s a massive records management gap. If separating it out and establishing that type of additional role, with proper funding, is what it takes to have effective records management, that’s what it takes. It doesn’t get the focus it has got. You only have to talk, as you may have over the course of your deliberations, with B.C. Archives to understand how huge the gap is.

This is the whole history of the province. I mean, 50 years from now, we’re not going to know what happened, because it was all deleted or it wasn’t kept in a way that’s readily accessible. It’s a huge issue.

The short answer to your question is yeah. If that’s what it takes to actually get the proper focus on records management, yes.

D. McRae (Chair): Actually, Kathy has a question as well. I’ll come back to you, Doug, if there’s time.

K. Corrigan: I wanted to ask…. You’ve said you don’t think there is a necessity to widen the legal privilege from solicitor-client privilege. But one of the comments that was made by the lawyers who presented was that settlement privilege, if it was extended…. I assume you were listening. The comment on that was that if it was extended to settlement privilege, that would mean that people are more likely to openly negotiate a legal settlement, as opposed to going to litigation.

I’m wondering if you have any thoughts about that. Could you solve that problem — if it’s true — by having settlements negotiations be clearly labelled as without prejudice? How would you address that point? It kind of made sense to me. I know there are offshoots of that, but it is a possibility.

R. Botterell: Well, how do you know it’s going to work? I think you need to find…. If you actually believe that it’s going to have a dramatic…. Not yourself.

R. Botterell: Sort of like evidence-based policy: show me that it would work, and show me that that’s the only alternative. When we drafted that section, we drafted that section to import common-law solicitor-client privilege.

If the commissioner’s orders and the case law have not tracked the evolution of common-law solicitor-client privilege, then perhaps you do need a very narrow amendment to make that clear.

In terms of your point, I’ve always been in favour of pilot-testing. If there’s some way to pilot-test that approach and actually see if there’s evidence that it improves matters, then you’d have an evidence-based reason to broaden the exemption under the act. Right now it’s: “Gee, we think this would do it.” I respectfully have to disagree and say: “Gee, if we’ve got common law solicitor-client privilege covered in the act, which was the intention, let’s just carry on.” I mean, the sky hasn’t fallen yet.

D. Routley (Deputy Chair): The commissioner has expressed concern several times on the number of carve-outs that have been made to the legislation, particularly around health information. Could you give us your opinion of that.
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R. Botterell: I always thought, when we drafted the legislation, that there was enough flexibility and enough scope within the exemptions properly applied to protect information. Carve-out starts to create a patchwork quilt of information and privacy rights, and to me, that’s a real concern.

There were some comments earlier about…. It’s confusing because different people have different approaches. You go to different ministries, and you get…. Well, carve-outs have the same effect.

The short answer is I don’t support carve-outs. I would be on all fours with the commissioner on that one.

Joan, when you’re ready, give me a head nod. We’ll have 20 minutes, by practice, for our presentation and then ten minutes for questions. If you would like, I can give you a two-minute warning when your 20 minutes is approaching.

D. McRae (Chair): Don’t take it personally, Joan. We’ll wait till our quorum returns before we start.

I’m sure our missing committee member will join us very quickly. For the sake of time and trying to be on schedule, Joan, I’m going to turn the floor over to you. It is now, according to my watch, 11:44.

J. Rush: Thank you, Mr. McRae, and other members of the panel. I appreciate having this opportunity to speak with you.

My name is Joan Rush. I’m a lawyer, now retired. I’m a member of the B.C. bar, and I now contribute my legal hours pro bono to assisting individuals who have developmental disabilities.

Certainly, Mr. McRae will know that in B.C., that’s a group of people we define legislatively. Developmental disability in this province is a person who is defined under 2.1 to have an IQ lower than 70 and/or impaired adaptive functioning, which would mean impairments that would be a contributing factor to making a diagnosis of “mental retardation” within the meaning of the Diagnostic and Statistical Manual of Mental Disorders.

They are a group of people who frequently do not have a voice of their own. They often don’t speak or read or write. So I’m here, to some extent, as a voice for that group. It’s interesting that freedom of information should have, in this case, I believe, such a negative impact on a group of people who need our assistance so greatly.

I will speak first to the obligations of public bodies, because I’m particularly speaking of public bodies failing, I believe, to live up to the spirit of the Freedom of Information and Protection of Privacy Act, to say that not only is it a legislative obligation for our public institutions to meet the freedom-of-information legislation; it is also in this country required under our common law.

I will rely on the position taken by Ms. Denham, the Information and Privacy Commissioner for B.C. I inserted for you her quote that leaders in government and within individual public bodies must embrace their responsibilities under FIPPA and create a culture that emphasizes the importance of fulfilling their obligations to the public. “Government leaders must fully embrace both the words and the spirit of our access-to-information legislation to ensure a true culture of public accountability.” Again, as I mentioned, I will turn to that.

Under the law, in 2010, Chief Justice McLachlin and Justice Abella pointed out that access to information in the hands of public institutions can increase transparency in government, contribute to an informed public and enhance an open and democratic society. As Louis D. Brandeis famously wrote in his 1913 article “What Publicity Can Do,” sunlight is said to be the best of disinfectants.

Open government requires that the citizenry be granted access to government records when it is necessary to meaningful public debate and the conduct of government institutions. That was echoed again just last year, in 2014, by Justice Rothstein of the Supreme Court of Canada. “Access-to-information legislation serves an important public interest: accountability of government to the citizenry. An open and democratic society requires public access to government information to enable public debate on the conduct of government institutions.”

Finally, as his very first act becoming President of the United States, President Barack Obama issued a memorandum to the heads of his executive department and agencies, explaining: “Openness will strengthen our democracy and promote efficiency and effectiveness in government. Government should be transparent. Transparency promotes accountability and provides information for citizens about what their government is doing.”

My presentation here deals with, I fear, in my opinion, an attitude that some public institutions in this province feel that they are entitled to withhold information that they think will be simply embarrassing or difficult, regardless of the implication for the individuals of the province that are affected. In this case, I think individuals with developmental disabilities have been severely affected by the withholding of this information.
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I realize you have a copy of my presentation. I will, however, read it for the benefit of Hansard, as I’m not certain otherwise that the document will actually go in. I will, from time to time, interrupt my presentation to provide additional information or refer you to documents.

Events of the past two years indicate that some B.C. public bodies fail, in Commissioner Denham’s terms, to embrace both the words and spirit of the Freedom of Information and Protection of Privacy Act. The failure of these public bodies to release requested information harms the public generally, but in the specific cases below, the lack of transparency has particularly harmed adults who have developmental disabilities.

The particular issue I’m discussing is information concerning frauds committed at Vancouver Coastal Health and University of B.C. dental programs. In the period from 2013 to the present, both Vancouver Coastal Health and the University of British Columbia provided minimal or no information regarding alleged frauds in the health authority dental program and at the faculty of dentistry in response to freedom-of-information requests. The affected dental programs primarily served vulnerable populations, including adults with severe disabilities and people in remote communities.

According to news reports, internal audits revealed that the dental programs were defrauded of funds in excess of $5 million. Police estimates indicated the losses might be as high as $8 million. One senior individual, Dr. Christopher Zed, was terminated by Vancouver Coastal Health from his position as director of the VGH dental clinic — that’s the Vancouver General Hospital — immediately after a meeting of the Vancouver Coastal Health audit committee. He was terminated from his position as associate dean of the faculty of dentistry effective the same date, although he’d actually been on leave from the university from the previous October.

Both institutions acknowledge that police were investigating the enormous losses from the dental programs they jointly ran. In response to FOI requests made by the Globe and Mail in early 2014, Vancouver Coastal Health returned an audit committee board summary sheet entirely redacted, apart from the date and the fact that it concerned Vancouver General Hospital dental clinic irregularities, in reliance on sections 12 and 13 of the FIPPA. In response to Globe and Mail requests numbered 14025 and 14035 requesting audit reports, UBC released no information at all.

No one has ever been held accountable for these enormous financial losses. Why should I be concerned about that? Because they severely impacted individuals with developmental disabilities, and I have outlined that under my heading: “Impact of the financial losses on adults with developmental disabilities and result of the failure to disclose.”

The people most affected by the alleged frauds at UBC dentistry program housed in the Vancouver General Hospital dental clinic are adults with severe disabilities. The VGH dental clinic was described by former director Dr. Zed as the primary provincial treatment clinic for people with special needs.

During his oversight, people with developmental disabilities typically waited two to three years for necessary treatment, often in pain and suffering infection. These vulnerable adults suffered cruel wait times for relief from dental pain and infection because the funds that were allocated for their treatment were diverted.

Within months of Dr. Zed’s termination by Vancouver Coastal Health, the Vancouver General Hospital dental clinic instituted a new policy, a copy of which I have attached with these materials. I’ll return to it in a moment.

The policy requires disabled patients to pay up front the estimated excess cost of dental treatment based on standard B.C. Dental Association dental fees, which are charged by the clinic, and the much lower amounts paid by the provincial disability dental plan. According to the policy, if they cannot pay the excess costs, the hospital will not book their surgery. The BCDA rates are approximately twice the fees paid under the provincial disability dental plan.

I will interrupt myself to point out that, certainly, Mr. McRae probably is aware, and maybe the rest of you are too, that the disability plan for adults with disabilities and others in the province has not been increased in more than a decade, while every year the BCDA rates go up between 4 and 6 percent. There has been, apparently, no attempt to reconcile the two. In the meantime, a hospital, which is not subject — I repeat, not subject — to paying the private costs of overhead that the BCDA rates are calculated on, chooses arbitrarily to charge those costs to people with disabilities at B.C. general hospitals.

Some of the most vulnerable, and often the poorest, people in our province are severely affected by the policy, which was promptly instituted by Vancouver Coastal Health after the discovery of theft and the termination of the former director, Dr. Zed. Since neither public body released relevant information or pursued criminal charges, no one has ever been charged for losses estimated at between $5 million and $8 million. Instead, the dental residency program was downsized.

The members of the disability community suffered reduced access to care and great financial and personal cost. Instead of the funding being restored to the Vancouver General Hospital dental clinic, the members of the disability community have been penalized by these losses. These disabled adults deserve justice and restitution of the money that was taken from a dental program that was intended to meet their treatment needs.

When our appointed federal senators were found to be potentially in breach of trust in the amount of tens of thousands of dollars, Canadians demanded that they be held criminally responsible for their actions. In this case, however, since no information was ever released re-
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garding the losses in the Vancouver Coastal Health dental clinics, no one has ever been held accountable.

Dr. Zed has never faced questioning from the College of Dental Surgeons of B.C. as to the events that led to his termination by both Vancouver Coastal Health and the University of B.C. or to his fitness of character to practise his profession. He currently practises dentistry in Vancouver.

Vancouver Coastal Health and UBC have been able to withhold information about a fraud in the millions of dollars from public scrutiny. This silence has allowed the perpetrator — or perpetrators — to escape an appropriate penalty — a criminal penalty, I might add. The failure to hold anyone accountable for the losses to the Vancouver General Hospital dental clinic and other Vancouver Coastal Health programs has done great harm to B.C. adults with developmental disabilities and reflects a failure of our freedom-of-information regime.

The attitude that was shown by Coastal Health regarding that request for information — all of which is the information concerning the frauds I have documented, with copies of news reports that are accompanied; I won’t read them — is reproduced in the next article I’ll complain about.

In the meantime, I would like to ask you to turn, if you don’t mind, to what would be page 9, the last, just following my address. It’s a copy of the clinic policy that I’ve referred to. If you look to the very bottom paragraph, it states: “An OR booking payment policy for general practitioners, prosthodontics and endodontics has been finalized. Patients scheduled for OR will be asked to pay the patient portion of the treatment estimate plan at least two weeks in advance of the OR booking to secure a booking.”

I would remind the members that people with developmental disabilities in this province typically rely on a monthly payment that has, again, similar to the dental plan, not been increased for more than a decade. They are being asked to come up with funds to pay for dentistry at private-practice rates from hospital dentists who aren’t subject to private-practice costs. They don’t pay for leasehold. They don’t pay for equipment. They don’t pay for salaries for the staff.

But they charge private-practice rates even though the other arm of government that provides the funding to individuals who are now being forced to pay for private-practice costs has no additional source of funding. It is something that I ask you to think about as legislators, notwithstanding we’re here to talk about freedom of information.

My next issue is with the failure of Vancouver Coastal Health — back at page 6 — to provide budgets and other requested operating information, I believe, in straight-up contravention of the Freedom of Information and Protection of Privacy Act. B.C. community living organizations are gravely concerned that B.C. adults with developmental disabilities face a lack of access to necessary dental treatment.

Together with these organizations, I have advocated for improvement to service. We have researched alternative methods of access to treatment, including in general-anaesthesia surgical-dental facilities located outside of hospitals. The information we have to date indicates that that would be a much less costly means of ensuring access to treatment for these people, rather than leaving them sitting on hospital operating room wait-lists.

Hon. Terry Lake, Minister of Health, advised that his ministry would require a business case for an alternative clinic before deciding whether to consider supporting that proposal. I proposed a single pilot-project clinic at UBC to act as a training clinic, as well, for our dental students, since they currently receive no training of any kind in treating adults with special needs.

Over the past year, I have asked Vancouver Coastal Health for financial information on at least five occasions regarding their dental clinic. I have three times requested a copy of the Vancouver General Hospital dental clinic budget and also the hourly cost of operating room time at the UBC and VGH hospitals. I have anecdotal information that the hospital budgets are approximately twice the cost — operating room hours — than the cost of a general-anaesthesia clinic in a community. But of course, I don’t get the dollar figures from the hospitals. They simply ignore my requests.

This information will enable us to create a financial comparison between dental hospital treatment in hospital operating rooms and an alternative surgical-dental general-anaesthesia clinic. Without comparable data, it is not possible to create a business case for consideration by the Ministry of Health.

After several requests, Vancouver Coastal Health refused to send a copy of the dental clinic budget on the grounds that “the budget for the oral health centre would not be helpful to cost out the alternative model.” I’m not certain how they determined that. Perhaps they think my little head is too small to understand the complexity.

My requests for hospital operating room costs were blocked or ignored. The Vancouver Coastal Health response is inconsistent with its own freedom-of-information policy, a portion of which I’ve copied out for you in these materials, and fails to meet the spirit and legal obligations of the Freedom of Information and Protection of Privacy Act.

I have attached a copy of my recent response to Vancouver Coastal Health in connection with my requests for financial data, for the information of the committee. I recommend that the committee reinforce to health authorities and other public bodies that compliance with FIPPA is mandatory under our legislation and under our common law, because transparent public bodies are essential to the public interest.
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I have attached, for your knowledge, I suppose, and information, a copy of a few of the relevant sections from the Freedom of Information and Protection of Privacy Act: the initial section 4, saying that information should be made public; and the two exceptions that, seemingly, the hospital relied on — not clear on what basis — sections 12 and 13.

UBC never made clear what sections it relied on — quite possibly solicitor-client privilege. At any rate, I note that “a public body must not refuse to disclose under subsection (1)…(g) a final report or final audit on the performance or efficiency of a public body or on any of its policies or its programs or activities.” So their failure to release audit information is, I think, inappropriate. The audit committee meeting, if they were relying on advice, I understand; the audit itself, I do not.

The next thing that, of course, our last speaker just spoke to was the “Public interest paramount” section of the legislation. It specifically notes that public interest should be paramount where there is a risk “to the health or safety of the public or a group of people.” If a public body doesn’t have rules itself to determine whether section 25 is applicable, Commissioner Denham has recommended in her last report on section 25, her Investigative Report F13-05, that they should create a policy to tell them when it’s necessary and whether it’s necessary in the public interest to release that information.

At the very end of these materials, you will see my correspondence with the hospital administrator, Marlene Matsuba. I copied it because I have printed out a section of the freedom-of-information policy that, supposedly, Vancouver Coastal Health abides by, which of course deals with FOI applicants being equitably and fairly treated.

Their obligation, under their own policy, is to, on receipt of requests for records, promptly inform FOI, I suppose, if they need to turn to that department for assistance. But they don’t require applicants to submit formal FOI requests. “A written request in any form can be accepted as an FOI request and need not mention ‘freedom-of-information.’”

I’ve been writing to them, as I point out in this note, on this specific issue and previously was asking for more — since July 29, again on August 24, again on October 8, again on October 28. I received this morning — interestingly, since I’m meeting with you this morning — a note from the FOI portion or whatever the office of Vancouver Coastal Health to advise me that, as of October 28, they received my request, notwithstanding all those other requests for information. So I could receive…. Their deadline for responding to me was December 10.

I would like to say that I do not believe that their FOI committee, or certainly the department of dentistry or oral health, understands their obligations in terms of the spirit, if not the legal obligation, under FIPPA. So I think it would be beneficial if your group could make such obligations known to public bodies in the province.

D. McRae (Chair): Thank you very much. Your 20-minute presentation now leaves us time for ten minutes of questions and answers.

Just for the sake of the record, I’m no longer the Minister of Social Development.

J. Rush: I do understand that. I do. But you were, so I thought…. I mean, as well, Mr. Eby, MLA, is also a lawyer and is very familiar with the obligations. I’ve also been to see him in regard to my paper, which I’ll bring to your attention, for those of you who aren’t familiar with it.

Help! Teeth Hurt is a legal analysis of government’s obligation to ensure prompt access to necessary dental treatment for adults with developmental disabilities. I’ve shared it with Mr. Eby. I’ve shared it with your department, as you were at the time and, subsequently, the ministers that have followed in your footsteps.

D. Eby: I’d like to thank our guest Ms. Rush. She is a tireless advocate for the rights of people with disabilities, in particular in relation to dental care. I want to thank her for that work and for her report, which I’ve had the chance to read. Ms. Rush is also a lawyer.

One of the issues that’s been discussed by other witnesses is that the remedies that are available in the event of a failure in the act, of which you’ve identified several, is to go to B.C. Supreme Court or the Court of Appeal or so on, as you go on up the line. As a lawyer, have you pursued any of these remedies? What was your experience in doing so? If you’ve chosen not to, what was your decision-making process in deciding not to go to court to challenge these decisions?

J. Rush: As a lawyer, I’m more familiar than most people with how complex and expensive it is to go to court and how problematic it is. Also, as a lawyer whose practice…. I was formerly vice-president and general counsel for a national insurance company that operated internationally, and I subsequently went on to have a private practice emphasizing regulatory compliance for financial institutions.

I had many opportunities to engage with government. I’m well aware that if a private individual or even a not-for-profit organization stands up to make the argument, government has an amazing group of extremely competent lawyers able to stop issues from progressing very far.

I’d like to remind all of you here that, notwithstanding the findings of Dulcie McCallum, people in Woodlands suffered abuse of various kinds and that the trial that was going forward as a class action was stopped on the basis of settlement. To this date, not one person has received a dollar from government.
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Our chief justice made the point that every claim that came forward for review was swamped by a massive amount of information from government and actually expressed, I think, real regret that the claims of people who deserve assistance from government to lead equal lives — I’ll go back to that point in a moment — should face such an absolute barricade from the government that’s supposed to assist them.

Having seen what happened in the case of individuals trying to receive any kind of restitution for the abuse they suffered at Woodlands, I can imagine that I would simply face a barrage, so I’m grateful to your committee for being willing to allow me to very cost-effectively come forward and make my voice heard and have it heard by Hansard so it becomes a public record that this is an issue.

The ability to take legal action is not a good one for the general public. It’s not an easy one. It’s not a cost-effective one.

Kathy, just a note of the hour. There are about four minutes to go until we wrap up this half-hour presentation.

K. Corrigan: Okay. I wanted to ask about process — and thank you for your presentation and your obvious passion and how much you give of yourself — with regard to the Freedom of Information Act and its processes.

It’s interesting to me that you have made several requests of Vancouver Coastal, but they essentially — I just want to be clear on this — have said they were not formal freedom-of-information requests. Therefore, the clock isn’t going to start ticking until we acknowledge that this is a freedom-of-information request.

They’ve sent it, finally, to their freedom-of-information department, and they are now saying: “We are treating it as an information request.” But until we decided that it was a freedom-of-information request, then it doesn’t. I just want to be sure of that.

Maybe, because we only have a minute, I’ll just bundle the other part of that question together, and then you can respond. Again, with regard to really specific freedom-of-information processes, have you made freedom-of-information requests with regard to the UBC program, and did you frame it as freedom-of-information requests?

J. Rush: I did not. I did not personally make them. At the time, I took it for granted that when I was…. All I’ve done is read the same news reports that I’ve included in the book for you. However, I found in any of my discussions about this issue….

I have a bit of a connection to the faculty of dentistry. I’m a former adjunct. I’m a lawyer; I was an adjunct in law. But I was also an adjunct in dentistry because I helped supervise a graduate student who was looking at the issue of access to dental, and they made me an adjunct. So I’ve had a connection to the dean and to other individuals. The topic is simply not discussed.

