The committee met at 9:02 a.m.
[R. Glumac in the chair.]
R. Glumac (Chair): Good morning, everyone. My name is Rick Glumac, and I'm the MLA for Port Moody–Coquitlam and the Chair of the Special Committee to Review the Freedom of Information and Protection of Privacy Act. It's an all-party committee of the Legislative Assembly.
I'd like to acknowledge that we're meeting today on the traditional territories of the Lək̓ʷəŋin̓əŋ-speaking people, the Songhees and Esquimalt First Nations.
I would like to welcome everyone who is listening and participating in this meeting. Our committee is tasked with reviewing the Freedom of Information and Protection of Privacy Act.
We'll be hearing presentations today to receive input on the act. British Columbians can also share input by making a written, audio or video submission by 3 p.m. on March 31. For details on how to do that, you can visit the website at www.leg.bc.ca/cmt/foi. All the information we receive will be carefully considered as we prepare our report to the Legislative Assembly.
For today's meeting, each presenter will have ten minutes to do their presentation, followed by 15 minutes for questions and answers with the members of the committee. All audio from our meetings is broadcast live on our website, and a complete transcript will also be posted.
I'll now ask the members of the committee to introduce themselves, starting with our vice-Chair.
J. Rustad (Deputy Chair): Hi. I'm John Rustad. I'm the MLA for Nechako Lakes, and I'm also the Deputy Chair of the committee.
T. Shypitka: Tom Shypitka. I'm the MLA for Kootenay East.
A. Olsen: Adam Olsen, MLA for Saanich North and the Islands.
H. Yao: Henry Yao, MLA for Richmond South Centre.
S. Chant: Susie Chant, MLA, North Vancouver–Seymour.
K. Paddon: I'm Kelli Paddon, MLA for Chilliwack-Kent.
R. Glumac (Chair): Excellent. Assisting the committee today we have Karan Riarh, Darryl Hol, Jesse Gordon and Emma Curtis from the Parliamentary Committees Office; and Billy Young from Hansard Services.
Our first presenter is Charla Huber. She is representing the B.C. Association of Police Boards.
Welcome, Charla. You have ten minutes for your presentation. We look forward to hearing from you today.
Freedom of Information and
Protection of Privacy Act
B.C. ASSOCIATION OF POLICE BOARDS
C. Huber: I'm Charla Huber. I'm president of the B. C. Association of Police Boards. I've consulted with our members for what BCAPB would want to put forward today.
First of all, all the police boards, as well as police departments in B.C., believe in free access to information and being open and transparent. The issue that I wanted to bring forward today is not necessarily the number of FOI requests that we're receiving. As noted, the FOI requests are constantly growing. It's not necessarily the number of requests but the breadth, the scope and the complexity of requests with municipal police departments that are already understaffed and stretched thin.
Obviously, some requests that are complex are very valid, but the issue that we wanted to bring forward was serial FOI requesters. Every single municipal police board has individuals that are putting in numerous FOI requests per month. Some departments have individuals putting in up to eight requests a month. Some of those requests could take two staff two weeks to address. The requests, in the current legislation, don't have to actually have a topic.
An example of this is someone saying: "I would like all of the emails from the police chief to the board for the last seven months." Then that becomes a fishing expedition where there actually isn't a topic that the person is looking for. They're just requesting information to then find a topic, which is taking away staff time and delaying requests from other members of the public or individuals that are, potentially, asking for their own personal information.
There are incidences where an individual who is a serial FOI requester — and is not requesting a topic but just all the information to go through — may not be happy with that information. Then they're going to OIPC, which is then taking OIPC time.
In this, in the legislation, there is the $10 fee. I have learned that many police departments are not charging that $10 fee at this time because they don't want to set that precedent of being the only one who's charging that $10 fee. Even a $10 fee, for a serial FOI requester, may not be enough to deter that or slow that down.
As well, when there are complex issues where a department doesn't actually collect the data that someone is asking for, within the act, the department will be asked to put together a fee estimate of what it would cost to propose that information. At some points, that's when the fee may not be approved and they do not need to go through that work. But the actual work that it takes to collect that fee estimate is not recouped. As well, there are three hours of department time, not charged, for each of these topics.
Finding ways to better support our departments, either financially, for staff time on these issues, or just finding some type of avenue…. The FOI requests aren't just with the FOI individuals. Often that leads to including other officers, deputy chiefs or chiefs in the process of collecting that information. As we know, our municipal police departments are stretched thin. They're understaffed, having a hard time getting the budgets that they're requesting. These types of requests are a drain on staff resourcing and time, and ultimately could be affecting public safety.
That's my presentation.
R. Glumac (Chair): Excellent. Thank you, Charla.
We have some questions from committee members.
J. Rustad (Deputy Chair): I really appreciate it. I didn't realize the potential scope of the problem. You're right. Officers' time could be much better spent doing the work that needs to be done in terms of protecting the public. I have to admit that it makes me smile when you say "serial FOI'er." I've never heard that term before. It did make me chuckle, but it raises a serious issue.
I've been asking this of most of the people who have come and presented. If we were to change the way we think about FOI so that all information would be made public, so that it's just a process of what…. The FOI officer would have to be responsible for what can't be made public, but it's automatically made public so we stop the requests. People can go look at whatever they want to look at, but it stops the need and the drain for the resources.
I mean, could something like that work for the police departments?
C. Huber: I'm not super involved operationally. Obviously, I come from a governance lens. I'm not sure of the staff time that it would take to put that forward, to have everything public, because then you're going to take every single police chief email and put that on a website for people to read. I'm not sure if that works.
I'm curious, and this isn't necessarily my wheelhouse. Have that minimal fee for FOIs, up until a certain point. After five or ten FOI requests in a year, maybe that fee increases, potentially saying that for an FOI request, there needs to be a specific topic, instead of just saying: "Can I get the last seven months of this person's emails?"
J. Rustad (Deputy Chair): Sorry. Just a follow-up.
I think it wouldn't be the responsibility of the officers. Obviously, there would be some rules in terms of what should be made public and what shouldn't be. If it's something that…. Well, in any case, there would need to be some rules in place.
I would also think that, instead of having the tremendous amount of resources that we're putting towards these requests, it should shift that around so that there would be a dedicated resource for making things public so that it wouldn't be up to the individual officers to be able to have to do that work, right?
In any case, it's a different way of thinking about FOI that would allow for, hopefully, some savings and some efficiencies without it being overly burdensome with thousands of emails that may not really be relevant.
R. Glumac (Chair): Henry, did you have a question?
H. Yao: Yes. First of all, thank you so much, Charla, for your presentation. You're the first person that actually brought a lot of numbers to a lot of the presentation, which helps paint a better picture.
In one of your earlier comments you made, a serial FOI requester could make about eight requests per month, and every request takes, as you mentioned, two staff two weeks to complete. I just did a sort of quick calculation. It is almost as though two of the FOI serial requesters is equivalent to 1.2 full-time staff, per year wage, so it's quite a lot of expense.
I do appreciate the fact that you acknowledged the importance that we are still trying to make information accessible. It's important for the public to be able to hold the government, hold the public service at scrutiny. But we also need to be honest and balance the importance of how we can reconcile the balance in regards to government resources and taxpayers' money, obviously, at this point, too.
Of course, I think one of the key factors is — and some of my colleagues mentioned it earlier — we want police officers to be on the streets. We want to them to be working. We want them to be serving the public instead of chasing after emails.
After all the numbers, putting it together, I guess my real question is: typically, how many serial FOI'ers per municipality? Can you give us a rough estimate?
C. Huber: I'm not certain of how many per. But when I did bring this up to our members and asked: "Do your departments…?" I think I just invented the term "serial FOI'ers," so if there is a different name, please use that.
Every single person at our meeting nodded their head and sighed and was just like: "This is a problem." That's why BCAPB is bringing this forward to you.
One thing that I didn't mention, which I should have, is that even when a fee estimate comes forward for a complex issue, in the act, currently, there is a way for folks to go to the commissioner to waive that fee. Even if a department said, "That would cost $10,000" — I'm making up this number — whomever could go to the commissioner and have that fee waived. So then the department, now, is spending all of those hours and not getting reimbursed.
I know — I'm on the Victoria, Esquimalt police board — VicPD has four full-time FOI staff. This is a high number of staff that every department has, and those staff have to be put in within the police budget. So finding a way for departments to be better compensated for this time and resources that they're required to have….
H. Yao: If you don't mind me, I have a follow-up question. I will echo what my…. I'm going to piggyback on my colleague's comment earlier, mentioning about proactive disclosure.
Obviously, publicizing email might be a bit beyond expectations. Is there any other information that can be potentially considered as a public disclosure from the police that can help ease the FOI stress, or is it because the police work nature itself makes it difficult for police departments to publicly and proactively release information due to sensitivity or potential compromising of further investigation?
C. Huber: From what I've heard from police board members across the province — as well as police leadership from around the province — there are interesting avenues between the information. A lot of times the policing information does breach into the operational lens. That's what makes things tricky, and that's what makes things different from municipal legislation or a council meeting where things can just go forward. Sometimes there's information on cases or resources or human resources or staffing. Those types of things make it challenging.
If there was legislation put in place that's very clear about what's public and what's not, I think that could work towards having things go — or minutes posted or different types of things like that. I think the current way, with our serial FOI'ers…. It's a very small number of people taking up a significant amount of staff resourcing time and, specifically, not actually having a topic, just saying: "I want this."
I've heard from FOI staff that many of these individuals are not very kind to the staff. They're very demanding. They have a bullying nature when they're asking for these things. If a thing is one day late, they're calling OIPC.
It's a big issue. I think, in police departments particularly, there are a lot of morale issues right now with the public lens on policing. These types of incidents are not helping.
R. Glumac (Chair): A question from Tom.
T. Shypitka: It's probably down the same avenue that Henry and John have gone down.
You mentioned the serial people requesting all of this information. I think the thirst for information is never going to diminish, whether we put up these barriers of fees or…. You mentioned a couple of things — more staff time, financially assisting or, perhaps, tighter parameters on the specificity of the request, which are two good avenues.
I think the other one, as John said, is…. We've heard, time and time again, that public information should be the default. It's not so much what we shouldn't be letting out. It's how much we should be letting out and then defaulting to what we don't. I think that's probably where we should be looking.
I don't know if the RCMP have looked at what other information they could release that would be good for the public domain — start from that side of the equation — and what should be maybe tighter held information — obviously, privacy information and things like that. And then, of course, tighter parameters on the specifics of the request, for sure — I mean, you can't just say: "I want every email for the last two years on John Doe, whoever it is."
I think that's probably….
C. Huber: Exactly. That's what's happening right now.
T. Shypitka: Yeah. For sure.
No real question, I guess.
R. Glumac (Chair): A question from Adam.
A. Olsen: Thank you, Charla, for your presentation.
I just wanted to highlight when…. We've talked quite a bit about proactive disclosure. I think, just to highlight something that a presenter yesterday, Nicole Duncan, raised, with publication schemes…. It sounds like a very highly technical term, but I think that it helps.
Those publication schemes, as I understood them — and it could be part of our recommendations — help determine a set of data, or a data set, that can be proactively disclosed if it fits within that scheme. I think that with the proactive disclosure comes the publication schemes. I think that we can probably achieve what John and others have been talking about.
Charla, just a question to you with respect to the relationship with local governments. A couple of us are also on the Police Act reform committee, as well. Talking about the relationship between the police board and the local government, has the Association of Police Boards ever brought this to the local governments?
I know the issue with police budgets. But the specific requirement to fulfil the FOI piece…. It seems to me that there is the potential for some coordination with the local government that you're going to be a part of and that you're serving, because they also have the FOI requirements as well. Has there ever been a conversation with that?
C. Huber: I'm not sure. I have an interesting perspective here because I am on the Victoria-Esquimalt police board. When we're hosting informational chats with BCAPB, all the other municipal departments in the province will often utilize those city resources heavily. But for Victoria-Esquimalt police board, we have two municipalities, so it's very different. We can't just reach onto a city. Our police board — it's very much the department.
I think that because we're the only amalgamated police department in the province, setting those precedents is very difficult. If something like that came down the pike, then how would a police board such as ourselves do that?
I guess it might be out of turn, but I know BCAPB would love to come present to your Special Committee on Reforming the Police Act, and if there's anything you can do to allow us to come, we would be very excited.
R. Glumac (Chair): My question is: is the majority of the time that you're talking about being spent on these really general requests for email that encompass a period of time without any specifications at all? Is that where most of the time is being spent?
I would imagine if that request comes in, then somebody has to go through every single email and make sure there's nothing in there that needs to be redacted or anything like that — personal information of some kind that should maybe be exempted. Going through every single one, line by line, very carefully, can take a lot of time. Is that, essentially, what's taking the most time, or are there other areas that are time-consuming?
C. Huber: I can't speak exactly…. I don't have all of those numbers. I know that these general requests are taking up a significant amount of time. There are other requests that do take up a considerable amount of time too.
I think the issue we're bringing forward is just that main thing — a serial FOI requester wanting a broad topic without a scope, fishing for something to look for. I think, at the same time, it's taking away that information for folks that are asking for their personal information, and they're entitled to that personal information or other information that they're looking for.