I didn’t think, I suppose, to make a formal freedom-of-information request from the university. But I did take it for granted that, ultimately, there would be pursuit of action. But I finally contacted, after my frustration with the hospital, the reporter who pursued this issue. She advised me that she’d contacted the RCMP, and they’ve said the file is closed.

Now, I don’t have any ability to contact the RCMP. To be honest with you, they don’t really want to talk to me either about files. But it seems odd that we should be satisfied, as a province, that we could accept that kind of loss and not pursue legal action.

If there was some reason…. It has been rumoured, by some of the individuals that I know from dentistry, that people involved with this problem came from a wealthy background and money was restored. If so, it wasn’t restored to the dental clinic, but at any rate, it might have been restored to the university or to the hospital. I’m not sure where it was restored, if it was restored. None of us know that. But if so, and if that was the reason for the hospital and the university failing to lay an information or failing to pursue legal action, which they almost have to do, I believe….

That’s my understanding. You have to lay an information. You have to pursue that legal action as the wronged party. Well, if they have failed to do so because someone was able to pay back the money, does that not speak to two types of justice in this country: one for rich people who could have their families or themselves restore what they stole and another for the poor, who are unable to do so? Something seems very wrong in this story. We should not allow it to go forward, particularly when the people affected count so much on government.

I think most of us in B.C., certainly in this room, generally don’t have to have much to do — and probably don’t want to have much to do — with government. We want to be able to work at our jobs, live our lives, enjoy our recreation, pay our taxes and hope that government does the right thing by people. But there are individuals who, for equity, need to have assistance or else their lives are not equal.

The issues I talk about for access for adults who have developmental disabilities are no different than a ramp at our public high schools. If you don’t provide the ability for someone who’s unable to walk to get to the school, you have blocked them from so much in life.

Well, if you don’t provide access to the same kind of care that the rest of us can receive, you have not provided an equal opportunity to all people who are citizens. People with developmental disabilities are citizens, and they are one group who actually need government intervention to ensure equality. That’s why I brought this to you.
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No, I didn’t pursue FOI with the university. I thought that the issue is something that government would address on its own, because I believe these people have a right. I believe your group is one that can look at some of the problems — the barriers within the public bodies providing service — that are creating a problem for individuals with disabilities to access the care they need.

D. McRae (Chair): Thank you very much. We almost made it in 30 minutes; we made it to 31 minutes. Nonetheless, well done. Thank you for your passion and your advocacy, by all means.

D. McRae (Chair): It is now, according to my clock, 12:15. We’re going to recess for 25 minutes and return back to this chamber at 12:40 to resume deliberations or presentations by various members.

D. McRae (Chair): Hello, I’m Don McRae, the Chair of this committee. We’re starting a tad late. It is now 12:45. By practice, what we do is we have half-hour presentations. Twenty minutes for you folks to do your presentation. I’ll give you a two-minute warning, if you would like. Then we’ll have ten minutes for the committee members to have a question-and-answer afterwards, if that’s okay.

R. De Pieri: Hi, I’m Roger De Pieri, secretary-treasurer and also the privacy officer for CUPE, Local 116. To my right, I have David Lance. He’s the vice-president of CUPE 116. To my left, I have Rachel Champagne, who is the national servicing rep for CUPE.

I’m here speaking on behalf of CUPE, Local 116. We were certified in 1942, and we represent approximately 2,100 workers at the University of B.C.

CUPE members fulfil many roles at UBC, including custodial services, dental assistants, IT services, machinists, mail clerks, storekeepers, carpenters, electricians, sheet metal workers, plumbers, steamfitters, plasterers, upholsterers, painters, locksmiths, bricklayers, mechanical maintenance, gardeners, mechanics, sign makers and labourers, as well as food service members, parking and access security, lifeguards, landscape technologists, bookstore employees and over 300 research and engineering techs, all working in labs and shops throughout the university.

It’s on behalf of those 2,100 members that I come here asking today that this committee amend the Freedom of Information and Privacy Act so that it covers wholly owned subsidiary corporations of educational institutions. We believe that the intention of the act, in this regard, was damaged by the recent B.C. Supreme Court ruling which changed the way the Office of the Privacy Commissioner must interpret the act.

I will bring to this committee’s attention a ruling out of the Office of the Privacy Commissioner against UBC, explain how that ruling came to involve UBC in the damaging Supreme Court ruling, detail how we believe the act must be changed to correct the damage that was done and suggest changes that the committee may choose to undertake.

I will provide the information and documentation that the committee requires to confirm that the Privacy Commissioner herself, Ms. Elizabeth Denham, has asked our government for exactly the same reforms to the act that I’m here to request today.

The intention of FIPPA. As you very likely know, section 2(1) of the Freedom of Information and Privacy Act identifies its primary purpose as being: “to make public bodies more accountable to the public and to protect the personal privacy.” Section 2(1) goes on quite clearly, in our opinion, to identify the method by which the act will ensure public bodies are more accountable to the public and that it is to give the public the right to access records.

Our understanding of section 12 of the British Columbia Interpretation Act bolsters our belief that FIPPA must be interpreted in a manner that ensures its primary purpose is upheld.

This submission includes a copy of that letter, dated October 20, 2010, from our Privacy Commissioner to the Minister of Labour, Citizen Services and Open Government, the Hon. Dr. Margaret MacDiarmid. I note it as attachment 1.

At paragraph 2 of the letter, Ms. Denham testifies that the Office of the Privacy Commissioner has long interpreted in a liberal and purposive manner so as to promote the objectives of British Columbia’s access and legislation.

Ms. Denham goes on to ask specifically for amendments to the act that will ensure the wholly owned subsidiaries of public bodies are held accountable to the public, as the act intends.

The Information and Privacy Commissioner, herself, also holds our belief that the act must be updated so that it can once again be interpreted in the manner we suggest here today.

FIPPA — failure to be effective. The membership of 116 believes that definitions in the act must be clear enough that a layperson can access the information and heavily funded corporations cannot use the courts to shield themselves from freedom-of-information legislation.

Again, as this committee is likely already aware, “educational body” and “local body” are currently defined differently in the act. That’s schedule 1. Specific to this matter, local body contains a provision in part (n) that
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states: “any board, committee, commission, panel, agency or corporation that is created or owned by a body referred to in paragraphs (a) to (m) and all the members or officers of which are appointed or chosen by or under the authority of that body.”

The absence of part (n) of that definition of a public or educational body meant that the Supreme Court was unable to find, in ruling F11-31 — see attachment 4 that’s in your package, order of the Supreme Court of British Columbia, F11-31 — “any board, committee, commission, panel, agency or corporation that is created or owned by” an educational body ought to be bound to provide the public with information surrounding its use of public funds.

The ramifications of that ruling are broad-reaching and have resulted in the Office of the Information and Privacy Commissioner having to interpret the act very differently than they’d had to before and that the Office of the Privacy Commissioner does not agree with.

Order F09-06 of the OIPC. The Supreme Court ruling F11-31 effectively negated order F09-06 of the Office of the Privacy Commissioner — see attachment 2 for that — much to the dismay of many B.C. stakeholders — and you’ll see in her letter dated October 20, 2010, much to the dismay of the Privacy Commissioner as well.

In order F09-06, the Office of the Privacy Commissioner found that in order to be in compliance with the Freedom of Information and Privacy Act, UBC must provide the public with information surrounding its wholly owned subsidiaries. That order specified that UBC’s wholly owned subsidiaries, entities that were 100 per cent owned by UBC and controlled by it, were UBC Properties Investments, UBC Research Enterprises and UBC Investment Management Trust.

The adjudicator, Michael McEvoy, considered the Freedom of Information and Protection of Privacy Act, sections 3(1) and 4(1); the Interpretation Act, section 8; the University Act, sections 27(1) and 47; the Access to Information Act of Canada; and the Municipal Freedom of Information and Protection of Privacy Act of Ontario, sections 2(1) and 2(3), in making his order F09-06. He considered eight separate authorities and ten cases in jurisprudence. It could not be argued that his decision was not carefully considered or that his experience or ability to interpret the Freedom of Information and Protection of Privacy Act were in any way limited.

The above notwithstanding, UBC did not provide the records of order F09-06 deemed within its control. Rather, UBC made an application to have the order of the Office of the Privacy Commissioner set aside by the Supreme Court of B.C. On September 30, 2009, via action S093711 — that’s at attachment 3 — order F09-06 was set aside because Mr. McEvoy had based his decisions on UBC websites that were not before him properly.

In making its application for reconsideration, UBC did not assert that Mr. McEvoy’s decision was based on misinformation. UBC had created and owned the websites upon which the McEvoy decision was, in small part, based. UBC pulled down the websites shortly after the order was made, and UBC well knew that Mr. McEvoy based order F09-06 on correct information.

We believe that this is an excellent example of a publicly funded entity using its enormous resources to circumvent the intent of FIPPA.

The application for order F09-06 was made by a single layperson with relatively little resources. The act intends to provide information to this type of applicant. In order to fulfil its intent in this case, the definition of “educational body” in FIPPA needed to be more explicit.

After order F09-06 was set aside, a consent order was made to await the Supreme Court of B.C.’s decision on Simon Fraser University v. British Columbia (Information and Privacy Commissioner) before proceeding with a reconsideration hearing for F09-06. SFU v. B.C. was proceeding on October 30, 2009. The parties believed that the fact patterns were similar enough between SFU v. British Columbia and the case that gave rise to order F09-06 to make awaiting the decision prudent.

In SFU v. British Columbia, the Supreme Court was being asked to determine whether certain records which had been requested by a member of the public were in fact under the control of SFU. The Office of the Privacy Commissioner had found that they were. SFU made application to have the Supreme Court reconsider that decision.

Unfortunately, without FIPPA or the consistent liberal and purposive interpretations that the Office of the Privacy Commissioner would apply, the Supreme Court was forced to make its determination based on the strict common-law test used to determine liability in civil law cases. In the resulting Supreme Court order, F11-31, at paragraph 23, the adjudicator asserts that FIPPA only applies if a subsidiary is under the control of the parent public body to such an extent that they have no independent functions of their own, and their records should be considered under the control of the parent public body for the purposes of subsections 3(1) and 4(1) of FIPPA.

We believe that that should never be the case, that in order for subsections 3(1) and 4(1) of the Freedom of Information and Protection of Privacy Act to apply to the subsidiary of a publicly owned company, the subsidiary has to be 100 percent owned and operated by a public body and not have a single function of their own.

A subsidiary should not have to physically intermingle records with the parent for the parent to be considered in control of the records as paragraph 34 of the SCBC order F11-31 determines. A subsidiary should not have to operate under the complete control of the parent for it to be found that the parent company controls the records of its 100-percent-owned-and-controlled subsidiary. Simply put, without public funds, none of UBC’s subsidiary companies would exist.
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While the Supreme Court’s use of the common-law test for piercing the corporate veil may serve entities well in civil law courts, applying that interpretation to the use of the public funds renders FIPPA powerless to provide pertinent information to the public. Nevertheless, the current definitions in FIPPA forced the Supreme Court to apply such an interpretation. As a result, FIPPA no longer applies to a large portion of the business of the educational bodies in British Columbia, and the public has lost its right to assess the use of its own funds through a reasonably educated lens.

The Privacy Commissioner of B.C. has already made a request for change to FIPPA, the same as the request I’m making here today. We believe it’s important enough that we come here today to repeat her request.

We believe that no person could know better than the Information and Privacy Commissioner the manner in which FIPPA was routinely interpreted by the OIPC. Further, no person could know better than the Information and Privacy Commissioner of the importance of having FIPPA interpreted in a consistent and effective manner or the importance of interpreting FIPPA liberally and purposively so as to promote its own objectives.

We echo Ms. Elizabeth Denham’s request that the definition of “public body,” which would include educational bodies, in FIPPA be updated to read the same way the definition of a government body reads, which is: “any board, committee, commission, panel, agency or corporation that is created or owned by a body referred to in paragraphs (a) to (m) and all the members or officers of which are appointed or chosen by or under the authority of that body.”

The CUPE 116 membership believes that the change we are requesting today will ensure that each and every entity conducting the business of the public and with the public funds will be again subjected to FIPPA. We believe such change will safeguard the intent of FIPPA and ensure that public bodies doing business with public funds are accountable for those funds by providing a mechanism through which the public can access records of the use of its own funds.

When properly interpreted by the Office of the Information and Privacy Commissioner, FIPPA ensures that the public companies are held accountable to the public, even when they are conducting the public’s business through their wholly owned, publicly funded subsidiary operations.

We believe changing the definition of “public body” in FIPPA will ensure that corporations will no longer be able to quite so readily take disadvantageous rulings against them by the Office of the Privacy Commissioner to the Supreme Court, and the act would once again provide the public with appropriate information through a process that a layperson can negotiate.

D. McRae (Chair): Thank you very much. You finished the formal part of your presentation a little bit fast.

That being said, just for your knowledge, we’ve had a couple of presentations in regards to similar issues around this issue.

I will invite committee members to ask questions if they want some more clarity.

K. Corrigan: Thank you for your presentation. I have a few questions, but I’ll start with one.

I am wondering whether you’ve given any thought…. One of the other presentations we’ve received on this very issue with regard to UBC talked about whether or not there needs to be a threshold of ownership. For example, the legislation that you want, the change that you want, talks about a body being owned or a subsidiary being owned. But what is the definition of “owned”?

The suggestion is that maybe there has to be something specific about more than 50 percent, if there’s more than 50 percent ownership by the body. You could get into situations where there’s argument or interpretation of what’s 50 percent; what’s 60 percent. What qualifies as being owned by the body? I don’t know if you’ve put your mind to that.

The second part of my question. I’m wondering if you could give us a couple of examples of the types of information that you would have liked to have been able to access and why you think it’s important to you and the public and the university to have that information made public.

R. Champagne: Thank you. The bulk of what we’ve written here is based on what the Privacy Commissioner herself thought. We don’t think we could come up with a better interpretation than the Privacy Commissioner.

Our belief is that applying the definition of “local government body” to “educational body” is going to provide those who are required to interpret the act with all the jurisprudence they need to find that threshold, because this definition, of course, has been applied to local government bodies since the act was created. Applying that definition seems to us to be the quickest, best way to get fair interpretation of the act.

In response to the second part of your question, our goal is not specific. We’re very aware of the situations that have occurred at UBC. But our interest isn’t even focused on UBC. Our interest is focused on having FIPPA being effective. Our big cause for concern here is not in any specific order that’s come down.

We’re just using those to illustrate this absolutely fantastic end run that a big, huge, heavily funded corporation can do around the act by simply creating the subsidiary and offsetting their own responsibility in that
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regard. Then when the Office of Privacy Commissioner makes an order that says, “I don’t think so,” they just do the end run around to the Supreme Court. The act doesn’t give the Supreme Court the language to be able to back up the layperson. That, of course, is what the act is designed to do.

D. Routley (Deputy Chair): I’d actually like to go back to that point. Some of the other presenters have made a different case and the recommendation to bring the subordinate entities of public bodies under the scope of the act. Recommendations have been made several times. One of the ministers of the government when she was Education Minister, Shirley Bond, agreed that it should be done. But it has never been done, as you know.

I want to emphasize what Kathy had to say about this. The point was made that, say, a school board with their development corporations, or UBC with its several different corporations, could have 5 percent owned by another body, and it would no longer be a wholly owned subsidiary.

I would like to hear whether you think that it would be an improvement to the recommendation if there were a threshold, as Kathy has suggested, that would put it at 50-percent-plus-1 or 60 percent or whatever it might be, and also the language that says that all the members or officials of which are appointed or chosen by or under the authority of that body.

Even if we did extend the local government language to educational bodies, it seems to me there’s kind of a hole there waiting to be filled by having another entity appoint one member to the board or another entity own 5 percent of the corporation and then escape the scope of the act again.

R. Champagne: I don’t think we’re ever going to write law that completely eliminates the need for someone to adjudicate on a case-by-case basis. This is going to tighten up a pretty huge hole. Is it going to make FIPPA perfect? Is it going to prevent really heavily funded lawyers from doing end runs around the layperson? Probably not 100 percent. But it’s going to come a far cry closer to giving FIPPA the power to do what it’s intended to do than it has right now.

K. Corrigan: Actually, not a question but just a response to that. We can concern ourselves with that, then. We just wanted to get your suggestions on it. We will, as a committee, take a look at that, among a whole bunch of other information. We’ll take a look at it and say: “Does it need to be even further tightened up to make sure that there aren’t further loopholes created by this tightening up?”

R. Champagne: I just can’t anticipate the ramifications of anything more specific in that regard. We’re unable to anticipate the ramification. We just have to look at what the Privacy Commissioner suggested and believe that that would be based on a knowledge of how the act works — and, more importantly, how the interpretation of the act works as the rubber actually hits the road — and go with that.

K. Corrigan: I will. You know me. I’ll keep asking questions as long as we have time, just about.

I was wondering. You were talking about the wider principle, as opposed to saying this just applies to UBC, although we have had the issue of UBC and the subsidiary corporations raised a few times before this committee.

In your experience with your local or through your knowledge of CUPE…. You focused on one, but are there other areas, just anecdotally or that you can remember, that have been a problem in terms of the act or the interpretation of the act that you wanted to mention right now? Sorry to put you on the spot, but I just thought that since we have a couple of minutes, I might as well ask.

R. Champagne: Certainly, freedom of information is something that we applied for situations of bargaining, not specifically at the table but wanting to know who’s paid and how and when and that kind of thing. I couldn’t speak intelligently to any specific situation.

Stories come up with regularity of difficulty in actually getting information using the act that’s supposed to provide the public with information. So I’m thrilled that this committee exists and that reform is being considered. That’s about all I can say to that.

D. Routley (Deputy Chair): I wonder. One of the issues of the day is the deletion of e-mails and lack of access to information that’s reflected in an increase in “no records” responses from government. It’s been noted by the commissioner that there has been a large increase in situations. We’ve seen it in our own research. We’ve asked about important issues, and they come back: “No records exist.”

R. Champagne: Yes. That would be one of the many specific ways that I’ve heard of difficulties, or faced difficulties myself, in trying to get records of who was paid how much and that kind of thing.

The one specific I can speak to happened to me personally, where we actually had to make an application to go to a municipal council in British Columbia. Their response to us wanting information on how much they were paying the person negotiating at the table was: “Oh, that was a gentleman’s agreement” — actually used the word “gentleman.” It was a gentleman’s agreement made. Nothing was written down, so we had to bring in the bylaws of the city to say, “Really? That’s in violation of about seven of these,” at a council meeting and have them hubbub around it.

Certainly, we don’t anticipate that we’re going to do anything that causes absolute perfection in the provision of information to the public. We’re just hoping to get this enormous hole that we can back up with actual practice in two separate incidents at universities that…. You can see the universities using each other’s situations to serve themselves well, and you can see the public, in two separate cases, being treated in exactly the same fashion and, essentially, the Supreme Court being used to circumvent the act and its intent.

In terms of your experience, as well, that’s a good example — requests coming back without any records. What about the issue of delay? Has that been a factor for you at all in the requests that you’ve made either to the university or other bodies?

R. De Pieri: I was just going to say that in my experience, when I’ve made FOI requests to the university, delay or redaction were probably the two heaviest things that I experienced. If they play a lot of wording games….

I’m not a lawyer. I’m an electrician by trade, and when I make an application to the FOI office for the university, I use simple language, and I often get met with…. It comes back with something that I didn’t even intend, which causes further delay or sometimes having to resubmit. When I finally do get what I asked for, it comes back heavily redacted, to the point where it’s of no use at all.

R. Champagne: I can definitely speak to it being way too easy for them to say: “We know we have 30 days, but a fly flew in and landed on the wall, so we’re going to get an extension of however long we see fit.” That one’s way too easy, just to delay it forever.

We’re going to move on to the next presenters, which will be the West End Neighbours.

V. Richards: I’m the one neighbour. Actually, that’s not true. I have another neighbour here, who’s equally concerned. Sounds like you’re hearing the same wording from everybody — the same thoughts.

D. McRae (Chair): Before you begin, we’re just going to…. I don’t know when you came in, but it’ll be 20 minutes for a presentation on your part, and we’ll have ten minutes at the end for questions and answers. If you like, I can give you the two-minute warning, if you’re getting close to your 20 minutes. The floor is yours, and please go forward.

V. Richards: Okay. Good. I’m Virginia Richards. I represent myself more as a private citizen here. I’m here with a neighbour, Anne Robson, who has been equally concerned about the projects we’ve been working on.

Until September 2014, I’d never heard…. I’d heard of a freedom of information request, but I didn’t know what it was about. We made a request. But before I go to that, I do apologize I didn’t have any documents for you — no resources, no fancy stuff or anything. I just want to stress that we’re newcomers to this whole process, and as a private citizen, I must say I’m really shocked at what we’ve experienced. But it sounds like just what I’ve heard. It’s not uncommon.

We were searching for information regarding our neighbourhood, which is not uncommon at the moment in the city. It was about a year after a community plan was passed where we discovered that we had not been informed completely of what was going on.

We were trying to identify who knew what when and who were the players. We did what we thought was a reasonable request, based on what was on line, and it came back that…. First of all, at one stage, the scope was too wide. We limited it, and the scope was too limited. We’ve been getting that backwards and forwards. That seemed a bit shocking to us.

I did a timeline of our backwards and forwards. It started September 18, 2014, to the city. We got the response from them on January 2, with the records attached, supposedly. So here are the records that were attached. Of 180 pages, there are 36 that are readable. Everything else is redacted. I’m sure you’re used to that, but it was a shock to us. Never heard of it. So if we printed out 180 pages, we realized we were getting pretty much nothing.

Then we’ve been going on backwards and forwards, still trying to get information, so I decided that we should go to the Privacy Commissioner. The letter went to them on January 17. I got various answers backwards and forwards. I’m calling them to say: “How’s it going? What’s happening?” Eventually we were told that we were getting
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an investigator. “No, we’re short of investigators.” I mean, the problems I can see that they’re clearly having….

Eventually, an investigator was assigned on August 13 this year. We went to and forward with it. She did a fact report to the city and to us on October 2. Then the city did a response back to her. I have asked to go to adjudication on this because there was no response. They’ve done a correction of a couple of things. I’m not quite sure what they are yet because I haven’t done the final response back again. We have asked for adjudication to see if we can get more information. So far, she’s got nothing.

I guess what I’m asking you to do today is, first of all, to help the lay public understand what questions they should ask. I mean, do we…? I can see it’s difficult. You don’t want to limit it too much, but you don’t want to be too general. If it’s general, they say: “Gee, it’s going to cost you a lot of money to get this information.” So far they haven’t asked for it, but it’s coming. So as lay people, it’s extremely difficult if you’ve never done one of these before.

But most of all, I think what I’d like to do is to ask you to give some teeth to the legislation for the Privacy Commissioner. Right now…. She was very, very helpful. I feel that she did all she could do — the investigator — but could get nothing and, I think, was as horrified as I was.

That, basically, is all I have to say. It’s just: please give them some teeth and help the public.

D. McRae (Chair): Well, thank you very much. Just before I turn it over to the panel, you have an opportunity in which you can provide something in writing. Obviously, your oral record is here in Hansard and will go into the deliberations. You have until January 29, 2016, if you wish to provide some documentation or a further addition to your submission to date.

D. McRae (Chair): It just helps us make a more clear sense of what you’re trying to say and what you wish government to go forward with. So I think it would not be a bad thing at all.

D. McRae (Chair): Second of all, just because I don’t live in the Lower Mainland…. West End Neighbours, I assume, represents maybe bigger issues, for sure, but they also have a specific geographic area. For Hansard, where do West End Neighbours reside?

D. McRae (Chair): Perfect. Excellent. I’ve got to get out more from Vancouver Island.

J. Tegart: Thank you very much for the presentation today. I want to assure you that we take the input very seriously. I’ve sat on many panels, and people have always said: “Is it worth my time?” It always is worth your time.

J. Tegart: To hear from citizens about how it’s working or how it isn’t working is really important to me. I, too, would not know how to ask for the information that I was looking for. I’ve certainly served on councils and on school boards and on public bodies.

If you have some ideas to help clarify how to ask, that would be very helpful to us. A citizens’ guide to how to ask might be a very good document. I’m not sure if it exists, but it could very well be a helpful recommendation out of this committee.

There is quite a bit of information on the website, but it doesn’t…. Well, it certainly didn’t help us to decide what questions and how big a scope they should be. We certainly haven’t got the answers yet.

D. Routley (Deputy Chair): There exists in the act a duty to assist. That would mean that if you made a request and it returned no records or it returned something that you didn’t anticipate, it is a duty of the head of the public body — which means everybody in the public body — the FOI officer, to help you narrow the scope or make more precise your target and that sort of thing, which the Information Commissioner has noted in her report is often a neglected duty.

We’ve heard from another presenter here a recommendation to include a duty to educate so that the public is always…. I think it’s much along the lines of what Jackie suggested — that there be some kind of a publication of ways and means.

V. Richards: I must say the investigator from the Privacy Commissioner was very helpful. Her intention, certainly, was to do what she could to help with that, being fair to both sides. I could see that. But it was…. She couldn’t make any more progress than we did.

Actually, I tell you, I just think that’s shocking. It’s a waste of her time and money. We’re paying a lawyer. If she can’t have some teeth…. We’re paying her, as a lawyer, to do all this work. It seems pretty wasteful to me.

K. Corrigan: I was interested in your comments about not knowing how to frame the question and so on. We have heard that from other people, so it’s great that you came here. If we have a variety of citizens coming and saying the same thing, then we can extrapolate a bit that this is a pretty common experience, particularly for people who are not particularly familiar.

I do think we have to think about having an on-line guide. I know there is some information on line, but a pretty comprehensive guide, with examples of what would work and what wouldn’t work, wouldn’t be a really hard thing for government to do. I think that’s worthwhile.

K. Corrigan: That wasn’t really a question. That was just a comment. So I’d like to ask my question now. I am a lawyer.

D. McRae (Chair): I’ll tell you what. You can keep going there, Kathy. We’ll rule you in order.

I was trying to get a better sense…. Maybe you could just explain a little bit more about exactly what type of information you’re trying to get and who you were trying to get it from. Then could you please explain to me a little bit more about what you mean about giving teeth to the Privacy Commissioner? Are you talking about penalties or more specific provisions that would assist the Privacy Commissioner?

First of all, what we’re trying to do is get information from the city of Vancouver about some of the rezoning that they have done. There are things in the community plan. It’s sort of words. What Anne and I found out, a year after this plan had been advanced and voted on, was that there was a specific allocation of buildings that were going to be in our neighbourhood, but we’d never been told about it or never been consulted about it.

We were trying to find out when it was first discussed. I mean, it was discussed, obviously, a couple of years beforehand. Who was it discussed with, and how did that decision come about? We haven’t yet got that answer.

K. Corrigan: I also asked about what you meant by giving teeth to the Privacy Commissioner.

V. Richards: Oh yes. Well, I was surprised. We have this 180 pages of nothing. I was really surprised. I thought when we went to the Privacy Commissioner that the investigator would have some power over the city. It would be a final, decisive…. It would be the person who would make that decision, but in fact, she could get no more information that we did, which seems pretty toothless.

That’s why I think they need to have more teeth. Their rights or their actions or what they can garner should be helpful to the citizen, it seems to me.

E. Foster: Further to Kathy’s question there — because I was going to try and find out what information you were looking for — as far as zoning in a community plan, it would be easy to find out when they did it. Just look at the records of the council meetings, because they have to have public hearings and public input on both zoning and official community plans.

Now, if they didn’t do that, they’re in contravention of the Local Government Act. So I don’t understand why they wouldn’t tell you. I mean, it’s a matter of public record, which doesn’t make a lot of sense. So I’m not saying they did give you the information, but there would be no reason to redact that. It doesn’t make a lot of sense.

I guess I would…. When you said the Privacy Commissioner couldn’t get any more information, what reason did they give you that they couldn’t? Did they agree with the redacting that the city had done?

V. Richards: Yeah, whatever that means. She took it to her supervisor. There’s obviously something…. I mean, it seems to me, it alerts me, that something is not happy behind the scenes there.

E. Foster: Well, I would tend to agree with that because the Privacy Commissioner has a whole lot of oomph when it comes to the provincial government. I can’t understand why they wouldn’t when it comes to the city, so it seems extremely strange to me.

V. Richards: May I just address your point about public consultation? Yes, there was a plan. There was a community process with consultation. I was involved in that. In fact, I was one of the neighbourhood champions. I couldn’t go to every meeting, but there were things…. There were surveys. I think if you’ve come from municipal governments, you will understand.
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But in fact, when the plan was written…. It was written in phase 1, phase 2, phase 3. I think in phase 2 is when some decision was made to insert different kinds of property into the plan — different heights, different density — and to my mind, that was not circulated. It was certainly not what West Enders knew or asked for in the plan. There was never…. Even when the plan went to council, what we were concerned about and what Anne and I saw a year later was like, wow, somebody had made a decision before the community plan was passed. But as far as I can find anywhere in the community, it was never discussed with the West Enders.

D. McRae (Chair): My pleasure. Like I said earlier, if you wish to submit more through the actual on-line process….

V. Richards: If you don’t get it, you’ll forgive me, because I have to work as well.

I now invite Vancouver Coastal Health Authority, represented by Steven Tam, to come forward.

We’re a little ahead of schedule, but if you’re ready to go, sir, that would be okay, I’m sure, with the committee.

Just for the sake of posterity, we basically ask for a 20-minute presentation and then allow ten minutes for committee members to ask questions and probe further into the issues, if they so desire. That being said, it is now 1:30, and I turn the floor over to you, sir.

S. Tam: Great. Now, should I assume that none of the audience has read any of the presentations?

Thanks, everyone. My name is Steven Tam. I’m general counsel and chief privacy officer for Vancouver Coastal Health. The subject of my presentation today is around section 30.1 of FIPPA. For those of you who are not familiar, section 30.1 is the provision that prohibits the disclosure, storage and, I guess, accessing data from outside of Canada.

To start off with, I just wanted to get a sense of how many people in here use iPhones. All of you? Okay.

My question is: why is that? Why has the iOS flourished while the BlackBerry OS is now on the verge of extinction? I think it’s somewhat of an analogous situation. I would suggest that a large part of that is because of all the apps that you can get from the Apple app store. People, through the app store, can gain access to best-of-breed applications for solving their problems, whether it’s communication access to data, what have you. When many people are drawn to it, vendors develop very useful apps, and there is sort of a constant stream of innovation that occurs.

Compare that, now, to slide 4. I ask: what might a B.C. app store look like for public bodies under FIPPA? It’s quite different. It’s much more limited because we’re always having to look for solutions that are usually Canadian-based or don’t have any sort of possibility of sending information outside of Canada.

Really, often it results in having access to second-best or even third- or fourth-best options in terms of IT solutions. I think when you have that, so fewer and fewer people are purchasing those apps or applications and solutions, they become costlier and you also get less support for them.

Really, in many ways what section 30.1 does, whether we originally intended it or not, is it actually says…. When you’re out there trying to solve, such as for health authorities, health care problems, you’re saying: “Don’t go to the Apple app store for your limitless possibilities of solutions and the most innovative ones; go to this B.C. app store for public bodies, which is limited in Canada.” That might sound a bit strange coming from a piece of legislation, but it’s the reality of what’s actually taking place.

What does this mean for B.C. health care? Well, I’ve selected a few examples to just give an illustration of the types of problems that we’re encountering, starting with slide 7. I give the example of a free Microsoft spam filter. The Microsoft spam filter would be considered best-of-breed spam filters, but unfortunately, it processes your e-mails that people might be sending to public bodies outside of Canada. As a result, it’s actually captured by section 30.1 of FIPPA.

Spam filters filter out unwanted e-mails, but they also filter out phishing attacks and viruses and malware attacks as well. Section 30.1 makes us have to look for solutions that are not best-of-breed, that send data only through Canada.

Slide 8, SurveyMonkey — you’ve probably heard of it — is probably also considered best-of-breed in terms of on-line survey tools, very easy to use. But again, because it stores data outside of Canada, health authorities and other public bodies are not able to use it, so they have to go back and look for second-, third-, fourth-rate products.

On slide 9, I give the example of the Gallup surveys. Most of you probably know of Gallup and their connection to doing surveys and polls. The health authorities have been using a Gallup staff engagement and safety survey for the last half a dozen years. But it was actually recently, this year, that despite privacy impact assess-
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ments that had been done…. Some of these things are quite complicated in terms of how data flows, and it was only discovered this year, at least for myself, that we were actually not in compliance with section 30.1.

Despite huge efforts to try to bring us within compliance, looking at all different types of possibilities, we couldn’t find a solution to it. As a result, it was actually cancelled this year. It was a big deal, because a lot of money is put into doing the survey. If you counted, there are probably roughly 100,000 or so staff that participate in it when it does occur. Now we’re sort of left with trying to figure out an alternative for that.

In slide 10, I give an illustration of the types of information that we were talking about with respect to Gallup. It’s not particularly sensitive information. It’s employee names; e-mail addresses; age range; union code, to the extent they belong to a union; the manager of the employee — those types of things. That’s the whole list there. It’s not sensitive health information or anything like that, but nonetheless, it was captured by section 30.1 and created this situation where we couldn’t proceed with the Gallup survey.

Slide 11 deals with the National Dose Registry. Radiology staff are federally required to…. We’re federally required to record information about exposure to radiation by radiology staff. There are a number of different mechanisms for reporting. A couple of the better ones are actually U.S.-based providers. I became aware of the situation recently that we were in fact using these U.S.-based providers — some of this practice goes back far historically — and they really are considered much better than the one Canadian solution.

Some of the ways that you try to bring yourself into compliance…. You’re trying to get employees to consent. If you ask for consent, what do you do when they don’t consent? If they don’t consent and you’re not putting it in, then you’re not complying with federal legislation, and then you’re not also, potentially, capturing their radiation exposure so that you can track that over their lifetime.

It’s complicated sometimes. It’s not whether you can do it or not, but sometimes it’s a matter of: you do something and it may only put you into partial compliance.

Slide 12 is an example of a patient care and safety one in the context of the clinical and systems transformation project, the CST project. This is the big project that we know about among Vancouver Coastal Health, Provincial Health Services Authority and Providence Health Care. It’s the $842 million project over ten years.

One of the things that was considered was whether we can utilize certain data services that Cerner offers. In this example, it was a sepsis module where they have an ability to help diagnose patients by analyzing data in the U.S. with similar patients who have sepsis and basically are able to help diagnose whether someone here has sepsis because of that.

Again, we run into section 30.1 difficulties. You could try to think of workarounds and that type of thing. Sometimes it’s possible; sometimes it’s not. But often the conversations stop whenever someone discovers that “oh, it requires processing data outside of Canada.”

Then I’ll leave you with just one more patient care example to illustrate how broad section 30.1 is. That is, if you were trying to do a consultation or get an expert opinion from a foreign physician, you wouldn’t actually be able to do that, say through an electronic medical record, because it actually prohibits access from outside of Canada even if it was a Canadian database.

In slide 14, I say that these examples are really just the tip of the iceberg in terms of the impact of section 30.1. You’ve got health care staff frustration, reduced functionality in IT systems because you’re going with second- or third-best solutions. You have additional costs associated with Canadian solutions and setting up servers in Canada.

You’ve got public bodies being forced to host IT solutions when we’re not the most effective or efficient at hosting hardware, and patient frustration if they aren’t able to do things in terms of communication with the health care system in the way that they’d like to. You’ve got administrative costs in terms of looking for section 30.1–compliant solutions. Time and resources are spent responding to privacy breaches in association with section 30.1, which, in my view, are often less serious or severe than other privacy breaches that we’d have to be looking at. Then, of course, there are the off-limits health data and IT services that you’re not able to access.

At the bottom, there is the inability to attract and retain talent. With the way that health care’s going, and particularly health research and innovation, people are collaborating across boundaries and across countries. If you were a leading expert in a health field and you were going to set up some sort of shop around developing best health care practices and research and that type of thing, this would be a consideration. If you’re not able to collaborate with your colleagues in different jurisdictions because you’ve got this restriction, it would lead you to think twice about coming in to do that in B.C.

With all these examples, I think we really have to ask: was this really what section 30.1 intended when it was developed? Just as a reminder, it was originally developed…. It came out of the proposal by the B.C. government to outsource MSP operations to Maximus, because the unions — slide 17 — had brought a court challenge. They based it on privacy considerations, but obviously a large part of it was around protecting jobs in B.C. At least…. Then the Privacy Commissioner at the time also got involved and did an investigation and a report on the U.S.A. Patriot Act and the B.C. public sector outsourcing.

In slides 18 and 19, I quote sort of the exact language that we have within section 30.1. As you can see, it’s very broad. Personal information in the custody or control of a public body must be “stored only in Canada and ac-
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cessed only in Canada,” with relatively few exceptions. Then the definition of personal information is very broad. It’s really any sort of identifiable information about an individual, except for business contact information, which is quite narrow. It really covers all those types of situations that we talked about.

In slide 20, I also point out that because of that, non-compliance is quite pervasive. Physicians and health care staff are using these various cloud-based services to communicate with each other and with patients for care delivery, despite health authority policies requiring compliance with section 30.1.

There’s a question of whether any of us are truly compliant. You may recall I asked you if you know who uses an iPhone in this room. Violating section 30.1 can be as easy as enabling iCloud backups on your iPhone, particularly if you’re doing that for work. We often have “bring your own devices” within organizations. If you’re backing those phones up to the iCloud, and you’ve got some personal information in your e-mails that are related to work, then you’re technically in violation of section 30.1.

It really tries — slide 22 — to put a barrier around personal information leaving Canada. In slide 23, I illustrate that you’re trying to really draw a circle around Canada in terms of information flow, trying to prevent access to these applications and data flowing into them. But the reality, as illustrated in slide 24, is that there is no way of keeping that line solid and preventing that information flowing there.

You are effective in situations where this is flagged by public body staff who’ve said, “We can’t do this,” so certain projects don’t proceed. But in many instances, data is flowing in, and sometimes you’re not even aware of it just because of the way that the technology is designed — so very difficult compliance requirements.

In slide 25, I ask: what other medical technologies are we depriving the public of when we’re doing this? Should we be having a debate within the public around the effects of this? What would they choose? Would they choose fear over the U.S.A. Patriot Act, or would they choose to utilize some health data services that are not particularly going to compromise their privacy? It’s really not about security and privacy, as I’ll illustrate later; it’s more the perception. I think that’s what we, in fact, have to fight.

In slide 26, I say: when so many new and innovative health delivery solutions are off limits, what is the long-term impact for care in B.C.? When do we start to become, really, not endangered but…? You get the point. We’re really becoming outdated in the long term if you’re limiting yourself to the available solutions that you can utilize.

In slide 28, I point out that there’s a tremendous amount of money that’s put into complying with section 30.1 over the years. If you look at every single IT project across the public sector, those dollars would add up into the tens if not exceeding hundreds of millions of dollars, potentially, in terms of savings over that time.

I don’t have the figures, but I’d be interested to know what the impact is if you actually studied it, because right now a lot of solutions are just not even considered because of section 30.1.

In terms of corresponding spending on privacy and security among the public sector, I would say it’s relatively minuscule and really on privacy and security issues that I think we should be tackling and focusing on, as opposed to trying to stop things like Gallup and Microsoft’s spam filter — those types of things — from being utilized.

In slide 29, I just refer to the fact that, as the Privacy Commissioner pointed out, Vancouver Coastal and Northern Health had, basically, under-resourcing for privacy, and that has a huge impact on our ability to comply with FIPPA.

In slide 30, I try to tackle the issue of the perception that somehow, by keeping things in Canada, we’re actually offering better security. I think if you ask most any CIO, they would tell you that it’s not where you store the data; it’s what software you’re using. Frankly, the larger corporations, in fact, have much more resources to dedicate to security of software than a smaller IT shop in Canada.

With the original goal having been trying to deal with the issue of outsourcing and, potentially, having a large government database stored in the U.S…. That’s one thing. But really, the other thing is that it has prohibited many other things from happening, which I’m not sure is of the same amount of concern to most people. In fact, I think some people would be surprised that we’re not able to do these things which would be of benefit to the public.

In slide 32, I ask: can we live with section 30.1, given that we have been living with it? Today I’m trying to say that, because of what we’re seeing, I don’t think we should be trying to live with it for much longer. I think the long-term impact on our health care system is that we will become more antiquated, compared to the rest of the world.

In slide 33, I talk about: how about something like this, which is the new Blackberry Priv? I use that as an illustration, because you may know that Blackberry’s platform is dying because of the lack of available apps. What they’ve done recently is chosen to go with the Android operating system, which would give their users the ability to access just as many apps as their iOS counterparts, yet they still focus on security. They focus on making sure that, even when you have that availability, it’s still done in a privacy- and security-focused way.

In slide 34, my suggestion is to really focus the legislation so that it does secure your most important data but that it opens up access to available apps or valuable technology and data solutions that serve the interests of B.C. residents. If the answer to that from this committee is yes, then I think we should talk, because there are al-
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ternatives that are available, some other things that other provinces have done.

I think that there needs to be public understanding and discourse around this issue and not just a fear of the whole issue and not getting into the details of the risks that we’re trying to address. Hopefully, that will lead to better-informed government decision-making around the legislation.

D. McRae (Chair): Thank you very much. We have about seven minutes for questions. I let you go a little bit beyond the 20 minutes, but you were close to being finished, and I thought it was to the committee members’ benefit. So to the committee members and yourself, if we could have answers relatively brief.