Because there's a 30-day turnaround, when someone submits eight requests in a day, now they need all of that information within 30 days. But for anyone else who's requesting, it's inhibiting that person from receiving the information that they're entitled to because there's now this backlog of someone who's constantly taking up that staff time.
R. Glumac (Chair): Just to be clear, would your recommendation be to not allow those general requests and have it be more specific in terms of what people are looking for? We had one presenter that suggested that just the subject lines of emails could be received. Could you speak on that?
C. Huber: I think having a definite topic would make a lot of sense — that when someone is looking for specific information, they can ask for that information and receive it. But I'm sure that anyone here…. If someone said, "I want the last seven months of your emails," even if every single email is professional, it still feels a little bit invasive.
H. Yao: Pardon me. What's it …? I would love to hear your perspective about it. There were also a few arguments presented during the…. Some were presenting in the past, too, talking about if this was a fishing expedition that discovered little things that happen — that if the fishing expedition was earlier, it could have prevented some kind of scandal, potential corruption or whatever people like to claim.
I understand and appreciate the importance for what the FOI provides us as a tool and a means to help us keep an eye on government and public body operations. But at the same time, we also want our staff resources to be useful — not chasing after, for some time, a fishing expedition where it reaches no end.
I, personally, am having a hard time reconciling between those two challenges. I'd love to hear your perspective. Do you have any recommendations or maybe suggestions that could maybe be put into consideration?
C. Huber: I think having your topic request or limiting the number of monthly requests…. Many people may not do FOI requests, but we should all have that option to do so.
If there are a number of requests…. Instead of someone sending eight or ten in a month, maybe they send three, which is still going to take up a significant amount of staff time. But that still allows someone to get that information, and they might be a little bit more selective of what they're asking for. Right now, someone can ask for the moon and receive it, so they're going to continue to do that.
S. Chant: Thank you for your presentation.
The serial FOI'ers — are they predominantly journalists, or are they another member of our population?
C. Huber: I do know of people who are other members of the population, so I'm not sure exactly on demographics here. I know that journalists would be. My background is journalism, so I'm not against journalists. I think that there are members of the public who enjoy doing this as well.
S. Chant: Okay. When you say, as an example, that you've got four full-time staff doing FOI work in VicPD, are those staff police people, or are they administrative people?
C. Huber: I believe that they are staff, not officers.
At the end of the day, departments are still a team, so whether they're officers or staff, they're all…
S. Chant: Yeah. If one was talking about resourcing, it would be looking at, perhaps, resourcing on the admin side versus the officer side.
C. Huber: Yeah. Then it was explained to me, too, that when these requests come in, and they're pulling emails or information…. There might be information that, then, the crime analyst needs to be pulled into. Even if it's the FOI staff, the drain on resources is far beyond that.
S. Chant: Right. It's still a ripple effect.
Thank you. Appreciate it.
J. Rustad (Deputy Chair): If we were to go down the route — just building on what Adam was talking about — of this proactive disclosure, do you think it would be appropriate if it was the freedom-of-information officer that sort of set the rules, obviously working with the department, as to what should be proactively released and put out there so that it's cut and dry and not up to the …?
I guess it gives an opportunity so that it's not necessarily reflected on a police department to make those decisions as to what should and shouldn't be, and potentially be held accountable one way or the other for it. It should come from an officer whose job, like the freedom-of-information officer….
C. Huber: I think that that makes a lot of sense, because the freedom-of-information officers are well-versed in the topic, live and breathe it, and would be able to make those decisions and determinations. I think that's really valid.
H. Yao: Thank you so much for your presentation. I do want to follow up on something presented by my colleague.
I'm just trying to sense your undertone, if you don't mind. If I've misinterpreted it, please correct me. What I'm sensing is that a lot of serial FOI requests out there to do this aha moment. Even if you proactively disclosed information, I guess, based upon your experience at this point, your interpretation, there could still be an intrinsic motivation to demand another form of fishing expedition because there is potentially a lack of trust there. Or there is just a desire to continue digging and assume that the police, whatever they released, are still hiding something else. Is it my interpretation?
C. Huber: I would agree with that. I think it would be great to put all the information public that could be public. I agree that people who are interested in filing multiple FOI requests without topics — just searching for "what can I find" — would still want to continue to do that.
S. Chant: Just so I am clear in understanding, what would be very helpful to you would be some kind of mechanism to slow the serial FOI'ers down. Not stop them, because we can't do that, however, but something to slow them down. Chances are that a fee is probably not necessarily the way that that's going to happen, but some kind of mechanism to say: "Hey, you know, cool it."
C. Huber: I think so — either having a narrow topic, having a number of FOIs that you could submit in a year or in a month or, potentially, even having that fee schedule where your first X number of FOI requests are $10. Plus, if it's your own personal information, that's always free. Then after eight or ten requests in a year, maybe that fee increases to $50 or $100, and that will make people more selective in the information that they're seeking.
S. Chant: Okay. Thank you very much.
J. Rustad (Deputy Chair): One of the challenges, I think, in terms of narrowing the requests — and I'm not saying that that shouldn't happen — as opposed to just a broad fishing, is that it can sometimes be used by departments — not necessarily police departments; others — to deny information because a particular word or the way it was phrased doesn't fit within the scope.
So if I'm asking particularly about the Vanderhoof airport construction project but I just say I'm looking for information on a construction project in Vanderhoof, well, that may be entirely missed. So it becomes then: "Okay. So now I put in specific…. I didn't get back the information, so now I'm going to put in another one, and I'm going to put another one in to try to get the information."
I think that's one of the big challenges that we've seen with FOI. You come back. You don't get any records, or you get incomplete information, so you end up putting in multiple requests to try to find this. It's easier just to say: "Give me all the information associated with the Vanderhoof airport." Then you can try to dig through that to get what you're looking for. I think that's part of the problem with some of these broader requests.
C. Huber: What I've been told by our members from across the province is that everyone does believe in transparency and information and just finding a way to meet in that middle. I don't think that we're asking for something to be put in place to allow more information to be withheld. I think it's just to better support our departments. Our roles as board members is to ensure public safety and making sure that those resources are being spent in that way.
I did want to note, too, that I do know that there is something in the act that does talk about frivolous requests. I don't remember the exact terms. But one thing that was explained to me is that the piece in the act right now is only if someone keeps asking for the same topic. It's not multiple topics. So if someone kept asking for an airport construction, then that piece in the act could come into play. But if it's construction and then it's this and then it's that and then it's over there, it actually doesn't fall under that "frivolous requests."
H. Yao: I just want to entertain one of the ideas that you mentioned earlier — the potential of limiting the number of requests per person, maybe when it comes to a fishing expedition. The reason why I would like to play around with the idea, too, is that it felt like…. I'm putting myself in one individual's shoes. If I insist on finding information, and you put limits on my identification, the easiest thing to do is find someone else to represent me and to ask for the same amount of information. I guess my struggle is that I don't see that as a real solution to limit the potential FOI requests that are a fishing expedition.
I do want also to echo my colleague who mentioned earlier that there has been historical evidence, for example, that some of those fishing expeditions did discover things that previously were not discovered by specific requests. So I personally am struggling with reconciling between the challenges that are faced by the different police departments but yet, at the same, the importance of balancing the power and necessity of FOI.
I'd love to hear from you: if the number quota doesn't seem to work, do you have any other suggestions that we can consider and put in as a recommendation?
C. Huber: I think at the end of the day, people are always going to skirt the system. There are always going to be people who are going to find that workaround or take advantage of something, and we can't spend our lives trying to stop those people that are always going to be skirting the system.
I think it's important that in the work you're doing, you're acknowledging that this is an issue and trying to demonstrate that these types of requests and behaviours are not supported. I think that would allow the municipal police departments to feel respected and heard here today.
People will always find a way, but it's an important message to send to the departments and to our police boards to know that you acknowledge that this is an issue. It's taking up staff time, and it's taking away from public safety — just finding a way to acknowledge that. It might not deter everybody, but it might deter someone.
For someone right now who could submit eight requests for free, even with a $10 fee, it would be $80. If that $80 were then $160 or something…. I know it's not a lot of money, but if you're putting in that many requests every month and now your hobby is going to cost 400 bucks a month, you might rethink that. I don't know about you folks, but even when I was a journalist, I've never issued an FOI request. So if I were given ten FOI requests a year, to me, I would never even meet that number.
R. Glumac (Chair): All right. Well, I think those are our questions for today. Thank you very much for your presentation and for answering our questions today.
Our next presenter is Greg Phillips from the Trial Lawyers Association of B.C.
TRIAL LAWYERS ASSOCIATION OF B.C.
G. Phillips: Hello. Thank you for having me. My name is Greg Phillips. I am a practising lawyer. I drove down from Nanaimo this morning. I'm here on behalf of the Trial Lawyers Association of British Columbia, which, if nobody knows — and there's no reason that many people would — is an organization made up of about 1,300 legal professionals in B.C.
We are largely made up of lawyers that represent individuals rather than organizations. What that means, practically speaking, is that when we have issues about access to justice or barriers to people accessing justice, a big part of what we do is advocacy work. A lot of that is done in the courtroom, but when opportunities like this come up, that's what brings us down here.
I wanted to talk a little bit about fees today — no big surprise — not in the way that you've heard a lot about, probably, over the last couple of days, and will continue to hear about, but about a much more narrow issue that affects a lot of our members and, in particular, a lot of our members' clients.
To back this up a little bit, there were recent amendments to the Evidence Act, as well as some subsequent regulations that were passed via order-in-council, with respect to disbursements in motor vehicle accident claims. In particular, there's now a cap on the recovery of disbursements in motor vehicle accident claims. It's a percentage. It's 6 percent of whatever the value of the claim is. So if the claim is $100,000, the most that that person can recover is $6,000. We're not here to talk about the merits of that, but there is a spinoff effect on that, which I'll get into in a second.
Disbursements, if anybody doesn't know, are really the expenses associated with proving your claim. That can be, in a motor vehicle accident claim, expert reports — that's usually a relatively big-ticket item and, I suspect, probably what is trying to be curtailed with this cap — but there's also everything from photocopying charges to investigations. The most common one is clinical records. These are records held, often, by public bodies.
These aren't an optional expense; they are a necessary expense. In order to prove your claim to the satisfaction of the courts, you have to bring this evidence. They're not just going to take our word for it, or the person's word for it. Unfortunately, the reality has been that the actual cost of these disbursements — the average, as we've been able to determine — is about 10 to 11 percent of the value of the claim, and sometimes significantly more.
In practice what that means is individuals are the ones who are paying for the difference out of their own pocket. So if $5,000 were necessary to spend but they're only allowed to recover $3,000, that means that $2,000 is coming out of that person's pocket to make up the difference. The previous regime, you were essentially fully indemnified for the full amount of the expenses.
Why does that matter when we're dealing with FOI? The problem has become that a lot of public bodies charge for fees for access to those records. It's not unusual for the total amount to be $1,000 or $2,000, because over the course of a multi-year claim, you may be requesting these records a number of times, every time there's an invoice sent along for $100 or $200 by Island Health or various other public bodies that might be producing records.
What that means is that if a judge awards, for example, $2,000 for future care for a person to go out and access care but they're the ones who ultimately have to pay $2,000 for those records, they actually get zero dollars for treatment. That's sort of the net effect of this.
The effect is even more pronounced where the injured party is disabled, very young or elderly, simply because those claims, on the legal end of things, are worth less money. Six percent of a smaller amount is a smaller amount of recovery. Ironically, of course, these are the people who are least able to shoulder that extra $1,000 or $2,000 or whatever the difference is.
Section 75(3) of the act does exempt fees for the applicant's own personal information. So if you go out and you call up Island Health and say, "I want a copy of my records," they're not allowed to charge you a fee. The issue is that universally, these public bodies, in particular these public health bodies, have interpreted that to mean that if somebody else is requesting that record on your behalf, they're entitled to charge a fee for that. I think that's probably wrong, but I think there's no doubt that they've got some quality legal advice that says that yes, that is the correct interpretation of that provision in the act.
How do we fix this? How do we allow people to essentially access their own information, even though it's being requested through a court proceeding, without further burdening them with additional costs? The solution, in my submission, is actually fairly simple. Subsection 75(3) can be amended to make it clear that applications by an individual or a party requesting records on their behalf are exempt from the fees.
We already do that in a number of different places in the act, where we can assign, essentially, an authorized representative to request records on behalf of the true applicant. But in terms of the fees, it's silent on that, and this is the way it's being interpreted.
As a short-term solution, I suppose the ministry could be directed to issue an interpretation bulletin or something to that effect that says: "No, no. Just because your lawyer is applying for this doesn't mean that that suddenly becomes not your information." Clearly, it is not the intent of the fee structure to create an additional barrier to people proving their case.
At any event, I'll leave it at that. I told you it would be a fairly narrow issue, but it is one of significant import.
S. Chant: Thank you very much for your presentation.
I'm just clarifying here, if I may. I've been on the other end of freedom of information, as a health person, and usually what we get is a piece of paper that's signed by the individual that's looking for the information. Whether the lawyer has generated a piece of paper or not, the person themselves has signed it. I was not aware that we were charging fees on that stuff. So that is very interesting to me.