D. Routley (Deputy Chair): There were two moose hunters, and they shot a moose. They were licensed. A game warden came along and checked them and made sure that they were licensed. They were. So they were trying to drag this moose out of the bush, and they were tripping and stumbling, getting cut and bruised.

The game warden suggested to them: “Rather than dragging it out by its legs, why don’t you get on either side of the horns and drag it forward?” So they did, and one hunter said to the other: “We’re making great progress. This is fantastic.” The second hunter said: “Yeah, but we’re getting further and further away from the truck.”

I mention that because, with all respect, your submission seems to focus on the expediencies of administration and costs, when the basic principle of the act is to protect personal information.

When British Columbians are concerned about their information being stored where it’s accessible to Homeland Security, I don’t think that’s a small issue. I think it’s significant and important and relevant. I find it difficult, as a member of this committee or a person tasked with considering these things, to entertain reducing the protections to people’s personal information and privacy, an essential human right, simply to provide expediency for administration.

I might be more inclined to entertain that request if there were specific examples of technologies that were important to the health of British Columbians that weren’t available because of this. You’ve alluded to the fact that there might be, but I don’t see any actual, specific items where you can say: “Okay, because we’re not allowed to store this information outside of Canada, British Columbians are failing to receive this service.”

D. Routley (Deputy Chair): So storing information on an iPhone and not being able to back up to the cloud is a major impediment to delivering health care in B.C.?

S. Tam: I think it’s one of the examples that I think are relevant to compliance. The other examples that I gave have a real impact on patient care. The one about the Sepsis module.

I don’t think that you can just say that. I also gave the example that privacy and security is not what this is about, because of you ask the people who work in this area, the CIOs, they would say that your IT solutions, even if they’re hosted in the U.S., they are just as secure, if not more secure, than hosting it in Canada with different software.

S. Tam: Yeah. I mean, if they want access to your Canadian computers, they’ll get access to your Canadian computers.

K. Corrigan: I do. I mean, it does raise a really interesting area of debate. It’s about the balance between protecting the information of Canadians — British Columbians, in this case — with the ability to use certain technologies.

But the reason for the change to the act in the first place was the decision that personal information of Canadians should not be able to be grabbed and analyzed and used by the United States. The purported use is to fight against terrorism.

I’m going to quote just a little section that I found on the Internet while I was listening to you. It sort of shows to me the approach of the Americans. Here’s just one sentence: “To understand these acts and their basic intent” — talking about the Homeland Security Act, the Patriot Act and the Freedom of Information Act in the U.S. — “professionals and their colleagues must recognize that the U.S. government is permitted to access any and all information it deems necessary to protect the nation.” That’s fine for the United States to say that, but what they are saying is that they get to decide what they deem necessary to protect their nation, including any data that happens to be stored in the United States. I agree with my colleague Doug that if we are going to suggest that we are going to roll back from that, I think we have to think about it very seriously, because it’s a very serious act.

The question I would go back to and respond to that is: why is it, then, that we are not asserting to the United States that they should be doing something about their Patriot Act, so that our health care system is not being put in the position that it can’t use the most appropriate technologies? Why should we be the ones that have to change our act, as opposed to them re-evaluating their act?
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If it’s hurting their businesses and their companies, then maybe it’s an opportunity for Canadian companies to grow. And why would the American companies not, then, if that’s the problem, be accommodating with storage in Canada? I mean, those are also solutions.

I’m not suggesting you’re wrong, but I’m saying that these are really serious questions that we have to consider, and I don’t think it is as simple as saying: “Well, we’re not able to access some things. It’s costing money, and therefore, we’re going to overthrow the reason that we did this in the first place, which is to protect.”

I was looking at some of the data that you’re talking about, and it is very specific. It’s names. It’s….

D. McRae (Chair): Kathy, I’m sorry. We did have a limited amount of time. Was that a question or was that a statement?

K. Corrigan: There is a statement, but I’m also interested in the response to that.

S. Tam: Yeah, I think you have to look at the risk and the reasonable expectations of the public, of B.C. residents. I think the greatest thing that could happen right now is to have much more of an open debate about what we want to get out of this legislation. Right now there is no debate because of the fear that it’s not politically supported to talk about it.

If you want to get a sense of the public’s reasonable expectations of privacy, just look at how many people are on Facebook, how many people use Google Docs, how many people use the iCloud. How much more information do they capture in there that’s way more sensitive than the Gallup data or your spam filter?

I’m not a lawyer, so I’m not up on some of the issues in regards to privacy and the issues with the United States, etc. But it’s very interesting to me, as a layperson, to hear some of the concerns from a health authority in regards to what section 30 does to innovation, budgets, opportunities, loss of people who might come but see that as a barrier to sharing as they do research. It’s something that I hadn’t thought of in this process.

I really appreciate the information in front of us today. There’s no doubt that people’s privacy is very important. It brings to mind that maybe we have some work to do.

D. McRae (Chair): Jackie, I take it there’s more of a statement than a question there.

D. McRae (Chair): Well, in that case, we have exceeded our 30 minutes. I’d like to thank you, Mr. Tam, for your presentation.

I would invite FutureBook Printing Inc. to come forward. I believe it’s Dana Felske.

Dana, as per practice, 20 minutes for presentation and ten minutes for questions and answers, if we may. It is, according to my computer here, 2:03. I turn the floor over to yourself.

D. Felske: Sounds great. Thanks. I don’t expect to take the full 20 minutes, but if I do, certainly let me know.

Just for a little precursor, we are a private company here in Vancouver, B.C. So in some ways the act actually isn’t specifically pertaining to us. However, it is pertaining to our schools, the customers that we work with. In a way, I’m here sort of to represent the schools, but of course, I have not been requested to do so. I do not have any legal requirement or ability to do so. Because they are such a main source of our business operations, it seemed that this was a viable place for us to present our case.

FutureBook Printing Inc. operates under the trade name of FutureBook Yearbooks and also FutureBook. We are a Canadian company. We were incorporated right here in Vancouver, B.C., by my father and myself back in May 2007. We were pretty much a start-up for the opportunity to provide a higher-quality product than what is currently out there on the market and also to be able to provide extensive learning and support to those students and advisers who work directly on the yearbook production staff.

We primarily work with secondary schools, but we do work with some middle schools and elementary schools, even, and a few different departments with the various universities and colleges around B.C.

Another key factor about FutureBook is we came in at about 30 to 40 percent lower than the current industry standard at the time. As such, it was deemed by the customers, mainly the British Columbian schools, that the existing larger corporations were simply not offering a fair market price for the product and have since lowered their pricing as well. This has resulted in hundreds of thousands of dollars saved back to the students and the families that are purchasing the yearbooks.

You may be aware that while the school boards themselves will sign the contract with the yearbook publisher, it’s ultimately the students that are paying the price for the yearbooks — generally, of course, their parents.

FutureBook itself has been here to provide the product. We also provide extensive contributions of camera and other equipment to schools across B.C. as well as significant scholarship and charitable contributions. So far, we’ve planted over 132,000 trees around the world in relationship to one tree for every yearbook sold. As well, we’ve invested $130,000 in scholarships to B.C. students
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and $125,000 in technology such as cameras and software that they might use to create the yearbook itself.

A few other things, too, that separate FutureBook from the competition are some of our various options which you could enhance your book with. Some of them are specific to FutureBook, whether they be our ProofBook, our MovieBook, our GradBox, our MiniBook — a little bit irrelevant to this but just to kind of round out what FutureBook does for the schools as well.

Finally, in order to bring greater satisfaction to the yearbook staff themselves and to the adviser, and to try to limit the amount of stress that the adviser faces when putting together a yearbook and production throughout the course of the year, we do have a much easier review and submission and finalization process than the other yearbook providers.

Our British Columbian reps. We have four different reps here in B.C. We service about 66 local schools throughout the province, basically from Vancouver up to Prince George. They each assist on site as well as remotely, whether we are providing presentations, supporting with the software development and the training, and also running a comprehensive workshop in the summertime.

We do operate outside of British Columbia as well. We’re in Alberta, Saskatchewan, Ontario and in pockets around the world, in fact, but B.C. represents 72 percent of our business. Just for a little bit more scope, there are four main players in the British Columbia yearbook industry, two of which are American and two of which are Canadian, including FutureBook Yearbooks.

What we propose is the ability to be able to change the aspect…. Let me just back up a little bit. We believe that there’s great misunderstanding and confusion in how the FOIPPA act actually relates to the schools and to the yearbook production. School boards, individual schools and students alike request the services of companies like FutureBook Yearbooks — also school photographers and other vendors that deal specifically with the students.

A lot of our production is done outside of Canada, and that’s the bottom line. We propose amending the act to accommodate the needs of students at British Columbian schools and the vendors, therefore, contracted to provide services to them, of course, while maintaining a high level of security and protection for the students involved. What we actually recommend is the ability to temporarily disclose limited, non-sensitive student information outside Canada for the sole purpose of yearbook production and printing.

What we’ve been faced with since the act was in place. Many B.C. schools send simply the name of the student, the photograph of the student and the year of study of the student outside of Canada for printing purposes. FutureBook specifically prints outside of Canada, as well as two of the other main players within the industry. A concern has been raised, however, that this practice may be contrary to section 30.1 of the act, because 30.1 says: “A public body must ensure that personal information in its custody or…control is stored only in Canada and accessed only in Canada.”

What we request is that…. A privacy-protection solution is available. A ministerial order is requested under section 33.1(3) to permit school boards and schools, through their yearbook service providers, to temporarily disclose very limited student information outside Canada for the purpose of yearbook production and printing. The order would impose conditions to ensure the security of the information during production and printing and destruction after printing. Of course, while we’re the only yearbook provider here today, it would cover the entire yearbook industry and not just FutureBook Yearbooks.

As I mentioned, we do print outside of Canada. This requires limited, non-sensitive student information to be temporarily sent outside of Canada. We chose to print out of the country only after we had done our due diligence and went through research and found that it just wasn’t possible to provide the type of quality and pricing as well as service support through a Canadian company.

By printing outside of Canada, FutureBook Yearbooks can offer better pricing to B.C. students and families, and the quality of our product is very high. We believe that the value and quality proposition for B.C. students are clear.

FutureBook Yearbooks and other yearbook companies have, for many years, been sending such information outside Canada for printing purposes, with no reported problems. That’s one of the key factors — that for years, there has been a lot of noncompliance and only spotted enforcement of the act itself.

Section 33.1(3) authorizes a minister to, by order, “allow disclosure outside Canada under a provision of section 33.2 in specific cases or specified circumstances, subject to any restrictions or conditions that the minister considers advisable.”

The minister’s authority to make any such orders recognizes that not all situations involve sensitive personal information or any real risk to individual privacy. Here the personal information temporarily sent outside Canada consists of just the student’s name, the student’s photo and the year of study. Every once in a while, there is additional information that would go into a yearbook, always by choice of the students, but typically it’s just an image of the student, a candid image, just enjoying some of the school activities.

In some cases, students may include in the yearbook about their likes and dislikes — again, not generally considered too sensitive. For one thing, students do understand that the information they provide will become public and in print. Further, with our company specifically, this information is only sent outside Canada temporarily and for an extremely narrow purpose. A ministerial order would support competition without harming any real privacy interest whatsoever.
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A ministerial order under the act itself would impose appropriate security conditions and restrictions on school boards and their service providers. We’re certainly not looking for a blank, open door to walk through. As an example, with FutureBook Yearbooks, we don’t send personal information in the form of any raw or JPEG or otherwise easily accessible files. We do send compressed PDF files, encrypted on request, and they’re secured on request. They are print ready, and they are always destroyed after printing.

Since we first organized, in 2007, we have changed all of our service providers. Everything else is stored within Canada, whether it be our website, which might gather information for quotes, our e-mail system or the actual file transferring. All the files that do get transferred are handled by a company here in Canada, and the actual hard, raw data is all stored right here in Vancouver, B.C.

Citing FOIPPA’s prohibition against public bodies permitting storage of or access to personal information outside Canada, other publishers have actually written to B.C. school representatives suggesting that the school should do business with that publisher only, because its yearbooks are printed in Canada. We’ve actually had two come up now.

This publisher is, in effect, trying to use privacy as a competitive weapon. If it succeeds, this would affect all providers, not just FutureBook Yearbooks. It would also result in B.C. students paying much more for their yearbooks and their student photographs while not offering the product quality and the community contributions that FutureBook Yearbooks offers, at least for what we offer.

In addition, FutureBook Yearbooks is aware that some companies providing school photograph services may store and access personal information, in the form, again, of a name, photograph and school year, outside Canada for production and printing purposes. The minister is therefore asked to issue an order that would also cover school photographs, again with the security and other conditions. Like I said, we’re not speaking on behalf of anybody else. It’s just part of the same package when it comes to the production of products that might go home to the students.

Actually, it should be noted that there are multiple instances where sensitive student information is stored and used by other companies outside of Canada. This would include social media, certainly, as was brought up already today. That may be by choice, but in this case, we’re talking about minors. But also, scholastic organizations require much more specific information. They might require addresses and other information, which would be more than what a yearbook provider requires.

The benefits are clear for students and families in terms of keeping the costs lower and as regards product quality. Another benefit of the ministerial order would be that this would level the playing field for the yearbook industry and allow the companies to compete on cost and quality alone.

There could, conceivably, be negative attention, perhaps prompted by publishers who are using the act as a competitive weapon. Stakeholders such as the BCTF might also raise issues. Yet the clear value proposition and competitive benefits flowing from the order would meaningfully answer any alleged risks. So would the fact that the information is non-sensitive and is only temporarily located outside Canada. I think those are the real key points here.

We are also protecting with security measures, and we are destroying the files after printing — those that are located outside of Canada. Furthermore, other publications and products involving personal information are produced outside of Canada, a fact that would also assist in countering any concerns.

To summarize, as we deal with school boards and individual schools, we have decided that…. Based on the amount of research we’ve done, providing the product and hearing the concerns and the complaints — mainly from principals and teachers themselves, who are faced with the constant uncertainty of the act and how it should be enforced — we feel that this ministerial directive would allow much more freedom and much more security, as well, to the schools as long as the companies in question secure and maintain all control of the files submitted and operate responsibly and with due diligence. That obviously should be part and parcel.

Let me remind you, too, that once a yearbook is actually produced and provided to the students, it may travel all over the world. Whether it has extra information that other students have written in or whether it was the original raw book, it will travel around the world with the students and with the advisors and other people who, hopefully, keep their yearbooks.

Like I said, the bottom line, too, with this is that there has just been so much confusion. While the act has been in place for many years, most of the yearbook companies have actually been American. Of course, they’re producing their books in the States. As well as having all their software, they might have Canadian employees.

We are a Canadian company that has all of our software in Canada. Either way, we’re all kind of in the same boat. It’s only been in the past two years that a Canadian manufacturer has come up and said to the schools: “Did you realize you could be fined?” Another company has kind of jumped on board with that. The schools are basically throwing their hands up and saying: “We don’t know what to do.” And this entire time, non-compliance has been pretty pervasive across the board.

So having specific information, perhaps, determine what can be exempted for a temporary purpose would definitely help the students have their opportunity to choose what the best company is for themselves and to be able to provide that security across the board.
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K. Corrigan: You probably heard the discussion that we had previously — a submission on the same section.

I am fairly familiar with the act, but I don’t profess to be a huge expert. Is it your understanding that this issue could be addressed if individual students and/or their parents were to sign a consent saying that they’re okay with the information?

D. Felske: Many schools have taken that route, whether it be mandated by the school or the school district. The decision is out as to whether that will actually be enough if they were taken to task under the act.

Ultimately, most schools have said that’s just not a solution for them. They find it incredibly difficult to be able to get all that permission, all the forms back or any sort of means of confirming that the students did say: “Yes, I can have my photo taken. Yes, that can be in the year book.”

When those schools have said that it has worked for them, they just kind of ignore any other concerns that another publisher might bring up. It’s been a bit yes and no. But I believe the understanding is that even with that consent, it’s not actually following the act to the full degree.

We have Mr. Schwartz just walking in. We’re a little ahead of schedule but with the committee’s pleasure, I will hopefully just keep moving.

As you are sitting down, I’ll just say that the committee practice is to have a 20-minute presentation by the presenter and then a ten-minute question-and-answer period afterwards.

I’ll let you get yourself ready. We’re not in an immediate rush. We’re actually ahead of schedule by a little bit. When you’re ready, just give me the signal, and I’ll invite you to begin.

D. McRae (Chair): Thank you very much, Mr. Schwartz, for joining us today. It is now, according to my computer, 2:20, so I’ll turn the floor over to you. At your pleasure.

P. Schwartz: Thank you. I also thank the members of the committee for allowing me to come and make submissions on some admittedly technical legal points but I think, nonetheless, ones that need some attention at this point in the life history of the statute.

Earlier, when you mentioned 20 minutes…. You may, seeing the size of the submissions, think that I’m here as an example of the triumph of hope over experience, Mr. McRae. But the written submissions have been made through the Clerk of Committees, and they are my submission. So to the extent that I don’t touch on everything that’s in here, take my written submissions, please, as my submission. This is a bit of verbal gloss, a bit of an introduction.

The first page of the submissions is just me introducing myself and explaining why I’m here and how I’ve come through my experience admittedly not as a lawyer whose focused practice is FIPPA. But I have come through some experience that gives me a sense of three areas that I thought were worth the committee’s attention — three areas where, perhaps, the statute could be amended to further the purposes that are set out in section 2. I don’t mention it, but it is important to remember that when the statute came into being, section 2 said, and I’m going to quote now from sub 2(1).

“The purposes of this Act are to make public bodies more accountable to the public and to protect personal privacy by” — there are some subsections — “(a) giving the public a right of access to records, (b) giving individuals a right of access to, and a right to request correction of, personal information about themselves, (c) specifying limited exceptions to the rights of access” — and I note it does say limited exceptions — “(d) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and (e) providing for an independent review of decisions made under this Act.”

Later on in the statute, it talks about you meeting every five years. I don’t know if that makes you quinquennial or what. But here you are, and here I am.

If there’s going to be a FIPPA and if it’s going to have purposes, then, overall, the administration of the act — both through legislative drafting but also in the interpretation and application of an act in our courts — should keep in mind, foremost, those purposes. As I say in my paragraph 4, I identified three areas where I think there has been, in two cases, just a natural drift over time away from the purposes in terms of the case law trying to, very honestly, by hard-working judges, interpret and apply an act where there are words that they don’t see there that help them, in a particular section or subjection, interpret or apply it.

The first one I want to talk about is at page 2. That’s what’s come to be known, at least by me and people who have had to hear me talk about this, as the assiduous, vigorous seeker of information standard.

In essence, there was in our Supreme Court in 2001 and then, subsequently, in our Court of Appeal in 2003, a case called Legal Services Society v. The Information and Privacy Commissioner of B.C. I would say that it has resulted in B.C. courts using a standard to decide whether information should be released by a public body or not, which, I have to say, I think is contrary to the intent, contrary to the purposes of the act.

That standard is a test that is described by the following quote that comes out of that case — whether the informa-
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tion disclosed “would reveal advice or recommendations developed by or for a public body or a minister.” To cut to the chase, you’ll notice it doesn’t say would reveal to whom. It just says: “Would reveal.”

I think it’s a legal standard that probably fits things such as section 14 that deal with the exemption from disclosure of solicitor-client privilege materials. But it’s something that has been applied — and I put another three letters in a little bracket in front of “applied” in paragraph 5 — in the case law over about the last 15 years with respect also to section 13.

Section 13 exempts from disclosure policy advice or recommendations prepared for a minister or a public body. What I’m talking about in part B is how…. I think the test from legal services, which was properly developed by our Supreme Court and our Court of Appeal to deal with a section 14 exemption, has now, in the absence of anything else being available to the judiciary in the case law, become used in other areas, like section 13. I think the proper thing to do is perhaps to just amend section 13 of the act to make the Legislative Assembly’s intent clear rather than to allow the drift of the test.

I think it’s created an imbalance. I think the result is that now we have probably…. Well, it’s 14 years now since the first of those cases. We’ve got a mixup. We’ve got an interpretation application that was developed for section 14’s exemption being used in our courts for section 13. I think that takes the intended balance of interests between public bodies and requesters of information and tips it a bit. Nobody intended that, I’d submit. It’s a drift. It happens over time with any statute. That’s why you’re here now to think about these things.

At paragraph 6, I set out what section 13 of FIPPA says. It says that, in dealing with disclosure “the head of a public body may refuse to disclose to an applicant information that would reveal advice or recommendations developed by or for a public body or a minister.” But in subsection (2), there’s a long list of exceptions, and the first one I’ll draw your attention to is item (a), any factual material.

Whether through inadvertence or design in the early 1990s, it was left at that. It just said: “Any factual material.” Perhaps at the time it wasn’t thought through that we’re talking about records. We’re talking about pieces of paper in which factual information may appear on a page along with things that might be exempt from disclosure that clearly are policy advice or recommendations.