Do you believe that that is all the health authorities in the province? Or is it pick and choose?
G. Phillips: I can't say that it's all of the health authorities. In my experience — and I've been doing this for a long time — it has been almost universal. Every once in a blue moon, we may get one where there's no invoice attached, but it appears to be across the board.
S. Chant: Interesting.
H. Yao: Thank you so much for your presentation. To be honest with you, I'm similar as my colleague. I'm a bit shocked by the way she profiled it and would love to have a conversation later about it.
My first question is: have you had a chance to speak to the ministry directly about it, and did they have any specific response to your concern? That's my first question.
The second question I do have, too, is…. Obviously I don't have legal advice, so bear with me. I'm not a legal professional. I know a lot of younger children or siblings of older seniors often have power of attorney in order to help look…. Does that also impact them as well?
G. Phillips: To answer your first question, I have not spoken personally to the ministry, but this has been an ongoing dialogue for many, many, many years. I understand, also, the Office of the Information and Privacy Commissioner has been involved. We're all looking for a solution, so this isn't an acrimonious issue but really more a matter of needing some guidance.
To answer your second question, there are provisions in there that allow a person with power of attorney or a representation agreement to access information on behalf of the person that they have that for. I have not seen whether or not fees are charged for that. I suspect, based on what seems to be the interpretation by these public bodies, that they would be.
I can certainly look into that. We have a bunch of people in our organization who deal with elder law and that kind of thing. They may be able to speak to that. I'd be happy to get their insight and forward along some information on that point. It's a good question.
H. Yao: That would be much appreciated.
R. Glumac (Chair): A question from Adam.
A. Olsen: Not really a question. Thank you for bringing this issue to our attention. It seems that the spirit of section 75 needs to be clarified.
I'd just look to the committee here to…. I think, even in advance of making recommendations, it seems like this would be something that we'd want to raise to the ministry's attention, that this has been the experience. If what Mr. Phillips is suggesting here is, in fact, the case, then I think the ministry could take care of that, as Mr. Phillips noted, with an information bulletin to clarify exactly what we mean when we say "personal information" and who should have access to it.
It just seems to me that the spirit of section 75 is to ensure that people can access their own personal information free of charge. The only reason why I would suggest that we might want to bring this to the ministry's attention in advance of bringing our recommendations forward is because the next person who is charged for this is actually being charged for something that wasn't the intent, as I see it.
I just put it here for the committee to make a decision, but I would certainly support a note from the Chairs to the ministry or from the committee to the ministry to let them know that this has been brought to our attention. If it can be remedied before we do it, then that, to me, would be acceptable.
G. Phillips: That would certainly be ideal from our perspective.
If it's helpful to the committee, a number of these documents become public documents, so I'm free to share the actual expenses that have been incurred on a couple of files. That may be helpful, just so you can point to that and say: "This actually probably shouldn't have been charged, based on what we believe the interpretation of this to be."
Just when you're dealing with the ministry, paper is always helpful. If that's helpful to the committee, I can forward that along as well.
J. Rustad (Deputy Chair): This seems to be cut and dry, but my experience in the Legislature is that it always tends to get these things pretty messy. I'm fully supportive of what you've brought forward. I think it's a very reasonable request. It makes sense. It's logical.
But because it is a section in the act — you're the lawyer; I'm not — but I actually believe we would actually have to change that section of the act. We could not just have an intention given by the minister to say, "this is our interpretation of it," which then means we would have to see an amendment come into that act probably through a misc stat bill that the government would have to move forward at some point here in the spring session.
However, as a committee, our work will wrap up at the end of the session, so there won't be an opportunity for that to happen immediately. I'm wondering. I do believe the terms of reference for our committee allow us to do an interim report to the Legislature. I'd just check to see if that's possible because if it is that's something that we could put forward as a very brief interim report that the government could then act on quickly through a misc stat bill to make the change that's needed.
I know other committees are allowed to bring in reports from time to time, so I think we could be in a situation to be able to do that. Maybe we have to discuss this after, as part of any other business, at the end of the day, but just something that would be worth clarifying.
R. Glumac (Chair): All right. Henry, did you have another question?
H. Yao: Actually, no. I'm just going to make a comment if you don't mind. I just want to echo my colleague Adam's comment to you.
It does seem to be rather interesting — the stuff you're bringing up here. I think one other thing is that, obviously, there’s a financial value attached to this concern you are talking about.
My concern also is accessibility. Maybe there is a member of our community who doesn't have the language skills, doesn't have the cultural connection. Or sometimes have mobility limitations. Even access to the Internet. There is a digital divide. This will become a bigger issue for them as well. I do want to echo what John and Adam said. I would love to see what can we do to follow up more, maybe a timely reaction to the suggestion here.
T. Shypitka: Thanks, Greg, for the presentation. Wes Rogers says hi, by the way.
G. Phillips: Oh yes. Good.
T. Shypitka: Thanks. Very, very legitimate request and very simple request. It's a very shining example of why putting the legislation ahead of this committee didn't make a lot of sense. This is something that could have been introduced and debated and brought forward in committee stage.
I want to get this right. Let's just say a person is in a motor vehicle accident, and it's a liability claim and that person is incapacitated and perhaps in a coma or anything like that. That personal information needs to be presented in order to prove the claim. That information, even though requested from somebody other than the person, would be charged? Whether it's a family member or lawyer or anybody?
G. Phillips: I can't speak to the family members, just because that's not the way that it comes up in my experience. When it comes through a lawyer or a committee or a representative, there's a bill.
S. Chant: I know what a committee is. They're god in our world.
G. Phillips: Oh, for sure.
S. Chant: That's really interesting that a committee can't get information.
G. Phillips: Well, they get the information. It's just sent along with the bill.
S. Chant: They're getting charged for it. That's wrong.
G. Phillips: Thank you for that, and tell Wes I say hello if you're chatting with him.
To the point, it's possible that because the fee schedule is set out in regulation that something could be done via order-in-council. I haven't thought much on that, and I just don't know off the top of my head if that could be done, but there is some room to move a little bit quicker, perhaps, if that's an option.
R. Glumac (Chair): All right. I don't see any further questions. Thank you for your presentation.
G. Phillips: Thank you. I will email, I think, you those additional documents just in case you are making some recommendations.
R. Glumac (Chair): That would be great. Thank you.
Committee members, we are a little bit early. If it's okay with the next presenter to start early, we can.
The next presenter is Sean Holman. He's from the University of Victoria.
Welcome, Sean. Take it away whenever you're ready.
UNIVERSITY OF VICTORIA
S. Holman: I'd like to thank the committee for inviting me to testify on the subject of freedom of information today.
I would actually like to begin by first respectfully acknowledging that I am presenting to you, of course, from the traditional territories of the Lək̓ʷəŋin̓əŋ people, the Songhees and the Esquimalt First Nations.
This is a subject that's extremely important to me, as it should be for every single British Columbian. That's because we are speaking today at a time of declining democracy in this country and many countries around the world as we face unprecedented threats to our lives and livelihoods against the backdrop of rising inequality and climate change.
Freedom of information may seem as if it's unrelated to these problems and that it's only a concern for politicians, journalists, activists, lobbyists, lawyers and academics — in other words, the kind of people who are appearing before this committee. It is not. It is about whether we have enough information to make the rational and empathetic decisions expected of us in a democracy during this new age of disaster. It is about whether we want to cultivate that democracy or salt the soil of the fact-based communities that we have spent centuries building together. These are the larger issues that this committee must consider in its deliberations on the future of British Columbia's freedom-of-information law.
Now, my colleagues inside and outside the news media have already given you example after example of the present failures of this law. Today I will instead talk about — from my experience as an investigative journalist, an academic studying post-disaster societies and a historian studying why we valued information in the post-war period — the importance of these failures and put them in a larger societal context. I will start in the post-war period because much of what we are talking about today — much of what is happening right now — is informed by what happened back then.
The freedom-of-information movement, which birthed British Columbia's freedom-of-information law, was actually born amidst the ruins of the First and Second World Wars. At the time, our greatest thinkers were wondering why millions had died by human hands not once but twice in the span of 31 years. For some, the answer to that question was propaganda, censorship and secrecy.
The American Congressional Committee even went so far as to write that Adolf Hitler would've never taken over Germany if the Nazis hadn't succeeded in suppressing the true facts and distorting them in their own propaganda mill.
It was actually American president Franklin Delano Roosevelt who popularized this belief. He told reporters in 1940 that his five essential principles of permanent peace would include freedom of information, because there would never be a completely stable world without freedom of knowledge.
In other words, we believed that information could allow us to make better decisions about the world, thereby controlling public and private entities, and we believed that information could allow us to better understand the past and present and to predict the future, thereby feeling more certain about that world. So as the world became more destabilized during the '60s and '70s, our demands for information became more insistent. After all, you have to remember that this was the era of big businesses and even bigger governments, which, for the first time, were posing an existential threat to humanity in the form of nuclear power and nuclear weapons.
Nor was this the only threat that these businesses and governments posed. This was also the era of chemical poisons, such as asbestos, thalidomide and DDT, as well as political corruption, suppression and surveillance, but information was seen as the one thing that could restore our control over these forces — because, the idea went, if we only knew what big businesses and big governments were doing, then we could actually do something about them; we could restrain them.
It was actually this belief that inspired environmentalists such as Rachel Carson, who believed that the obligation to endure gives us the right to know. It was this belief that inspired consumer advocates such as Ralph Nader, who described information as the currency of democracy. It was this belief that inspired the United States' freedom-of-information law, which was approved in 1965.
Now, Canada approved its own version of that law in 1982. But the cause of that 17-year delay also explains why the province recently made regressive amendments to our freedom-of-information law. In short, because of Canada's cabinet government, elected and unelected officials at the provincial and federal levels believe that secrecy is necessary for decision-making. They believe that this decision-making must happen in private, rather than in public, lest those officials embarrass themselves or their colleagues, putting their party or government at risk.
This belief is reinforced by the principles of cabinet confidentiality, cabinet solidarity, ministerial responsibility and party discipline. It is reflected in our freedom-of-information laws, which allow government to censor the release of any records revealing public decision-making. This compulsion towards confidentiality seems odd, especially when you consider that local elected officials across Canada routinely make decisions in public, using advice from unelected officials that is also made public.
What was once odd has now become a hazard in our post-truth era. If the public cannot access the information they need to exert control and certainty over this increasingly uncertain and uncontrollable world, they will look to other forms of certainty and control. They will look to conspiracy theories. They will look to extremist ideologies. They will look to extremist theologies, while citizens trade democracy and truth for security and falsehoods.
This is what is at stake in this committee room today. Freedom of information is not just a legal mechanism that permits access to government records. It is a statement about what kind of society we want to live in.
Do we want to live in a society where citizens have the information they need to make good decisions in their personal and political lives? Do we want citizens to be able to hold public and private institutions to account? We are answering these questions every single day, and we are not answering them well. We are increasingly turning citizens' right to know into the government's right to say no to legitimate requests for government information.
This is my recommendation to the committee. Be bold in your service to your constituents. Be bold in your service to the public. Be bold in your service to democracy. Recognize that our freedom-of-information law in this province, like every other freedom-of-information law in this country, is fundamentally broken, and make a commitment in this room, together, across party lines, to fixing it.
I believe that this fix should include an amendment to section 71, requiring the unredacted release of certain broad categories of records 30 days after their completion, ranging from inspection reports and audits to scientific studies and aggregate statistics. There is no good reason why this information should not be available to the public as a matter of course.
I believe that fix should also include an amendment to requiring the release of cabinet papers' minutes and material. These materials are, right now, considered sacrosanct in Canada. Yet in New Zealand, a country with the same population as British Columbia, the same parliamentary system of government, such records are proactively made public. In other words, put information in the hands of British Columbians by putting in place a mechanism that can circumvent the great morass that is now the province's freedom-of-information system.
I would be remiss if I didn't also encourage the committee to consider other measures that are outside of this mandate, to ensure the health of our democracy. Freedom of information means little if British Columbians don't know how to use it and can't do anything with it. So this committee should also consider measures to increase civic and media literacy, to make elected and unelected officials more responsive to the public, and to empower the government to decrease the data deficit that exists surrounding so many issues in this country.
We have little time left to preserve democratic society. The task is becoming more herculean by the day, as we confront compounding crises that will threaten the capacity and legitimacy of governments around the world, including this one. The heatwaves, forest fires and floods that we saw in British Columbia this past year are only the beginning, as our seasons become increasingly defined by the disasters that they bring. In that environment, we must work together to strengthen citizens' confidence in the democratic process. This committee can be an important part of that work.
Thank you for your time.
A. Olsen: Thank you, Sean, for your presentation. It reminded me of something that I was warned of, back when I was a signer of the confidence and supply agreement, which doesn't exist anymore. It was that I need to be careful of what information I disclose to my colleagues, because I know more than they know about the operations of government. I was very, very uncomfortable about that. I had to carry that for a long time. But it's important to daylight that here in the context of what you have just presented to this committee.
There's no reason why any one of us in this House needs to have more or less information than another person. There might be some information that needs to be withheld for a period of time. You think about the budget, for example, or tax measures. That stuff needs to be pretty tight or else people start to speculate and capitalize on that.