On page 3, about halfway down, I also tell you — section 14, the legal advice exemption, which I think is founded on long-established legal principle. I hate to call it sacred. I’d be pushing it. But it’s certainly something established. Of course things subject to solicitor-client privilege are exempt. But what I’m saying to you today in my first point is be aware how the case law — in my submission, admittedly, in my own opinion only — has taken the test in the language of 14 and used it to apply 13’s exemptions — the test for when a public person or a body gets something — and made it too high in 13.

Now, in the trial reasons in legal services, which I talk of at paragraph 7, the judge at that time said, well, in terms of to whom the information would be revealed, it was not to be “a casual reader.” It’s not a non-specialist. But they say whether it’s an “assiduous, vigorous seeker of information relating to clients.” That’s the full phrase.

In fact, you’ll see in later judgments, including the one I’ve tabbed at A of your materials, that that “relating to clients” has sort of disappeared, and the standard being used is now: “Well, if somebody saw this and they were an assiduous, vigorous seeker of information — that is to say, somebody with an unusual command of the facts and the reasons why the FOI request was made — could they, from having seen it, deduce the policy advice or the recommendations that had been prepared for or given to a public body, under 13?”

When they talk in the cases about “would reveal,” it doesn’t have a qualification — would reveal some, would reveal a bit. It says “would reveal,” which I’ve always taken to mean that somebody would be able to infer the entirety of the policy advice or recommendations. Well, as I say in paragraph 8 of my submissions, that use of the word “clients” — well-intended in the judgment — “brings to mind the image of an experienced, capable lawyer who’s deeply involved in a case to the point where he or she will see ‘clues’ in information released that a layperson would not.”

I think that if the Legislative Assembly of this province in 1992, when this act came into being — or now, in 2015, if the intention is to keep the act and to keep the wording substantially similar in the exemptions…. I don’t think they intended that high a level of disclosure barrier. I think that if they’d wanted to disturb this foundation stone of our legal system — as I say, perhaps a little too grandly, in paragraph 8 — they would have done it.

I’d say that if you want to do it, as members of the Legislative Assembly, do it expressly and take our courts off the hook of trying to grasp for standards that aren’t mentioned in sections of the act, which forces, in my submission, very capable, intelligent, honest, hard-working judges in this province to look to other sections where words were used and drag that over, even though you’re dealing with a very different type of information, the consequences of the release of which may be different.

What do I say, then? Well, I think the time has come to say that that standard’s a bit too high, to prevent the release of information, whether to individuals or to societies or to corporate entities, all of whom/which may be making requests. As I say in paragraph 10, I think that that precedent has been spread now in the case law. It’s drifted — unintentionally, but there it is — to sections of FIPPA which were not before the courts in that case, and there
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has been a resulting unplanned, unfair, non-legislative reduction in the actual access to information under the act.

I think that’s contrary to the original purpose of FIPPA in 1992, contrary to the purposes I read to you from section 2 at the beginning. I think it’s narrowed FIPPA in dealing with information from public bodies. I’m not talking about cabinet confidences. I’m not talking about committees of cabinet. I’m not talking about solicitor-client information. I’m talking about information that public bodies — Crown corporations, for example — have, which they believe to be policy advice or recommendations they’ve received.

Now, in paragraph 11, I suggest, perhaps, some wording changes to the existing section 13 of the act. I’m by no means coming to you with a stone tablet, saying: “Well, here you are. This is the wording, or nothing.” I’m certainly not in the position to do that. That’s not really the form of this committee either. But I’m saying I thought, when I looked at it, that perhaps something like this would help.

You’ll see in bold, with the suggested amendments in italics, that maybe section 13’s interpretation and application could become truer to the purposes of the act by having it read: “The head of a public body may refuse to disclose to an applicant information that would make apparent, to an ordinary, non-expert reader, advice or recommendations developed by or for a public body or a minister.”

You have to think sometimes about this particular statute being here to allow individuals to obtain information about themselves — information that a public body may have based decisions about those people on. I think if you set the standard too high, you’re saying to people, in this example: “Well, you can’t go and find that information about yourself, to see if a Crown corporation or another form of public body or a municipality had the facts, had what they needed to know about you to make the decision in the individual case.”

It’s also for societies. The case at tab A was a society. I acted for them, the Automotive Retailers Association. Once again, a society or a for-profit corporation might even want to know that decisions by public bodies about them or about their membership group are based on full and accurate information.

That sort of leads me to the second point, at C, that I’m going to talk about today. It leads me in this way. C, and my recommendations there, come out of an experience of acting for a client in the case at tab A, ICBC v. Automotive Retailers Association, where it was more important for that association to find out how they had been described to the Competition Bureau by ICBC.

What facts were used? Did the Competition Bureau have before it the necessary and correct information to come to the opinion which the public body — in that case, ICBC — said it had received? It said to the ARA: “Well, we’ve got this opinion. We’re not going to share it with you, but it requires us to dramatically change how we deal with you on important issues to your members.”

The result was, from the association’s standpoint, an FOI request. Some material was received, but the material that constituted the opinion — and, in the view of the Automotive Retailers Association, the information that had gone out to the Competition Bureau — was not received in whole. That led to the litigation.

I’m jumping ahead a bit. So I’ll start where I should start, at the beginning — which is, I think, what the von Trapp family singers told us to do 50 years ago — with C, the topic title: “The exemption from disclosure for policy advice and recommendations.” I’m saying that what I think could be changed in 13 is only half of the solution.

I ask you just to stop for a minute. When I say the word “advice,” what pops into your head? I hope it’s something similar to what the Canadian Oxford Dictionary, second edition, 2004, says: “Words offered as an opinion or recommendation about future action; counsel; formal notice of a transaction.”

When I say to you, members of the committee, “What do you think — just naturally, just what comes to your mind — when you hear the word ‘recommendations,’” hopefully, if you’re being reasonable and of ordinary life experience, you’re probably going to say it means something similar to what the Canadian Oxford Dictionary says: “Suggest as fit for some purpose or use. Suggest — a person — as suitable for a particular position. Advise as a course of action. Make acceptable or desirable.”

Now, it’s interesting that neither the word “advice” nor the word “recommendations” are defined in FIPPA — nor in the British Columbia Interpretation Act. FIPPA has the schedule at the end, schedule 1, for definitions. It’s a very unusual British Columbia statute to have its definitions not up front but way down in schedule 1. But you won’t find it there.

Our Court of Appeal, in 2002, in dealing with the case College of Physicians and Surgeons v. British Columbia, had to think about what was meant by the Legislative Assembly, because the Legislative Assembly hadn’t told the courts what was meant. The Court of Appeal said, in that case in 2002, “an opinion that involves exercising judgment and skill to weigh the significance of matters of fact. In my opinion” — this is the writing judge — “‘advice’ includes expert opinion on matters of fact which a public body must make as a decision for future action.”

With greatest respect, what I see there is it’s broadening out. It’s broadening out from what you thought of when I said the words “advice” or “recommendations” to: well, if there were expert opinions that were sought to get to that point, they’re also excluded.

By the way, just in that case, to let you know…. Cases come out of context, and hard cases with hard facts tend to make bad law, in my opinion. That was a hard case, I think. It was whether or not to disclose to a requesting party, who was a patient of a doctor against whom a com-
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plaint of professional misconduct had been made by that same patient, copies of experts’ reports that the College of Physicians and Surgeons had obtained — their in-house lawyer had obtained — investigating the very complaints.

You see how sensitive that was and what a job it then is for, in that case, our Court of Appeal to look into an act that didn’t define “advice” or “recommendations” and decide what, if anything, should be seen of the stuff they’d already decided was not solicitor-client privilege.

They took the position — the Court of Appeal — that the documents were subject to the legal advice disclosure exemption from section 14. That had been a reversal of what the Information and Privacy Commissioner’s order had decided and, indeed, the Supreme Court.

But remember, in College of Physicians, they’re talking about section 14, the exemption for solicitor-client information — the advice and recommendations you get from your lawyer; in this case, that the college got from its in-house council through obtaining.

So they used, as I say in paragraph 20, section 12 of FIPPA. There’s an example of my main theme today: jumping around the act to find words that they think can guide different sections and subsections that are there for different reasons and ought of right to have different standards of application. I talk about that at 20 and 21. I note that Madam Justice Levine, when she wrote that judgment — and I say it at 21 — talked about only and specifically “opinions of experts obtained to provide background explanations or analysis necessary to the deliberative process of a public body.”

In 1992, the act comes in. “Advice” and “recommendations” aren’t defined. I think people had been applying what came into your heads, when you heard the words. But later the Court of Appeal says: “Well, with respect to 14, if people are out there getting expert opinions to guide an in-house counsel, that’s solicitor-client privilege. Okay, so it’s broadened, but it’s still 14.”

Then along come other cases that take it in different directions. I think, as I say at 22, the problem started in 2002. But now a subsection of a wholly different section, 12(2)(c), that the Court of Appeal was looking at, starts to be applied by courts to interpret and apply section 13. And 12(2)(c) deals specifically and only with situations when…. I’m going to quote from FIPPA: “The head of a public body must refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council or any of its committees, including any advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Executive Council” — the cabinet — “or any of its committees.”

D. McRae (Chair): Mr. Schwartz, we’ve got about two minutes to go before a Q and A, if that’s okay.

P. Schwartz: Yeah, sure. Thank you for that. You were in the cabinet once, so perhaps my mention of it caused you to hurry me along at this point. I don’t know. And you will be again. You’re young.

Anyway, the point that I’m going through is how one section is being used to increasingly interpret and apply the law in another section, which is a wholly different area of information for which it was not designed.

At paragraph 27 — indeed, at tab A — I talk about how the Legal Services Society case, as the test I talked about first would reveal, is now sort of getting combined with the College of Physicians and Surgeons in the courts of this province to do things that — I submit at tab A, where I review the entire case — lead to a result that’s running against the legislative intent. Yes, I acted as counsel for the unsuccessful party, so perhaps it’s sour grapes that unconsciously propels me forward in a brown suit to meet you today.

I want to also add to that admission. I’m going to say that I think Mr. Justice Weatherill’s a good judge. I think he’s very capable and did a good job. But he’s only going to do as good a job as the legislation allows him to see to be done. He’s not going to invent stuff that’s not there, but he’s going to hunt around for it.

I think when you look at what’s at tab A, you’re going to find that there is a problem. Parties such as the ARA, which wanted information about themselves to see if it was accurate, to see if what the Competition Bureau had seen…. Not asking for the opinion back. Well, that was part of the FOI, but the core of it was more interested in seeing what was sent by a public body to the Competition Bureau than what they got back. At least, was what you sent correct and complete? Even if you won’t show us the opinion you say you got, we’ve got more confidence that you’re describing something that was based on accurate fact. Well, it didn’t get released there.

I think what you’ll find when you look for the reasons of judgment, ICBC and ARA, is that the law has developed incrementally through court judgments surrounding the section 13 FIPPA disclosure. The core of the problem is that the scope of the phrase “would reveal” in section 13 now, in my opinion, seems to have gradually extended itself in the cases.

I think this problem will continue to exist unless and until the Legislative Assembly amends FIPPA to say to whom it would reveal, specifically, and takes that burden off the judges of this province, who aren’t being told what the test is.

D. McRae (Chair): Could I invite the committee members, if they have questions, to so ask? If they have few questions, then we can go back to your presentation within the 30-minute time period. If that’s such a….

P. Schwartz: Certainly. I’ve got a page and a half, and I can do it in 20 seconds.
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D. McRae (Chair): You know what? If you can do it in 20 seconds…. I’ll time you.

P. Schwartz: Well, down at 34, I’m telling you what I think the additional solution is that’s needed in this binary problem with a binary solution. Amend the act, in 13(2)(a). Be more clear about factual material that must be disclosed. Don’t leave it so general that a judge is left thinking: “Oh, is this a crossword puzzle now I have to confront, picking and taking from these other documents?” I’m suggesting it be amended as you see there in (2)(a).

With five seconds remaining, I’ll refer you to D. I think the Office of the Information and Privacy Commissioner needs a clear exemption mechanism to extend periods of review. It just wasn’t there in the act. If you think about the illogical conclusion…. What does it mean — that the request for review comes in and if the OIPC sets it aside for 91 days, they’ve decreased their workload? Clearly, that couldn’t be it.

I’m just saying amend that to give them some ability to deal with 2015 workloads so that they can extend the review period. That’s it.

Are there questions from the committee members that they wish to pose to Mr. Schwartz?

D. Eby: There was one section in your submissions where you specifically set out — and, as you say, not in stone tablets but perhaps a direction for the committee…. That was in paragraph 11, where you said, around an amendment to the existing act: “The head of a public body may refuse to disclose to an applicant information that would make apparent to an ordinary, non-expert reader advice or recommendations developed by for a public body or a minister.”

Is this the only…? You did mention another section there, right at the tail end. Can you point me to the other amendments that you’re recommending here?

P. Schwartz: Yeah. That’s the amendment to subsection 13(2)(a) — factual material. I think that’s going to make life a little easier.

The third one was, in the five seconds of my last 20, D, on the last page, which is just that 56(6), in my submission, needs some mechanism for the Information and Privacy Commissioner’s office to extend review periods. I mean, keep the balance between the parties, but they just can’t, with their staff and workload, deal with it.

They write letters out saying: “Does everybody agree we’re going to do this?” Well, actually, the act says they must do it. It’s a band-aid fix, and somebody is eventually going to end up in court calling them on it and saying: “You had to do it in 90 days. You didn’t.”

D. Eby: You mentioned briefly in your oral submission that you didn’t intend your recommendations to have any impact on, for example, solicitor-client privilege or other forms of legal privilege. We had some submissions from the Canadian Bar Association, B.C. branch representatives, who were speaking in their own capacity today on that.

Can you clarify a little bit about why you feel that this wouldn’t impact that protected area of disclosure?

P. Schwartz: Well, pending knowing what their submissions were, here’s what I say. Section 14 of the act is the exemption for solicitor-client privilege. I’m talking about things that relate to 13, which is policy advice prepared for a public body or a minister. I’m not touching 14….

D. Eby: You’re not worried that the court is doing the reverse of what you’re saying — taking the standard that you’ve set out in this section and then back applying it to the….

P. Schwartz: No, I haven’t seen it so much. It seems to be because of the College of Physicians and Surgeons…. If you think back to the context of the times, you remember PST going up 0.5. What was happening with doctors and how doctors felt about being in this province was very timely at the time for the College of Physicians and Surgeons. Cases arise out of social context, right? They can’t be viewed with blinkers that way.

I think the problem has been that the higher test for solicitor-client has been brought down to 13. I don’t see a problem so far, in the interpretation and application of this act in British Columbia, with lower test standards for areas coming up to solicitor-client. I haven’t seen it. I’m interested. If you see it, you could let me know. But I haven’t seen it.

I’m wondering, if we’re casting around for alternatives…. If your suggestion was not taken into account — that the test should be what the ordinary person would discern as opposed to some expert — and using the example of the Automotive Retailers Association, is there
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another way you could come at it and talk about the impact or what the type of information is as opposed to characterizing it as advice or policy recommendations? I’m just wondering whether….

When you talk about a particular case and you say, “This is the information,” your comments make perfect sense to me, and I find it surprising that that would be lost. Can you come at it from a different direction? Have you ever thought about that? I’m sure you have, as a lawyer for them.

I hope I’m making myself clear. I might not be. I’m just thinking that rather than talking about the definition itself, saying the types of information that may or may not be caught. Is there any possibility…?

P. Schwartz: Yeah, well… Sorry. It sounded like you had a few more words to go.

K. Corrigan: No. I’m just sort of drifting off. I’m not sure what exactly I’m asking, but I’m trying to think of different….

P. Schwartz: All right. It’s like how those last three words from the test to whom it would be revealed have disappeared from the case law over the last 15 years for their clients. So I’m quite keen to hear the last three words of anybody now.

I appear in my personal capacity. I happen to have had experience in that case, but I don’t make submissions for that society here.

I was digging around and trying not to be rude in doing it. I don’t think I met my mother’s test for not being rude as I dug. The very next month, in this province, there was a case before Madam Justice Dardi. It was a public health–related case in which Madam Justice Dardi is using the case you find at A to assist her. I could have tabbed more to show I see it continuing.

It’s not, I hope, only about sour grapes and that one case. I hope I haven’t described an oak tree based on a single acorn that I kicked on the side of a road one day.

Madam Justice Dardi uses Mr. Justice G…. There are two G. Weatherills. They’re twins. There are G.C. and G.P. That’s why I gave you the initials. It can be bloody confusing sometimes. She used, from Weatherill’s judgment, which came out the month before, paragraph 52, where he’s talking about documents — a word, by the way, you don’t see appearing.

It talks about information and factual material. So now stuff is coming in again. Just the next month you see it being used in cases and sort of broadening out, in my argument, the ability of a public body to say, “We don’t need to show you anything under section 13” — which is policy advice or recommendations, not solicitor-client stuff.

You’ll notice I added, in tab B, just out a sense of thoroughness, that the Information and Privacy Commissioner — well, in her name — took the unusual step of appealing the ARA case. This is a public body appealing to the Court of Appeal a decision which probably benefited another public body, so you know something unusual is happening.

I got the permission of the president of the Automotive Retailers Association to disclose this much privileged information to you, that the decision by a body such as that whether to appeal is largely based on their financial resources, not their sense of wanting the fight to continue. There is quite often a disproportionate amount of resources.

May I also say that public health authority…. I will find it, and I’ll make sure the Clerk knows the exact site.

The Information and Privacy Commissioner, I recall — I wasn’t involved in that — filed a notice of appeal with the Court of Appeal. I don’t know where that went. I haven’t seen an appeal judgment on it, so who knows what’s happened there. There may have been an agreement that was worked out as to further release or not that led to the appeal not proceeding.

I think that the province of B.C. — I’m talking about, at that time, what was called the Attorney General; I guess it still exists, and it’s all wrapped up in the Ministry of Justice — and the Information and Privacy Commissioner were waiting for a case to come out of Ontario that went before the Supreme Court of Canada in 2014, the next year.

The case was, helpfully, called John Doe. That helps you find it quickly, doesn’t it, on Google? It had to deal with policy options. There, the Supreme Court of Canada was being told, out of a case of Ontario, where the section 13 wording for policy guidance to a public body is quite similar to ours….

Ontario and B.C. are quite similar in 13. I suggest that if you look at the other ones, they’re not so similar. I think the province of B.C., represented by these two perhaps conflicting wings at this point…. AG is going there to say, “Look, Supreme Court of Canada, don’t touch College of Physicians and Surgeons, because we know what’s going on,” and Information and Privacy Commissioner is going to see if the Supreme Court of Canada would work on 13 in Ontario the way I’m suggesting here. If it’s factual material, what does that mean? That’s just so broad. What happens when you find it in an otherwise exempt document?

In my submission, what happened in the Supreme Court of Canada…. I have to be careful. My best man, Russ Brown….

D. McRae (Chair): I have to be careful as well. We’re running very short of time — so 20 seconds, again, if we can.

P. Schwartz: Oh, okay. My best man from my wedding just got appointed as a judge there, so I’m not so caustic as I might have been about them. But they didn’t come to anything that helped this problem in B.C.
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D. McRae (Chair): Mr. Schwartz, thank you very much — very informative and occasionally entertaining as well. And your brown suit is outstanding. I thank you very much for your presentation.

P. Schwartz: Thank you, Mr. Chair, and thanks to the members of the committee for your patience with the technical presentation.

D. McRae (Chair): I now invite the Research Universities Council of British Columbia, represented by Paul Hancock and Larry Carson, to come forward.

Welcome, gentlemen. Again, we are doing our best to make sure that the presentations are 20 minutes in length and have some time for a question-and-answer. However, as you notice, the passion is intense in this room.

I will try my best to give you the heads-up when we’re getting close to the end of your 20 minutes, to make sure it can go as smoothly as possible. That being said, according to my clock here, it’s 2:55, and the floor is yours.

P. Hancock: My name is Paul Hancock. I’m legal counsel, information and privacy, at UBC. This is my colleague, Larry Carson, who’s the associate director of information security management. I’ve got the best part of two decades as a privacy officer and FOI manager in various public bodies. Larry Carson has been doing it even longer than that on the information protection side.

We both work for UBC, as you can see. But we are also representing the position of four other members of the Research Universities Council of British Columbia, which represents the large universities of B.C., the research universities. As well, we know that we’re representing an issue that is dear to the heart of many post-secondary institutions in British Columbia. I can’t claim all of them, because I don’t know them all. I know that it is the position of many of them.

I’m going to try to get through this submission as quickly as possible to give you a chance to ask questions.