However, when a bill is coming, what the title of that bill is, what the spirit of content in that bill is — there's no reason why any member of this House needs to be without that.
Just as you were talking about the cabinet confidence, there's information that's being withheld by our own parties to our own members that sit in these seats. I know that to be a fact, because I was warned that when I spoke too freely, my colleagues in the back benches of the government at the time started to wonder why it is that we got access to some information that they didn't. It was regular, and it was a lot.
I just want to note that, because it actually inhibits the function of this democracy. It was a challenge for me then, and it's a challenge for me now. As you were speaking about this, it brought me back to that moment when I was warned to be careful.
I just thought that I'd share that. I really thank you for your presentation. I really thank you for the warning that you brought to us here and the history about how we got to where we're at today. Thanks, Sean.
S. Holman: Just to pick up on that, one of the things that this committee should also consider is something called information gap theory. Information gap theory proposes that curiosity arises when there is a gap between our understanding of an issue and what we think other people know about that issue. It's a gap.
It's this gap that drives demands for information. When the government knows more than the people, and corporations know more than the people, demand for information increases. That is the situation we find ourselves in today. If that gap is not filled with truthful information, people will fill it with other forms of information to resolve that uncertainty, to resolve that feeling.
This is why we see the proliferation of conspiracy theories, misinformation and disinformation in our society today. It's all about a desire to seek control and certainty through other means that people are not able to achieve through the normal democratic process. We've let it get to this point.
T. Shypitka: Thanks, Sean. That's a great overview. Thanks for the history lesson there on how we've gotten here with freedom of information since the postwar era and all that.
S. Holman: What else are academics for, right?
T. Shypitka: It really does make you think a lot. The thing that kind of sticks out for me is that nothing is ever static in our evolutionary process of anything. I'm just wondering what your thoughts are on the technological advances in social media, misinformation being…. You talked about a gap of information.
As politicians, or anybody under the public lens, you have to be careful, because sound bites — anything — can be extrapolated from any information and be driven to a false narrative of information out there. What is your view on how these technological advances…? Maybe not even advances — it's almost a step backwards, sometimes, I think, with the way society is going right now with information or misinformation.
How does that play into…? You said secrecy is necessary for decision-making.
S. Holman: That's the assumption in Canada. I don't believe it, but that is certainly the assumption in Canada.
T. Shypitka: That's the assumption. I think sometimes it's driven by where we are in society with how information is shared publicly. Like I said, you can take a sound bite or a quote from one piece of a document and turn it into another narrative. So maybe that's where they're coming from — that secrecy is necessary for decision-making — because they don't want that to spin wildly out of control. What are your thoughts on that?
S. Holman: It's a very good point. I think my response to that would be that we have to make a choice as a society. Do we want to treat citizens paternalistically, or do we not?
Right now we have a long history of treating citizens paternalistically, and this is why I say all my recommendations also need to be paired with increased media and civic literacy. We're not giving citizens the tools they need to make good decisions in a democracy. The tendency in our education system is to train people for jobs, not help people become better citizens and consumers. We've let it get to this point.
Yes, there is that risk. Of course — absolutely. So we can either continue — right? — treating our citizens paternalistically and withhold more and more information from them, or we can take down these walls. We can say: "We're in this together as a society. We're in this together as a community. We're in this together as a people." Let us try, as a society, to make the best decisions we possibly can at this crucial moment in human history. That's what's at stake.
H. Yao: Thank you so much for the history lesson and the information you shared. I'll be honest with you: I'm not a history buff, so bear with me. I'm trying to understand as much as I can.
S. Holman: That's quite all right. It's all good.
H. Yao: You started talking about…. Of course, I think one thing we all agree on here is we are all here because we are elected officials. We are all here in grace to democracy, and we want to support our constituents to make the best decision while representing them.
You mentioned something about cabinet secrecy. You have talked a lot about information control. Is this a new phenomenon, or is this something that has started since the beginning?
S. Holman: Yeah, so this is something that starts at the beginning. You know, we've had a pretty extreme form of cabinet secrecy, caucus confidentiality, party discipline for a pretty long time in this country. That's what a lot of people were reacting to in the '60s and '70s.
They were reacting to it because they looked south of the border — they looked at what was happening in the United States. They saw that information was much more readily available in the United States than it is in Canada — a situation that persists today.
As an example, one of the issues that Ralph Nader raised — who actually crusaded for freedom of information in Canada as well as the United States — was the fact that Canadians couldn't get meat inspection reports. But they could get meat inspection reports about Canadian plants that were exporting to the United States, in the United States.
That issue ended up being a cause célèbre across the country. That issue actually persists today. We can still get more information in the United States about a lot of issues than what is available in Canada. In fact, when I was an investigative journalist, some of the biggest stories that I broke actually had to do with requesting information down in the United States that should have been available in Canada but wasn't.
H. Yao: Thank you so much for that really great opportunity. You mentioned that in 1965, Americans got the FOI. In 1982, Canada did follow suit.
Again, I'm not a history buff, so I'm learning. Based on historical trend, it seems to be that information access is getting better and better throughout history, till this point. Is that a false assumption I'm making here?
S. Holman: Yes, I would say so.
H. Yao: What kind of mechanism stops them from sharing — comparing the past to present at this point?
S. Holman: Let me recalibrate my answer. I would say it's becoming different.
H. Yao: Okay.
S. Holman: There were informal ways of accessing information prior to freedom-of-information laws existing. When freedom-of-information laws in this country came about, what they essentially did, in a lot of circumstances, was to codify the existing contours of secrecy in this country.
We can see that in the policy advice exemptions. We can see that in the cabinet exemptions. We can also see that in the ever-expanding personal privacy exemptions, which I personally have a problem with.
What we have seen over time is that those laws become more and more restrictive. That's why I say they were kind of built to be broken. They were built with these exemptions and exclusions with them, and government is simply exercising those exemptions and exclusions to a greater and greater degree as time goes on.
We have this moment in the 1980s where we start to get these freedom-of-information laws across Canada. It went into the '90s. Then we've sort of seen a retreat since then. We've seen the system defaulting to secrecy, as opposed to defaulting to openness.
Part of that is because the community around freedom of information and the community around democracy is so small in this country. In the United States, for example, with freedom of information, they don't have commissioners. What ends up happening is you actually have lawyers who work pro bono to try and get these freedom-of-information requests when they're being frustrated. That broadens the community of interest around freedom of information. Whereas the commissioners actually keep that community small, because they're doing that work, interestingly enough.