Slide 2. The issue, going back to a theme you’ve heard a lot this afternoon, is section 30.1. I’ll make the immodest claim here that no section of the FIPPA has caused greater challenges for the post-secondary sector in B.C. than section 30.1. It erodes our competitiveness. It’s preventing us from using world-class tools that other universities use in other jurisdictions. And it’s adding costs and administrative complexity.

There is a common misconception that section 30.1 is about security and that by doing anything to it, we are eroding security. It is my strong feeling that that is not the case. If you believe that doing something to section 30.1 will erode the privacy of British Columbians, then you should not change it. But it’s my strong argument to you that that is not the case and that section 30.1, as it currently exists, does not effectively protect privacy.

Slide 3 is section 30.1. You’ve seen this before, so I’m not going to read it to you again. All I’ll say is, in summary, it prevents public bodies from storing personal information outside of Canada or even allowing access to it from outside of Canada.

There are a few exceptions. Consent is one. And there are a few other exceptions like payment processing, for example, to allow us to have credit cards processed. But generally, in B.C., you have to keep the information inside the country. This is the strongest geographical protection of personal information in Canada, certainly. As far as I can tell, it’s the strongest in the developed world.

Slide 4. Let me give you some examples of the impacts of section 30.1 on universities in this province. I’m just going to go through these briefly at a high level, and this is just tip-of-the-iceberg stuff. There are impacts on international engagement and recruitment, on administrative efficiency and security, on on-line learning and on academic integrity. This is just to give you a sense of the kinds of issues that we deal with literally on a daily basis.

Slide 5. Example 1. This example deals with the impact on international engagement and recruitment. B.C. universities are world-class institutions. We’re proud of that, and we have a worldwide presence.

UBC, for example, has offices oversees. We have offices in Hong Kong, England, India and other locations as well. These offices help with student recruitment, alumni engagement, fundraising and academic research activities. We’re not the only public body, just in passing, that has international offices. The provincial government itself has 11 international offices.

What’s the impact of section 30.1 on those offices? Right now they are unable to access any of our core systems remotely from those offices. We have UBC employees or other public bodies’ employees who are in these offices who can’t access, for example, our student or alumni systems. This makes it very, very hard for them to do their jobs.

Let’s talk about security. The fact is that Larry here could make this international access very, very secure. He could set up a tunnel to the Hong Kong office, for example, putting in military-grade encryption, triple authentication, real-time logging, you name it. It wouldn’t make any difference. The fact is that section 30.1 is not about security.

No matter how secure the data, even if the data is more secure than it would be here, we are still not allowed to do it under section 30.1. The security benefits of applying section 30.1 in this case are negligible.

Example 2 — impact on administrative efficiency and security. All right. B.C. universities, like most public bodies, use large, complex systems to manage their human resources, their payroll, their student data. Universities have systems, which they’ll often call a “student information system,” that has information about their students.
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Major vendors of these systems are moving to the cloud. This is a worldwide phenomenon. They’ve put us on notice that within the next three to five years most of them will be moving out of locally hosted systems and into the cloud.

If we do not move with them, we will be stuck trying to support on-premise solutions or versions of these systems without support from these vendors. Any IT person can tell you that that is a recipe for disaster.

We simply do not have the ability or the money to support these systems as they should be. One of these systems on its own could cost tens of millions of dollars to implement, so it is very important for us to find the best technology and the most secure system, and that may involve going to the cloud.

The real impact here is not cost-inefficiency. This is not an expediency argument. This is about the best interests of British Columbians in general and of our students and employees in particular. Many of these on-line systems are highly secure, but we cannot afford to invest in 24-hour monitoring, patching, logging and regular auditing. We have great IT staff, but we cannot offer that.

Locally hosted systems are less reliable, and ironically, they are less secure than cloud-based ones. So the true irony about section 30.1 in this case is that the security benefit is negligible at best.

L. Carson: Before we leave that slide, I’d like to comment a little bit further on the issue with going to the cloud. As vendors have come to us at the university, they’ve said to us that they are moving everything to the cloud and that we will not have on-premise solutions in the next six years.

That means that we won’t have an option going forward as to whether we can run solutions in Canada. We’ll have to look for substandard solutions or be faced with a choice of going to the cloud, whether we want to or not, and those clouds, typically, are not hosted in Canada.

While some vendors are announcing clouds in Canada, those are data-resident but not data-sovereign clouds. Things are changing, but they’re not changing fast enough to keep up with the legislation.

P. Hancock: Thank you. Okay, so I’ll direct your attention to slide 7, which is example No. 3. This is the impact on on-line learning.

We have great universities in B.C. We want to use the very best study and testing and learning tools. There are many of those on-line tools. They are being created every day, literally, and most of them, as you can guess, are not based in Canada.

They’re not hosted here. Many of them require that students provide their name and e-mail address in order to log onto those systems. We’re not allowed to use those systems because of section 30.1.

Now, think about this. Our faculty members and our students come from all over the globe. Can you imagine what they think when they come here and we say that they can’t use these on-line learning tools that they have used previously?

What message does that send to our university community and to the world at large, and how is this going to play out as more and more of our learning moves to on-line systems? And in the end, what are the security benefits of this restriction?

It is true that we’re talking about storing names and contact e-mail addresses of our students in these systems. We realize that this is personal information, and we take that very seriously.

However, these learning tools…. Number 1, they’re assessed and they’re vetted very carefully to ensure that they have high levels of security. We do that ourselves. Number 2, most if not all of these students use private sector systems — Facebook, Google, you name it — which also store their information outside of Canada, and it is less secure.

Those systems are less secure than the systems we’re talking about. Yet, we are prevented from using these tools. The security benefits are — you guessed it — negligible.

Example No. 4, slide 8, is the impact on academic integrity. This one is close to the hearts of many people in universities in B.C. This is a very specific example, but it’s one that’s quite important to us.

Most universities in the world use plagiarism detection services. These are on-line systems that have databases of academic writing, and they are used by our faculties of arts, and so on and so forth to detect whether or not students are providing original work. Many faculty members depend on these systems. Currently, we use a system called Turnitin at UBC, and many other universities use the same system.

These systems plug into our learning management system, which is the electronic system used to teach students at the university. In order to plug in, when the student uploads their paper into the system, it pulls their name. That’s all — just their name. Because of that, we cannot use the system in its integrated instance. We have to use it in a roundabout way. We have to do a usual workaround. We also have to allow the student to put in a false name — they could be Donald Duck or Mickey Mouse — and then the instructor has to figure out who they are.

Because of this, because we cannot use the system to its full capacity, we’ve caused untold frustration for our faculty members and bemusement for many of our students, who wonder why we can’t use the system as it’s intended.

The irony here is that the very people we’re trying to protect — our students — are suffering because B.C. universities have more difficulty ensuring the integrity of their programs. The security benefits in this case, again, are negligible.

Let’s turn to slide 9. I’ve given you enough examples here. I hope that you’ll believe me when I tell you that
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this issue occurs in our world almost every week, and it’s not going away. What does the rest of the world do?

Just about every developed nation has wrestled with these issues of cross-border data flows. Some of them — the European Union is a good example — have very stringent restrictions on cross-border data flows. But not a single one, except for B.C., has enacted an absolute ban on those flows.

Every other jurisdiction requires their public bodies to assess risk. That’s what we’re asking for here — to assess risk based on factors like the sensitivity of the data, the level of security, and so on. For example, what country is it stored in? A system stored in Germany is probably more secure than a system stored in some other countries you can think of. The question is: why is B.C. the only jurisdiction in the world that does not trust its public bodies to assess risk?

This is slide 10, which is my last slide. What are we recommending here? Here are our recommendations. We’ve outlined four conditions for authorizing storage or access outside of Canada: it would have to be necessary for a public program or activity; there should be no reasonable alternative in Canada; there should be reasonable security measures in place, depending on the type of information; and it should be reviewed by the Privacy Commissioner through a privacy impact assessment. Even if you accept these recommendations and amend section 30.1 in this way, B.C. will still have the strongest protections for cross-border data flows in Canada, if not the world.

Let me be clear. Just because we work for public bodies does not mean that we don’t think that the privacy and security of personal information are very important. We do. This is what we do for a living, and we’re proud of it. However, what we’re asking is to be able to exercise our judgment, as we can exercise our judgment in every other area of FIPPA, about whether or not to allow storage or access outside of Canada in appropriate circumstances.

I’m aware that there are those who would say that it is never acceptable to store personal information outside of Canada, and I respectfully disagree with that. My message is that section 30.1, as it’s currently worded, is a very blunt instrument. We wanted a scalpel, and we got a sledgehammer. It’s causing significant unintended consequences for public bodies, which are growing by the year. We can’t wait another six years for this issue to be addressed.

Let me close with a plea for you to consider this issue carefully and to put balance, proportionality and reasonableness back into the legislation by giving us this balancing test in section 30.1.

D. Eby: I was just curious about who you are representing here today. Your name tags say that you’re here for the Research Universities Council. Are you here for UBC or for the Research Universities Council?

P. Hancock: It’s a little bit of both. We are here on behalf of UBC, but we also have formal sign-off from four of the universities in the RUCBC, the Research Universities Council of British Columbia. Our formal submission will come out once we get all of the university presidents to sign off, so there’s a technical reason why we haven’t provided our formal submission yet.

D. Eby: Okay. So from the UBC perspective, we had some folks raise the issue of wholly owned subsidiaries of the University of British Columbia. Do you feel prepared to answer any questions around that in particular — I guess, why UBC feels that the wholly owned subsidiaries of UBC are not subject to FOI? And if you’re not prepared for that, I understand that. But while you’re here, it was raised two or three times today.

P. Hancock: I’m not prepared to address that issue, except to say that it is my understanding that that’s the decision that the courts have taken, so that’s the law as it stands now.

D. Eby: I won’t put you on the spot. I thought maybe you’d…. That’s fine.

In terms of your actual presentation today — I’ll bring you back to that. Page 10 of your presentation: “No reasonable alternative in Canada.” When you say the word “reasonable,” it might be different than my understanding of reasonable.

What are you talking about here? Would cost be a factor? I mean, what do you mean by no reasonable alternative in Canada? What factors would the committee import into that reasonableness test?

P. Hancock: When you look at a system, and you’re looking at the range of different options, you’re looking at a large number of different factors. One of the important ones is usability. For many of the solutions that we’re talking about, there is usually a small system — perhaps a homegrown system, using Excel or Access — which does the job but just very poorly. So if we said there’s no alternative, that would probably be going too far.

What we’re talking about is looking at factors like usability, risk, ability of people to actually use it and also, quite frankly, whether or not people will actually be using it. While we can provide advice to faculty and staff, if we give them unreasonable advice, they will continue going under the radar and using systems which are, perhaps, less secure. It’s a balancing test, and we will look at many different factors.

D. Eby: Somewhat. I mean, I guess I was looking for a…. If we were to legislatively recommend what reasonable alternative might mean — give the courts, for example, some guidance in interpreting this, or the Privacy Commissioner — I’m sort of looking for your suggestions, and maybe you could consider that when you provide your formal submissions.

Also, I would put on your radar that this wholly owned subsidiary issue is a very hot one. This committee will be dealing with it. The fact that the courts have dealt with it…. Certainly, it would be good to have UBC’s perspective about why they agree with the courts, why they put that position forward, in terms of our deliberations.

I’m going to go back to the reason, my understanding about why this section was brought in, in the first place — that is, the protection of British Columbian data from the Patriot Act. I mean, there are other reasons or there are other laws that might apply, but I do think that was really the impetus for it, right?

I think that many Canadians were really concerned. The legislation was amended with agreement, I believe, on all sides of the House. There was a public policy reason for it. I guess my question is: what is there in assessing risk, what you’re recommending, that can protect from that basic thing, which is the data from Canada where Homeland Security can say: “We believe that there is a risk, a terrorist risk, and therefore we demand access.”

There’s no amount of encryption or security measures, my understanding is, that can protect that data if the U.S. decides, without giving reasons or making it public…. There’s nothing that can stop the U.S. from making the decision that it wants to access and use that data.

That’s the nub of it. I’m just wondering how you respond to that, being from a university, where truth and honesty and openness — pursuit of truth — is the most important thing that you can do.

P. Hancock: The short answer is that you’re right. There is always a risk. There is a risk if you store information outside of Canada — that another government may get access to it. There is also a risk if you leave it in Canada — that that government or another, the Canadian government, for that matter, will get access to it. There is risk everywhere.

Universities, or public bodies generally, have always had to assess risk. They’ve had to look at things like the sensitivity of the information, for example, and balance how much security they want to put in place. If you put in the top levels of encryption, yes, it is theoretically possible that a government could crack it with enough time. But if, at the end of the day, they get information — the name of a student, for example — that might already be public, then the level of risk is so low that it makes it unreasonable to have a restriction.

In theory, if I take a page from the phone book and I put it on line, I’m breaking section 30.1. That shows that the issue of risk needs to be put into the legislation, otherwise it just becomes kind of an absurd situation.

I agree with you that there are many types of information which should never be put on line and should be hosted locally. Some of our medical information, for example, we would never dream about putting into a cloud system. But what we’re asking for is to be able to assess when we can do it and when we can’t. We think that that’s a reasonable request.

K. Corrigan: When you’re talking about encryption and so on, that somebody could crack it…. I’m not an expert on the Patriot Act by any means. But are you suggesting that it would have to be crackable by the U.S., or does the U.S., under the Patriot Act, have the ability to, for example, demand of Canadian authorities or organizations that they unencrypt that information? Is that the right word?

I’m just trying to figure out where the powers are and what the obligations would be of the organization that is holding the data.

P. Hancock: I’ll give you the short answer, and then Larry can correct me, because I’m going to make mistakes. My simple explanation of encryption is that it’s a way to lock up data so that it’s, effectively, unreadable. Who has the key is the important factor. If you give the key to another organization and they are forced to provide that key, then the information is readable. If we hold the key, then somebody will have to crack the safe, for want of a better word. They’ll have to break in and unencrypt the data.

To do that is extraordinarily difficult. I mean, it could take a supercomputer years to do that, especially at the highest levels of encryption. So the real question is: who has the key? And of course, in many situations, what we’re talking about is keeping encrypted data where we hold the key and nobody else gets access to it. A foreign government could not come to any public body and force us to hand over that key. We wouldn’t give it to them.

L. Carson: Yeah, that’s correct. With the modern encryption that we use today, if you combined all the computing power on the planet, it would take thousands of years to actually crack the encryption, to break in through the algorithms and make it so that you could get access to the information.

So then it comes down to the keys and how strong the keys are and who’s holding control over them. If you have those keys in the custody of a foreign government,
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then they will have access to the information. They can decrypt it. But if you maintain control over the keys, then no, they don’t have any ability to do that. They’d have to go through the cracking process, which would be very difficult.

D. Routley (Deputy Chair): In fact, public health information is likely to be stored in the U.S., but the commissioner has ruled that tokenization would be an acceptable anonymization of that information. Perhaps it would be Mr. Carson who could explain to me better the precise difference between advanced tokenization versus advanced encryption and which provides a great security.

L. Carson: Sure. Tokenization is, basically, replacing information with something else. We have my name represented here, but let’s say we decide to replace part of it with some other information and then we keep that information and a key. But we don’t have any way to generate that information. That information is generated randomly. It’s not done by a mathematical algorithm, so there is no relationship between the original data and what’s actually put in there — the token.

What you have is a bit of information that you keep at your side, which is called the token table. That gives you the crosswalk between the unencrypted information, or the untokenized information, and the actual tokens. The system that has the information that’s tokenized can never go back. They can never actually look at the tokenized data and find out the original information.

Encryption is different. Encryption is two-way. You can encrypt the data, and you can unencrypt it. If you have access to the key and the encryption algorithm, you can decrypt the whole information, if you hold onto it. That’s the difference between tokenization…. With tokenization, you can hold on to the data with the tokens but not actually get back to the original information. You need that crosswalk table or that token table that’s originally created. Without it, it’s impossible to actually get back the original information.

Tokenization is more secure. The problem that we have today is that cloud-based solutions aren’t typically designed with tokenization or encryption in mind. They’re designed for broad-based consumption. As a result, when it comes to the addition of tokenization technologies, they’re quite often layered on, so they get some of the information but not all of the information.

In the case of the example you were mentioning, of the PHI, we might have health information where we’ve taken information about diagnoses on a patient and a patient health care number and other information about them that’s very sensitive. We’ve put that into tokens, but their name is not. Some other data of low sensitivity is not tokenized, because they need something to index on inside that system.

We’re still in non-compliance from a section 30.1 perspective. We’re still struggling to get all the pieces of personal information into a state where we’re only keeping it in Canada. Tokenization is a very difficult solution to actually implement.

D. McRae (Chair): Yes, unless there are questions on this side. No? We’ll go back to you, then.

D. Routley (Deputy Chair): Okay. Do you foresee a way that an unbreakable tokenization-like system could be accommodated if the minimal personal information were allowed to be stored — the name? Everything else would be in a tokenized form. Is that an achievable response?

L. Carson: It’s going to depend on the solution, on the service that you’re looking at. Different cloud services are going to be constructed in different ways. From what I’ve seen, very few of them have data residency options. That’s how they refer to them: DRO. When they do have the data residency option, it’s not effective from a FIPPA compliance perspective. They typically retain control over the information, so it’s not effective.

Then it comes to looking at third-party solutions. There are a number of them out there. There are places like CipherCloud and CloudLock and a variety of different vendors that all do this. They do customized solutions for the biggest cloud-based services out there.

It may be that you’re dealing with something of a specialized nature that is brilliant in the area of teaching that you’re doing. But only people using university teaching in that area are using it. They haven’t designed a solution for it yet, so you can’t take advantage of that, whereas Massachusetts can or Caltech can. Or even the University of Toronto or McGill — they can take advantage of those technologies, where we cannot.

It makes a difference in how we teach and the type of education that we’re able to provide to our students.

D. McRae (Chair): Just for my clarity, because I’m not a computer whiz whatsoever…. The argument I think I’m hearing at the table is that if you allow encrypted data to be stored out of country, the data that is actually there is unreadable. I’ll call it mass data just for lack of a better word.

By accessing the key, by using the key, it allows an institution like UBC to then open up that data to read it, as such. But without the key, it is just a stored pot of data that you might take 10,000 years to figure out.

L. Carson: That’s correct. It’s all mathematically an algorithm. Without that key, you’ve got, essentially…. We call it cypher text. It’s just gobbledegook.
[ Page 105 ]

P. Hancock: One other point about encryption, though. It’s important to realize is that if you were to try to craft an amendment to section 30.1 that would allow encrypted data to be stored outside of Canada, that would be helpful. But it really wouldn’t solve the problem, because most of the systems that we’re talking about are not set up to encrypt data. I wish they were, but they’re not. There still needs to be some sort of balancing test for information of low sensitivity.

It is now, according to my clock, 3:25. I know we have…. Orvin is here, but we are ahead of schedule, and Cynthia is not here yet. We’ve gone for a couple of hours, so I’m going to say a recess for ten minutes. We will begin back at 3:35, unless we decide otherwise when Cynthia shows up.

D. McRae (Chair): It’s 3:35, and we are returning. In front of us, we have the College of Registered Nurses of British Columbia, represented by Cynthia Johansen and Orvin Lau.

Just for the sake of practice, we ask presenters to do 20 minutes of presentation, and then we have approximately ten minutes for a Q and A at the end of it. I turn the floor over to yourselves.

C. Johansen: Thank you, Mr. Chair. It’s our absolute pleasure to be here this afternoon. Thank you very much for providing us with the opportunity to be before you today.

I’m Cynthia Johansen. I’m the registrar and CEO for the College of Registered Nurses of B.C. With me is Orvin Lau. Orvin is a consultant with our college, and his expertise is in information security. He’s been advising the college now for 2½, three years.

C. Johansen: Under his tutelage, we’ve actually made some pretty significant improvements, and we’ve learned a lot about privacy legislation and its impact on the work that we do as a regulator.

I’ll give you — on the first slide, after the introductory page — just a little bit about the college. Nursing in the province of B.C. has been a self-governing profession since 1918. My organization, the College of Registered Nurses, has been through various names and legislation over that period of time. But in 2005, we came under the Health Professions Act, and our name changed to the College of Registered Nurses of B.C.

What do we do? We regulate, in the public interest, nurses — specifically, registered nurses and nurse practitioners. That means we set the requirements for entering the profession, and we ensure that those individuals continue to meet those requirements. When standards are not met, we have legislative powers to take action to deal with those situations. So we may, for example, investigate a nurse and determine that they can no longer be registered in this province.

We also have in place a continuing competence or quality assurance program to help nurses continue to grow and progress as practitioners and to maintain their competence. We also assess nursing education programs in this province to ensure that the graduates that they create will meet the entry level competencies required for practice in our province. I’m happy to answer any more questions you have about our legislative mandate.

I’m going to turn it over to Orvin now, who is going to talk a little bit about our experience with the legislation.

O. Lau: Okay. The first slide after the introductory slides is titled “Section 30: reasonable security arrangements.” Section 30 of the act currently states that public bodies need to make reasonable security arrangements against the risks of “unauthorized access, collection, use, disclosure or disposal.” One of our comments that we’d like to make is that we feel that “reasonable” has not necessarily been an effective standard to protect personal information.

One of the challenges we have — and I think a number of organizations, public bodies, can certainly attest to that — is that “reasonable” seems to be interpreted in such a way as whatever other people seem to find acceptable. Consequently, we actually find that organizations or individuals within the public bodies are storing information unencrypted on USB sticks or unencrypted hard drives. Consequently, this information is stored on these devices, and, possibly, they get lost.

As we’ve heard — I was listening in to the previous presentation — encryption is a big deal. Unfortunately, a lot of people don’t understand how to use encryption, and they, consequently, don’t use it on these storage devices. Even if you lock it in a safe, it seems that sometimes that information somehow seems to get out. There was an incident, I think about a year and a half or two years ago, in the news — the University of Victoria. They actually had an unencrypted USB drive with personal information. They locked it in a safe, and it still got broken into and it still got stolen.

What we’re saying is that’s obviously…. “Reasonable” seems to be a very low standard.

For most people, if you’re an IT professional like Larry Carson earlier…. He’s an IT professional. I’m very much an IT professional. I understand how encryption works,
[ Page 106 ]
and I know that you need to have that if you’re ever going to store information on these storage devices. However, I don’t think that’s a common understanding outside of the industry that Larry and I are from.

Consequently, our comment here is that we would like to say that we need a higher standard than reasonable. One of the challenges we’ve had at our own organization is trying to stamp out the use of these devices. It hasn’t been an easy thing to do, and that’s why we are making this point.

Just on the next slide, just to really emphasize it…. I know that you guys have all had a long day. I think you’d appreciate some comic relief here. As you can see in this editorial cartoon, in the back there, there’s a whole bunch of lost government laptops and lost banking laptops, and I’m sure there are probably some unencrypted USB sticks there. I think when the editorial cartoonists start to mock you, you actually have a real problem here. I thought you would appreciate that. You probably have had a long day.

The second point that we’d like to make is on section 30.1, storage and access only in Canada. As we understand it, the idea is that there are the concerns about the Patriot Act. We want to protect the personal information of British Columbians and make sure that foreign governments do not get access to this.

We see a real imbalance here, because although this applies to public bodies, it does not apply to the private sector. Consequently, and I think you probably heard this point earlier in the day…. The thing is that if you have a credit card, a phone bill, a cell phone or a bank account, these are all private sector organizations, and they have no restriction on the storage of their information. It’s more likely than not that they are storing the personal information that they collect in other countries besides Canada.

So one of the comments that we want to make is that we would like to actually have a change to section 30.1 to carve out what we call personal contact information. Certainly, we believe that private sector organizations, for billing purposes or contact purposes, are already storing this information outside of Canada. In a sense, this restriction that is being placed on public bodies is effectively closing the barn door after the horse has left. Why is it that we have this restriction in not being able to use these services outside of Canada when private sector organizations have absolutely no restrictions regarding that?

The reason that we’re looking to have this carve-out regarding section 30.1 is because as a college, and with our duty to protect the public, we want to be able to use the services in the U.S. and use the related web analytical information to be able to understand whether our registrants, the nurses of B.C., are actually reading the information that we send out to them, whether our communication is effective to them, whether or not they’re actually understanding the messages that they are getting, whether they’re actually following up on those messages by going to our website for more information, or whether or not they actually are paying attention to the information that we are presenting to them — which we do in the public interest.

Our real concern is that without being able to use this type of software, the web analytics software, effectively our only choice is to just send e-mail blasts to nurses and hope that they read what it is that we say. We’re not able to tailor our communications to the topics that are of interest to them, the concerns they may have regarding how they safely practise nursing. Because we are simply spamming them, consequently our nurses are going to become disengaged from our communications. If they become disengaged, it lessens our ability to protect the public with respect to the practice of nursing.

In federal legislation, as you know, there’s the CASL, Canada’s anti-spam act, because nobody likes spam. Even if it’s legitimate spam, nobody likes it as well. We feel that it’s important that we are able to tailor communications so that they’re relevant to the audience.

C. Johansen: Just to kind of provide a bit more context to the issue, we regulate 40,000 individuals. We compete with them for their attention on any number of issues, ensuring that what we provide them is relevant and related to their work environment or the practice that they are trying to do. Or we are providing information to employers, for example, about the nurses that they employ and that are regulated by us. Making sure that we can get the right information to the right person or group of people is actually really important for us in doing our work well.

It is both a benefit and a drawback of e-mail that it can become something that is just…. There’s so much there that people just can’t manage their in-box. I get it. I think we all probably have that experience. So how do we manage that? There are a lot of great products out there, but many of them — most of them, if not 100 percent of them — are unavailable to us because of this section of the act.

O. Lau: Going on to the next slide, the one that’s numbered 7 on the lower left hand corner but continuing on section 30.1. The comment that we have here on the slide is that it also hampers the ability for health care regulators to protect the public.

As we know, these days, the labour force is very mobile. You can essentially move to whatever province or state or territory that you wish to practise any particular craft, whether it be nursing…. But one of the problems with section 30.1 is it creates a lot of uncertainty for public bodies on how they can integrate their information. If we want to be able to, say, use a shared system with a different jurisdiction…. It could be the province of Ontario, for example, or our next-door neighbour to the south. It could be the state of Washington. It’s not that difficult for
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a nurse, especially because nurses are very much in high demand, to go and actually practise in the U.S. Then they can come back into Canada.

But one of the challenges of section 30.1 is that it makes it difficult for us to be able to see whether or not a nurse has committed certain infractions or, basically, if they’ve violated conditions that have been placed because they have actually done something contrary to the standards set by the regulatory bodies.

Because we’re not able to combine this information and see it at a higher level, it actually makes it easier for what we call jurisdiction hopping. You do something bad, say, in the province of B.C., and then you hop over across the line. You go and practise in the States, but because we’re not able to share that information that easily, or there’s uncertainty on how we share that information with other regulators, there could be a delay. Consequently, that individual could commit a very unfortunate act. But anyway, because of the delay, or maybe uncertainty, it makes it just that much more difficult for fellow regulators to protect the public.

C. Johansen: One of the things that CRNBC has been very actively engaged in is an international nurse regulators collaborative. It’s made up of a variety of countries: the United States; two representatives from Canada — Ontario and B.C. are the only two jurisdictions in Canada that have a pure regulatory role; the other provinces are associations that regulate, so their approach is slightly different — Ireland, the United Kingdom, Australia, New Zealand and Singapore. This group is starting to think about the global mobility of nurses and our regulatory responsibilities and the public interest.

One of the things we’ve been talking about is how we more effectively share information about past disciplinary history. Canada has had a number of examples where we have registered individuals who had practise concerns and/or blatant suspensions in the U.S., for example. But because it’s self-declared and we don’t share information with our colleagues in the U.S. very fluidly, we’ve actually registered people that we probably ought not to have.

It’s all fine and dandy when you figure that out and you can take action — pretty swift action. But it would be nice to actually have a preventative approach rather than a reactive approach.

Certainly, the regulators at the international level are really starting to think about this and what we need to be doing differently in the future to work together more collaboratively on these issues.

If our mandate is public protection, we need to be thinking very clearly about how we can ensure that we mitigate risk and we reduce harm before something happens. One of the ways to do that is by more effectively sharing information.

O. Lau: All right. The last set of points that we’d like to make are on the next slide, which is entitled “Sections 33.1 and 33.2 and disclosure.”

These are the sections of the act which authorize a public body to disclose information — in the case of 33.1, both inside and outside of Canada, and in 33.2, inside of Canada.

Now, our point here is that these sections are very long, they’re very complex, and they’re very difficult for organizations to understand. In order for us to understand it and to actually try and use it, public bodies need to actually engage a lot of costly legal advice in order to try and understand this information.

We are not taxpayer funded, but you can imagine that a public body that is taxpayer funded would then have to actually pay up the money to do this properly. For ourselves, yes, we actually have spent a lot of money in legal fees in order to understand these sections. It makes it difficult for us in terms of being able to move quickly, and it’s certainly a cost to B.C. nurses.

Furthermore, we’ve actually even gone so far as to take our privacy impact assessments and go to the Office of the Privacy Commissioner. What we have found…. We actually do have an exemption for regulators under section 33.1. The section, I believe is 33.1(1)(l) — just to emphasize, yes, it’s that deep into the legislation.

We wanted to implement web analytics software which was transiting through the U.S. It wasn’t even necessarily storing on any long-term basis in the U.S. But just the fact that it’s transiting through a U.S.-based server and has the potential to be accessed by a foreign government, we wanted to make sure: were we allowed to use this under the exemption of FIPPA that is available to us?

The response that we got back from the OIPC was essentially: “You do it at your own risk.” Unless someone actually makes a complaint against your organization, they cannot provide a concrete ruling. So we ended up spending a large sum of money on legal fees, going to the Office of the Privacy Commissioner, trying to get an interpretation on what we are allowed to do under this piece of legislation, and the only response was: “It’s risky, but we can’t provide any definite guidance here until someone actually makes a complaint, which the commissioner will then investigate. Then we’ll provide an order.”

I think it would be fiscally irresponsible for us to invest hundreds of thousands of dollars to implement a system just to test that piece of legislation, that provision under the act, and then be forced to pull it out because now we have a final decision from the commissioner.

Our point here is that we think there is a real need to simplify these sections. I know it’s not a simple issue, but if in any way those sections of the act can be simplified, I think public bodies would appreciate it and certainly those that fund the public bodies.
[ Page 108 ]

C. Johansen: We have a little conclusion sheet. It’s basically what we’ve said so I don’t think we need to go through it. But we are welcoming your questions and hope that we’ve provided some insight into how we’re impacted.

E. Foster: Thank you for your presentation. I’m curious. You’re not publicly funded; you’re funded by your members. Why are you considered a public body?

C. Johansen: We are a creature of legislation. The Health Professions Act delegates the authority of regulation of professionals to colleges. There’s a provincial government regulation that stipulates which professions will be self-regulated. Registered nursing and nurse practitioners is one. In accordance with the act, we fund ourselves through the collection of registration fees from individual registrants.

E. Foster: Under that piece of legislation, that designates you, then, as a public body.

O. Lau: We’re designated under schedule 3 of this act here that we’re looking at as a local public body.

D. Routley (Deputy Chair): Thank you for the presentation. The arguments for watering down sections of the act, whether it’s this section or other sections, have always pivoted on two things: the expediency of an organization’s administration and the complexity of the act.

Successive commissioners have recommended to this committee that we not take any action to water down the act because it is technologically neutral. It is more a case of the organization not being aware of its responsibilities and its powers under the act to, in fact, share information. They’ve told us that all of these examples, when public harm is put forward as a reason, are accommodated within the act.

If you, as an organization, feel that there’s information that you have about a nurse that could impact the personal safety of any person or public safety or may be a risk to community or the environment or anything else, you are empowered under the act to release that information.

We’ve been cautioned by commissioners that an action to water down the privacy protections of all of society based on accommodating the expediency of individual organizations in individual pursuits within their scope is a very dangerous path to follow. I’m very nervous about these kinds of requests. We are being counselled by the commissioners who were at the table when these acts were first conceived that it’s more a case of a lack of training within organizations not knowing what they’re allowed to release.

Like a hospital where someone has revealed information in an emergency room that shows there’s a potential risk to someone else further along, whatever tragic event might have happened, you are empowered by this act to release that information. Of course, it’s at your peril, but you are empowered by the act to share that information.

What we’re always being asked to do, in a sense, is to make it easier, to make it a lot more simple and essentially accommodate a lack of training and a lack of awareness of the act. That’s my comment on the presentation. I think your concerns are obviously valid and relevant. But I’m reflecting to you my own concerns about what you’re asking this committee to consider.

C. Johansen: So we’re clear, we’re not asking you to water it down. I think, under section 30, we’re asking for you to set a higher standard, which may actually be more complex, not watered down. In section 30 — and 33 and 32 — it’s around being very clear. Again, it’s about, as Orvin suggested, when it’s not clear enough about how we are to proceed. Yet even when we go to OIPC and ask for direction, the answer is: “We don’t know.”

It’s not because they don’t care. I mean, they took a lot of time with us, and we appreciated greatly the effort of the commissioner to look at our issue and to provide advice. But when it actually isn’t clear, what we’re asking for is clarity so that we do the right thing. Our approach — maybe it’s just the culture of being in the work that we are, which is public protection — we are inclined to look for preventative approaches to our work, rather than reactive.

Even as the Health Professions Act, for example, has been created, it is actually a very reactive legislative framework. But what we’re asking for is an option to look at ways to be more preventative in how we do our work.

O. Lau: Yeah, just to address the member’s point, I agree that when it comes to expediency, if I were in your shoes, I would definitely share the same concerns. Especially with some of the information that we deal with, the sensitivity of that information, I would certainly have no comfort in actually having that information reside outside of Canada. But the point I’d like to make is that, when we’re asking for that carve-out, it’s not just a matter of expediency. It’s also a matter of practicality because of the fact that information has already left.

We basically said for information that’s already going to be outside the U.S., in my view, why do you need to restrict public sector organizations as well? That’s my response to your comments, which I think are fair. In terms of all the other types of information, yes, I would agree with you. Expediency — everyone is looking for that. I would cer-
[ Page 109 ]
tainly be hesitant, if I were in your shoes, to actually go down that path. But for where the information already is outside of Canada, it’s no longer a moot point. Essentially, you’re trying to stop something that has already left.

On the other point, in terms of being technologically neutral, I think that one of the challenges also is that technology is moving at such a fast pace. I don’t think the committee, or for that matter…. It’s hard to contemplate what the exact impact is on the legislation on such a fast-moving area?

I agree with you in terms of there needs to be more training, though we don’t know where that training is from. Also, in the design of all these systems, sure, we may be empowered on a case-by-case basis to provide the information, but where’s that threshold where you can then release that information? If you’re providing an integrated system, is it: okay, we can provide it if there’s just ten nurses that we’re talking about, or 100? When you’re talking a system, you’re talking like 40,000 nurses.

We can’t put all of that information in. It has to be done on a case-by-case basis, in which case, you actually are spending time and money to figure out whether or not this information should be released.

Those are just the sort of questions I think you should also contemplate when considering the expediency argument.

D. Eby: I’m going to put all my questions in one here, and you guys can coordinate your answers as you see fit.

A higher standard than reasonable. I’m wondering whether you have specific language in mind that you’re recommending to the committee instead of the word “reasonable” or to modify reasonable.

The second question is: under section 30.1, carving out personal contact information, do you have specific examples of what you mean by that? Is it like a phone number, e-mail? Do you have a list of what you would carve out?

Then the third is around…. I think I heard you talking about customer-relation-management types of software products, like MailChimp or Salesforce or NationBuilder, that track e-mail openings and so on and allow you to understand if people are reading your e-mails or not, or target them. Have you spoken to any of the service providers and said: “We’d like to use your product, but we wish you had servers in Canada”? What has the response been from any of them, if you have?

O. Lau: You may have to refresh me on the questions as I attempt to address each one.

The first one was: do I have something else besides “reasonable”? I’m not a lawyer, so I don’t know what stronger language could be used in that case. But one possibility, because of the fact that technology moves so quickly…. Maybe there could be a provision put in the legislation to say to provide regulations on that. That way you would be able to respond to it on a faster and more proactive basis.

C. Johansen: One of the places that we often look for advice and counsel, in terms of setting our own standards, is at the international ISO level. I’m curious — I don’t know the answer — if they have standards around the encryption of information. So looking to best practices — maybe it’s difficult to reference that in legislation or regulation — to talk about the highest standard, as set by an international organization like ISO, that does look to the community for setting standards that are high and that we follow as best we can.

O. Lau: I think to give a private sector equivalent would be like when it comes to credit card security. There’s an organization known as the payment card industry data security standards. It’s regulated by, I guess, the Security Standards Council, which is the organization formed with Visa, MasterCard, American Express, as well as other credit card brands. They effectively are able to respond on a much quicker basis. When there were recent compromises in technology, they were actually able to put out something in a new document that said: “No, these forms of encryption are broken, and they’re no longer acceptable.”

Perhaps one way to deal with your question is that maybe we can’t find a way around the word “reasonable,” but maybe then we need to have a provision for a regulation, where you can actually react to it on a faster basis.

D. Eby: A list of the personal contact information you would carve out, specifically.

O. Lau: I’d say I would base that to make that parallel to the definition of business contact information that already exists in the act. I believe in the act it does provide for business contact information. So I’d just provide the parallel for personal contact information.

D. Eby: Then the last question is: have you contacted any CRM companies to say: “Would you move your servers, or would you locate servers in Canada?”

O. Lau: Yes, we have actually had that discussion. Their response has been: “We’re thinking about it.” But I suspect that they need to do a cost-benefit analysis on that, whether or not they’re able to gain enough Canadian customers to actually use that. The one that we were talking to in particular use Microsoft Azure data centres. There isn’t one coming on line in Canada until 2016, and in the technology world, a year is a very long time.

D. McRae (Chair): Thank you very much. It is now 4:05. You did exactly 30 minutes. I appreciate your presentation.

David, we’re just going to reset the panel here. Like I said before, our practice is 20 minutes for a presentation and ten minutes for questions-and-answers.

D. DeCosse: With the stumbles and everything, I’ve got it down to 15. I rewrote this thing four times.

D. DeCosse: I called this thing “FOIs and Lies.” In the past, you’ve listened to presentations by those who are knowledgable in the FOI field and speak eloquently. Now you get the blue-collar version of an FOI user.

I’m here today as a simple layperson who likes to know where our tax dollars go and what information there is to justify what waste I witnessed during my 30 years at SkyTrain. I will attempt to present three examples of what I consider abuse of the FOI sections by TransLink and the FOI commissioner’s office, though I may have many personal request cases I could have referred to.

In the end, hopefully I have proven this vehicle of openness — which was created to allow we, the humble taxpayer, a view into our government — is now broken down on the side of the road and needs serious maintenance. How can you tell I’m a mechanic?

The purpose of the act is to “make public bodies more accountable to the public and to protect personal privacy by (a) giving the public a right of access to records.” Please note that all FOI requests to TransLink’s wholly owned subsidiaries are handled through TransLink’s FOI office.

Example 1: sections 22(1), (2) and (3) and bizarre others. On August 23, 2004, a repeat yearly request to TransLink’s head office for remuneration of SkyTrain’s management employees, as per section 22(4)(e) and (f) of the act. Mr. Chris Harris, TransLink’s FOI manager, ignored this yearly request, which led to an official complaint to the freedom-of-information commissioner’s office — Mr. Loukidelis, then the FOI commissioner — on November 25, 2004.

Mr. Harris finally responded with sections 22(1), (2) and (3) for TransLink’s denial of information. Then the commissioner’s office put a new twist to TransLink’s grounds for refusal, which led to a number of song-and-dance routines.

Example. On July 29, 2005, Michael Skinner, portfolio officer, stated: “SkyTrain is not a public company. Therefore, no complaint.”

On August 22, 2005, Mr. Skinner closed both my FOI requests. “SkyTrain is not a public company.” I’m confused, as we taxpayers keep dumping money into it.

On November 22, 2005, Mr. Loukidelis, in a letter, explained to Mr. Kevin Falcon that his FOI office’s reasons for TransLink’s wholly owned subsidiaries’ exclusion from the act was a legislative oversight.

I sent a letter to Mr. Loukidelis to inform him that despite his claims of legislative oversight, the fact was that TransLink and its wholly owned subsidiaries were still answering taxpayers’ FOI requests, as in business as usual. There was a total of 288 FOIs received by TransLink during the period that TransLink refused to fill my request, which started August 23, 2004, to April 6, 2006, when I could resubmit my original request. There was no response from Mr. Loukidelis or anyone in his office to my TransLink FOI business-as-usual claims.

This battle for remuneration was dragged out until September 27, 2010, and ended in an order, F10-33, by Jay Fedorak, the adjudicator.

Funny how the commissioner’s office is concerned about technicalities but not in ordering TransLink to observe his claims that TransLink’s wholly owned subsidiaries are not required to respond to other taxpayers’ FOI requests. Nor does it appear that Mr. Loukidelis’s office was too concerned about the time and the taxpayers’ dollars wasted, August 24 to September 27, 2010. Why don’t you ask Mr. Loukidelis to explain that one? I’m totally confused.

The second FOI magical mystery tour under “A search for records was not adequate.” TransLink and the line worker — that’s me. As Ms. Julie Raymond put it, in my misrepresentation of the truth, “A Brief History,” I wrote a response to an Abbotsford Times story on TransLink. I was later called upstairs by Ms. Julie Raymond and the SkyTrain manager, who did not like my opinion letter and were contemplating disciplinary action against me.

So SkyTrain FOI 2012-006 was started January 2, 2012. I requested all notes and e-mails and also all notes and e-mails sent to TransLink as per Ms. Raymond’s statements. I received four pages — one from Ms. Tracy Bolognese, FOI officer, stating: “All responsive records attached.” I received one page of handwritten notes — by who, I don’t know — a copy of a letter sent to my home by Ms. Julie Raymond, basically saying I was a liar; and a copy of my letter to the editor. Nothing from TransLink.

March 16, 2012, FOI complaint sent to TransLink: “Incomplete search for documents.” On May 15, 2013, I received some TransLink information that I’d been looking for from another FOI requestor who TransLink sent my personal information to by mistake, proving there were more documents which TransLink was not revealing.

Finally, after numerous communications with Ms. Kunkel at TransLink, what I received were 28 pages of further e-mails from TransLink and SkyTrain manage-
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ment, as was suspected to exist. But true to TransLink’s style, the important notes I needed had been wiped out. So this dog-and-pony show continues as Ms. Denham’s office, with extensions, is helping to drag out this January 2, 2012, FOI request to this date.

Ironically, Ms. Kunkel had put out a TransLink company-wide bulletin — you have a copy of this one — which states, basically, “What you say about someone in an e-mail belongs to that individual,” which does not seem to apply in my case. It’s slated for another adjudication. Ms. Kunkel’s bulletin also included, “Public bodies should document their business decisions. There are legitimate times when a phone call or face-to-face may be more appropriate.”

Mr. David Greer, investigator for the FOI commissioner’s office under Ms. Denham…. His response I found interesting. He said: “I don’t read Ms. Kunkel’s statement the same as you. I think she’s just reminding staff that sometimes it’s better to talk to people rather than write to them, which seems valid, regardless of accountability issues.” Again, I’m confused. Why don’t you ask Ms. Denham to clarify that one from her people?

I’ve saved the best one and, I believe, the most serious for last — section 8(2)(b), confirm or deny existence of information in in-camera submissions and adjudications.

Bullying at SkyTrain. A question was raised as to why a bully was allowed to affect a number of SkyTrain vehicle techs over a period of time. Knowing that all victims requested financial information on the cost of all this mess to the taxpayers, the FOI was started December 12, 2012, as one of the victims, frustrated with SkyTrain’s lack of action on this matter, took SkyTrain to the Human Rights Tribunal and won his case. This involved lawyers, management, employees and other costs.

TransLink again used section 8(2)(b) to deny information to the requestor. I have also, separately, asked how much TransLink money has been spent on legal fees over the past ten years by TransLink’s FOI office. Money spent only, no case details.

This is tied up with section 14, solicitor-client privilege — adjudication pending on that one.

The main point I present to you is that the FOI commissioner’s office’s use of in-camera affidavits, in which SkyTrain’s George Bell and TransLink’s Sabina Kunkel were both allowed to submit affidavits on TransLink’s and SkyTrain’s behalf, was accepted by the adjudicator, Mr. Ross Alexander, order 14-48 on May 25, 2014.

I wrote to Ms. Cindy Hamilton of Ms. Denham’s office: “Do I have access to this material, so I can respond to it?” Ms. Hamilton replied “Our adjudicators are very careful to allow a minimum amount of material in camera so that parties do have submission material to respond to.”

What did I receive? One line, out of one to 15 paragraphs, or four pages, of Mr. Bell’s affidavits, which read: “The access applicant evidently heard rumours about the human rights complaint settlement.” Ms. Kunkel’s two paragraphs: “The access applicant is on a fishing expedition.”

The problem with Ms. Kunkel’s fishing expedition — and seriously wrong with Mr. George Bell’s rumour statements in his affidavit to Mr. Ross Alexander — was the victim in question finally caught the bully on tape making what the victim considered a threatening statement to him.

I saw the tape and was later called up to a meeting on March 20, 2014, by the victim, where Mr. George Bell and other SkyTrain management were present. I explained that I had been involved in the victim’s ordeal with this bully from day one.

Mr. Bell’s rumours and Ms. Kunkel’s fishing trips are total misrepresentations, as far as I’m concerned. They knew I was involved, as Ms. Julie Raymond would say. I would assume Mr. Bell’s affidavit would have been submitted to Mr. Ross well after my involvement with him and the victim. He knew I was fully aware of the human rights case.

Initial submissions from TransLink’s lawyer made for Mr. Ross Alexander on May 21, 2014. Again, my meeting with the victim and Mr. Bell was on March 20, 2014, which brings three questions. If the rumours and statements on Mr. Bell’s four-page affidavit are what I consider b.s., then are there other facts and statements that are misrepresentations that I did not get to respond to?

As Mr. Alexander accepted these two affidavits, he must have accepted them as evidence to help his final decision. In which case, is his ruling still valid, and who will look into this matter to see the blacked-out affidavit?

Ms. Hamilton’s statement: “Our adjudicators are very careful to allow the amount of in-camera information so submission material to respond to….” Is Ms. Denham in agreement with this statement by her registrar of inquiries? Is one line a reasonable amount of information to respond to?

Thank you. I hope my three short glimpses into my adventure-land FOI experience has shown what those of us ordinary taxpayers, who cannot afford to retain legal experience like TransLink, have to put up with to acquire information from a government we’re forced to support through taxes.

Yet I cannot stress how frustrating it is for an individual such as myself to witness a fellow worker bullied over time and then finally see him physically shaking because he felt threatened by some bully’s words, knowing that those upstairs, who make $130,000 to $140,000 a year and who allowed this to happen, will eventually happily retire without explaining why or being held accountable.

In the end, this FOI Act…. Is this just a vehicle for government and its companies to hide under, with a lot of legal mumbo-jumbo?

D. McRae (Chair): Actually, I got you down as 14, but I won’t split hairs there.

K. Corrigan: In terms of recommendations and what can be done to improve the act, because that’s our mandate…. Or to improve government — I think that’s probably within our mandate as well.

Certainly, it would seem that one area that we need to look at is wholly owned subsidiaries not being FOIable — not being able to get that information. Or subsidiaries…. That was part of what you dealt with. That was a response you received.

I’m assuming you would recommend that subsidiaries should be FOIable if they’re wholly owned or partially owned by government. I’m not sure, but that was one of the responses you got that troubled you.

Don’t let me put words in your mouth. I’m just trying to parse out of this where you might see improvements. You don’t have to offer that, but I’m just trying to make the most use out of your presentation.

D. DeCosse: I guess what I’m saying and why I mulled this over is because, to me, as an ordinary taxpayer…. You’re putting your kids through university, you’ve got a mortgage, and you’re just living paycheque to paycheque, like everybody else. The thing is that I can’t afford to run to a lawyer every time I want to know what’s going on or I want to know how much money we spent on stuff. I read stuff like Mr. Skinner’s, “It’s not a public company.” Is he telling me the truth? Do I go hire a lawyer to find out what is the truth?

I think the opening statement in the FOI Act itself says: “to make public bodies more accountable to the public.” Well, I’m part of the public, but I can’t afford lawyers every time I turn around. To me, when I witness what happens, I want to know: why did you waste all this money on this? Why wasn’t this dealt with in the beginning, when the first person was abused or the second person?

It seems that when you put a price on something, people listen more, because now we’ve had four people that have been subject to this.

The thing is, if I put a price tag on it…. I go up there, and I say: “Well, you guys spent half a million dollars letting this nutcase run around. Why?” Then you would get an answer. But right now everything’s just subject to this.

It’s like my claim asking: “How much money does TransLink spend trying to keep information from us by hiring lawyers?” I don’t want to know any case details. I just want to know how much money they spend.

Did that help? That’s what I mean. It’s like…. Look at the website. It says: “Wholly owned subsidiary.” To me, as a layperson, it’s going: “Well, we own that — 1 percent, 2 percent, 10 percent. We own it.” Where do you put the stop line?

D. Eby: I just wanted to take the opportunity to thank the presenter for bringing this information forward. Earlier in the day, we had a number of presenters raising similar points around different organizations. The University of British Columbia has a number of wholly owned subsidiaries. We heard about school boards that have wholly owned subsidiaries. Very similar frustrations. It’s very useful for us to have this practical information, your personal experience and a real case to assist us in our deliberations.

I sure appreciate you making the effort to come here and present. We don’t see a lot of laypeople, frankly, coming here. We see a lot of people who are professionals, in one way or the other, in the industry. So it’s great to hear from a person out there who’s just had some personal experience with this. It’s very useful for us. Thank you.

D. DeCosse: Well, when you get somebody that’s a grown man standing in front of you shaking because somebody threatened them, somebody has to say something.

K. Corrigan: I just want to get something on the record here, if that’s okay, before she starts. Is that okay?

D. McRae (Chair): How about we get going? Then before we start, we’ll come back to that.

Sorry, Lisa. Before we begin, MLA Kathy Corrigan wishes to put something on the record, if that’s okay.

K. Corrigan: Some people may know this, but I wanted to let everybody know that Lisa is a constituent of mine. I’ve raised issues related to Lisa and her daughter Carly in the House. I didn’t want to try to suggest that this is not somebody….

In fact, I’ve talked to Lisa, and I suggested that she come before the committee. I think her circumstances — specifically with regard to FOI, not the whole case
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— probably are very relevant to the deliberations. I just wanted to get that on the record.

As is the practice of this committee, we would ask for a presentation of 20 minutes in length. Then, if there are questions and answers afterwards that we could participate in as committee members, we will allow ten minutes for that as well.

L. Fraser: My name is Lisa Fraser, and I am the mother of Carly Fraser, who committed suicide one day after her 19th birthday.

I’m here today to tell you about the challenges I’ve had in gaining access to crucial information about Carly’s dealings with the government. I encountered these challenges both before and after she committed suicide.

I want you to note and remember that my child was under a voluntary care agreement at the age of 15. Carly ran away, and I came to the difficult decision to give her care to the ministry rather than have her live as a vulnerable teenage runaway. Under ministry care, I would at least know where she was. For one year, everything was good.

Against my wishes, at the ripe old age of 16, she was moved into a basement suite by herself — moved away from the foster home where she was receiving supervision and into the basement suite. In the first two months, she was sexually assaulted and raped. I requested counselling for her, and they replied that she has to request the services herself.

She was 16. She doesn’t know she needs the services. The ministry is supposed to act like a concerned and caring parent. This did not happen.

I have not been able to get any information on who made the decision to move her to a new apartment and why that decision was made. I was at every meeting with the MCFD, but there were no meeting minutes, citing privacy issues.

Every time she was in a psych ward after this, they said they could not tell me anything, even though I was her parent and guardian. This was a person under the age of 19 with a caring and involved mother and family. Because she was under the age of majority and unable to make rational decisions, I should have been privy to all her medical and other files. I should have been consulted about her care.

I received my own file from MCFD heavily redacted. My request for Carly’s MCFD file was rejected because she was recently deceased. The documents I received from my MCFD file have brought other questions about the ministry’s involvement in Carly’s life.

For example, there are a series of e-mails about the efforts to get Carly in assessment at the Maples. Ministry workers had difficulty determining who should be dealing with the referral, and there were indications that there was a significant backlog of youth awaiting assessments at the time.

Carly did not receive the assessment. Because I cannot access her records, I cannot find out why the assessment didn’t happen. Knowing why Carly didn’t receive the assessment, which the ministry workers indicated was imperative, is clearly something that is deserving of public scrutiny, but the information is not available.

I believe that the ministry failed Carly multiple times during her life and that the ministry decisions contributed to her suicide.

In considering whether a disclosure of personal information constitutes an unreasonable invasion of third-party privacy, the head of the public body considers the circumstances, including — section 22(2)(a) — whether “the disclosure is desirable for the purpose of subjecting the activities of the government of British Columbia or a public body to public scrutiny.”

MCFD’s failure to provide Carly with the appropriate services, supports and living arrangements make the disclosure of her file desirable for the purpose of subjecting the ministry to public scrutiny. However, when I made my FOI request for Carly’s records, that argument was rejected.

Section 25 of the act states: “Information must be disclosed if in the public interest.” That argument was also rejected when I requested Carly’s records.

I strongly believe that decisions of the hospitals who released her five times, even though she was clearly having suicidal thoughts, also contributed to her death.

If MCFD and the hospitals stand behind privacy issues, the truth cannot come out. How do we make them accountable? Anyone over the age of 12 controls who gets access to their records. This is too young, and it makes it very difficult for parents like me to access their kids’ records when they are in crisis during the teenage years.

When my request for Carly’s records was rejected, I was told that I had not demonstrated that releasing the records would subject a public body to public scrutiny or that it would be in the public interest. The media coverage of Carly’s death and the deaths of the other youths who have been in the spotlight recently refutes that assertion. It is crucial that the public knows the details of how the system failed Carly. We must know what happened and why, in order to ensure that no other children are failed by MCFD and the mental health system as Carly was.

Carly’s backpack was found in Stanley Park, close to where she jumped. Her comprehensive plan of care was inside. This was one of the documents I was denied access to through the FOI process. The comprehensive plan of care indicated that Carly’s placement in south side group home was to be a long-term placement until she
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was ready to live on her own. It also indicates that MCFD knew that Carly was experiencing depressive symptoms, had suicidal thoughts, and that she had attempted suicide in grade 8. In addition, it refers to her use of street drugs.

The comprehensive plan of care refers to Carly’s refusal to do her chores and that she needed to acquire a significant number of life skills prior to living on her own. The comprehensive plan of care supports what I said to the ministry at the time they wanted to move Carly from the group home to an apartment. I said that she wasn’t ready and it was inappropriate to place her there.

I strongly believe that the comprehensive plan of care is just one of the many documents in Carly’s file that clearly demonstrate that the ministry failed Carly by placing her in an apartment when it was clear she needed the stability and supervision of the group home.

Had Carly’s backpack not been found and returned to me, I wouldn’t have access to the comprehensive plan of care under the current legislation. Documents like Carly’s comprehensive plan of care help to piece together what went wrong and why. If such documents are not released, how can a public body like MCFD be brought under public scrutiny? Why should the ministry be able to hide behind Carly’s recent death to deny me access to her records?

I believe that this committee must bring forward recommendations to change the FOI law to find a better balance between the rights of the recently deceased and the need to make changes to prevent deaths like Carly’s.

D. Eby: Not so much a question — the presentation was quite clear — as much as a thank-you for coming to the committee and sharing what must be a very painful story for your family. It’s critically important for our committee to hear from people across B.C., including in very difficult situations, so your courage in coming here and presenting to us is greatly appreciated. Thank you.

K. Corrigan: I don’t really have a question, because I’ve talked to Lisa a lot over the last several months, but I want to add, as well, thank you, Lisa. I think bringing such a tragic story to us — and you’ve been very, very brave in dealing with this publicly — just demonstrates in a very real way the impact of our laws and how much they can make a difference to individuals and families. It is really important. I agree with David. It’s really important that you came forward and certainly will give all of us a lot to think about in terms of possible changes to the law.

As well, it’s part of a larger thing. This committee is dealing with freedom of information and protection of privacy — the act. But we’ve also been hearing some things that are making us think there are other things that need to be done, that are related — records retention, and so on. But it also reminds us that pieces of legislation and how government works come together in many different ways.

I think, in your case, what has happened is a failure on multiple fronts — not just the inability to get the information now, which is what you’re trying to do, but arbitrary age limits and a variety of different failures. So thank you so much.

D. Eby: I was just wondering. In my previous experience, when there’s an untimely and unexpected death of a young person, the coroner’s office is involved in some way. Also, in their role, they collect all the information to do their investigation. They have been known to provide that information to families. Did you have any interaction with the coroner’s office at all?

L. Fraser: I know the coroner is looking into it. I haven’t had any answer yet.

D. Eby: But they didn’t approach you and say: “We’d love to work with you, and…?”

D. Eby: Okay. And their response to you was, “You can’t have access to these records,” or…?

K. Corrigan: Yes, the coroner’s office has been contacted, and we’ve helped Lisa with that as well. One of the challenges is that because Carly’s body was not found — although it was very clear that she’d passed away, because of so many different circumstances…. She was seen jumping from the bridge and so many other different things. Her backpack was found, and she said she was going to do it on that day, and so on. But there’s no death certificate yet. That’s an issue with the coroner.

One of the things that we’re working on with Lisa is to try to get a death certificate, and she has a lawyer doing some pro bono work on that. I’m not sure exactly where that is. We’ve asked for a review from the ministry as well. We’ve also approached the Representative for Children and Youth and said: if the government won’t do a review, then will the office do a review?
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We’re attacking it from multiple fronts. But I thank you, David, for that. That’s exactly right. It’s another approach.

D. McRae (Chair): Lisa, if you have some documents you wish to submit to the committee, the Clerk will take them. I know it’s obviously a trying time, to say the least, but if you wish to make any other recommendations to the committee, we can take on-line submissions up till January 29, 2016, and it would add to your body of work to date. Thank you very much for coming today.

D. McRae (Chair): Are you here as a visitor? We are scheduled to go to five o’clock. Were you hoping to use this committee’s time to present?

D. McRae (Chair): Before you begin there, Stephen, please make sure you state your name and such before you begin. Also, I do know that at least one committee member will have to leave — though quorum will still be retained — in about seven minutes, if not a little bit before that time. We are still sitting as a committee, so I turn the floor over to yourself, sir, and you are now in Hansard.

S. Bohus: Thank you very much. My name is Stephen Bohus. I did address the committee at the previous Vancouver public hearing. I just wanted to raise one point about the definition of a “local government body.”

Speakers earlier this morning and also this afternoon raised concerns that corporations or advisory panels that have members that are appointed by the government…. That’s in the definition of a local government body, but that definition, I believe, needs some improvement. I will read that section of the act. There was one issue where you had the threshold that all the body had to….

This is schedule 1 — definitions in this act: “‘local government body’ means….” I think this is very key to get the wording right or updated. It says: “(n) any board, committee, commission, panel, agency or corporation that is created or owned by a body referred to in paragraphs (a) to (m)….”

I just want to stop there and say that it would really be helpful if it said that if any board, committee, commission, panel, agency or corporation that is created or owned “with a 50 percent or greater, by bodies.” This could be like multiple bodies, public bodies, owning a corporation, not just one. That would help expand the definition.

I think the second part is where the committee should take really special care as well. It says: “…and all the members or officers of which are appointed or chosen by or under the authority of that body.” This could be a very, very big loophole in the event that one member is appointed by a body or is appointed by another public body.

Let me suggest that either that section be completely struck or maybe clarify…. Like, regardless of whether all or any of the members are appointed, it doesn’t have to be the authority of that body. It could be the authority of any body subject to FIPPA or access-to-information legislation. That way the legislation can be tightened up. And issues with accessing records, whether it’s from the UBC corporations and city of Vancouver, the Vancouver Economic Commission, the property endowment fund, the EasyPark, the TransLink-related company — that could be tightened up.

That’s, really, my suggestion for the committee. I was asked that question: what could be improved? I think that is one section that could be greatly improved.

D. Eby: Stephen had a document which he provided to me, which had some notes on it that clarified some of his remarks there. It might be a useful document for the whole committee to have, if the Clerk could help us with that.

D. McRae (Chair): Stephen, at the end of this presentation, we’ll ask you to submit that to the Clerk. It will be distributed to all members, if that would be okay.

I also wanted to point out that in my previous presentation, I was documenting issues with the city of Vancouver from 2010 and later. I didn’t make any FOIs prior to that, so it’s pretty recent for my submission.

D. McRae (Chair): Perfect. You have the distinction of being the only person to present twice to this committee today.

Noting the time, and all the presenters have now presented, I adjourn this committee.

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2) Stanley Tromp
3) Laura Millar
4) Sara A. Levine, Q.C.
Ryan Berger
5) Rob Botterell
6) Joan L. Rush

Chair:	Don McRae (Comox Valley BC Liberal)
Deputy Chair:	Doug Routley (Nanaimo–North Cowichan NDP)
Members:	Kathy Corrigan (Burnaby–Deer Lake NDP)
	David Eby (Vancouver–Point Grey NDP)
	Eric Foster (Vernon-Monashee BC Liberal)
	Sam Sullivan (Vancouver–False Creek BC Liberal)
	Jackie Tegart (Fraser-Nicola BC Liberal)
	John Yap (Richmond-Steveston BC Liberal)
Clerk:	Kate Ryan-Lloyd

7) Canadian Union of Public Employees, Local 116	Roger De Pieri
	David Lance
	Rachel Champagne
8) West End Neighbours	Virginia A. Richards
9) Vancouver Coastal Health Authority	Steven Tam
10) FutureBook Printing, Inc.	Dana Felske

12) University of British Columbia	Paul Hancock
Research Universities Council of British Columbia	Larry Carson
13) College of Registered Nurses of BC	Cynthia Johansen
	Orvin Lau

REPORT OF PROCEEDINGS (Hansard)

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

REPORT OF PROCEEDINGS
(Hansard)

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