Then when you also combine the fact that democracy also is a pretty small community in this country…. We restrict it to, for the most part, during elections, as opposed to between elections, because of the system of party discipline that we have, where most of the decisions that happen in a Legislature, unless there's going to be a minority government situation, are a fait accompli. That also keeps the community of democracy small, keeps people less engaged.
H. Yao: My apologies. Do you mind if I ask a few more…? I'm just trying to….
S. Holman: No, no. These are all good questions.
H. Yao: Because you talk a lot about FOI, it sounds like FOI actually…. Let's put FOI aside for a second. I really appreciate that you brought up cabinet secrecy since the beginning until now, and you used that as an example that is something we need to address. But we are looking at the continuation or proliferation of misinformation, and we're talking about…. I'm sorry. I'm just wrapping my head around this.
I guess the use of simple terms…. My apologies. I'm a simple man. To use a simple term, it's like the situation is getting worse and worse and worse.
S. Holman: Defaulting to secrecy.
H. Yao: Defaulting to secrecy is making things worse and worse and worse. But I don't see the progressive increase of a secrecy piece for legislation. Obviously, defaulting to secrecy may be that through actual organic interaction, people learn to restrict more. I don't know — just an assumption here. But I feel like there's a correlation that doesn't really match, at least from my perception. So hopefully you'll help me with some understanding there.
S. Holman: Yeah, absolutely. Defaulting to secrecy. A good example of that is the fee that was imposed by this government on freedom-of-information requests, on filing freedom-of-information requests. That is a very regressive act, and it is disappointing, given the fact that the sitting government is from a party that actually brought in British Columbia's freedom-of-information law.
We see this regression in many other ways, not just in terms of freedom of information but also in terms of handling of information. We've seen, since the 1960s, an expansion in the public relations state, an expansion in the number of communications officials that are in government.
When I was a bureaucrat…. I actually was a bureaucrat before I became a journalist, strangely enough. I went from the dark side to the light side.
S. Holman: To the grey side.
I was actually a communications officer, and I still remember facilitating interviews between line bureaucrats and journalists. I would regularly do that. That just doesn't happen anymore. It doesn't happen, because there is such a focus on maintaining message control. There's such a focus on ensuring that the public only gets the information that the government wants to provide.
That's disappointing, right? It doesn't need to be this way, because it didn't used to be this way. Why is it this way now? It is because we are defaulting to secrecy, because that is the fundamental nature of our political system. There is a built-in confidentiality that flows through from cabinet because of the assumption that cabinet creates — that secrecy is necessary for decision-making.
J. Rustad (Deputy Chair): Sean, as odd as this sounds, you and I are closer, on the same page, than I think we have ever been in our shared history.
S. Holman: There you go. Amazing — that change in position, right? It's on my part, not your part.
J. Rustad (Deputy Chair): Perhaps a little bit on both parts.
I also, on this committee, recognize that I have the unique position of having once been in cabinet…
S. Holman: I was conscious of that.
J. Rustad (Deputy Chair): …and understanding the process that went on there, as opposed to when you haven't been there.
You said so much around things, and I think back on a document that was released back in June of 2020, by the German government, through their freedom-of-information stuff, which talked about the messaging that was necessary to control the public, to deal with COVID — the language to be used, what should be talked about, what shouldn't be talked about, what should be withheld, etc., to be able to get the public to a certain state.
Historically that sort of stuff has been referred to as sort of a noble lie — the proliferation of information to get an outcome, as opposed to just presenting all the facts and hoping that you might get to that outcome. What I've found over time, in my experience in politics and, particularly, in my experience now in opposition, is that the desire for control of that information is specifically for that very purpose. Every government's goal is to get another term; every opposition's goal is to become government.
The control of information is the key to doing that by either side. That's why, when you have an armed conflict, the first casualty is truth, because it becomes, immediately, trying to control the narratives. Increasingly, what I have seen, whether it's various issues of our day in society or whether it's politics itself, it is now being viewed more and more like a conflict and the control of information in order to paint a narrative to achieve that objective of getting another term or of getting into government.
All of that aside, I do believe strongly that freedom of information is a key piece that we need to be thinking about. The narrative is the narrative, and you can't change how political parties are going to try to manipulate the narrative. They're going to do that. It's just the way it is, and it has been that way since the beginning of democracy. I think it was something Winston Churchill said — that it's the worst of all systems, but it's better than anything we've tried to date. That's the flaw, as we have it in our democratic society.
Information, particularly public information, is something that I have a strong belief in— that it needs to be public, that we should not be thinking about the restrictions. I have often referred to, now, particularly because of the changes in technology — that the information act has now become a restriction-of-information act, as opposed to a freedom-of-information act. It's simply the way the process is.
It's not necessarily a fault of any particular government. It's just the way the process has gone through time. One of my colleagues, for example, was engaged with government on an issue and was asked to sign a non-disclosure agreement in order for them to engage. I'm thinking: "That's crazy." That you're asking….
All that aside, I've asked this of just about all the presenters that have come — which is getting to a place where, quite frankly, we need a complete rethink of freedom of information. We need to think about it in terms of technology today, because technology has given us the ability, really, to be able to share vast amounts of information. That wasn't available pre-Internet, in the era where the current FOI Act was written.
There were all of these things that needed to be put in place, because you couldn't release everything, so here's how we go through the process. Well, today we can release everything, and today, quite frankly, we should, except for cabinet confidentiality. No, just joking.
There is process that does need to be protected, and I respect that, having sat around the cabinet table. I won't share any stories from the cabinet table. I can tell you, the decision, for example, around site C and the arguments and the discussions that happened around the table before that decision was made…. That's something that probably can't be made public, just because….
What I found when Gordon Campbell did open cabinet meetings was that everything became very scripted, because everybody was so worried about how it would be perceived or the control of that information. Eventually, it just became: "Okay, let's not bother doing these things anymore."
When you have that behind closed doors…. I'll say this because I've been around in politics long enough. Other individuals may experience this over time. The biggest arguments you have in politics are not in the Legislature. It's in your caucus room, where things are freely said because it's confidential. It's a safe place to be able to argue things. Then you come out to a position. Once you come out, as a caucus, into a position, okay, that's your position going forward. It's the challenge.
S. Holman: Yeah, but I would say is: should we not take the opportunity to have that discussion in public?
J. Rustad (Deputy Chair): That's the interesting component. But that, still, isn't necessarily what we're here….
S. Holman: No, but it is.
J. Rustad (Deputy Chair): Freedom of information is what we're here to address.
S. Holman: But it is, though, right? These traditions — caucus confidentiality, cabinet confidentiality, civil service anonymity, ministerial responsibility — are the things that actually inform our freedom-of-information law, fundamentally. These are the contours of secrecy that exist in our democracy.
As you were pointing out, John, those contours also exist because of control uncertainty. The very thing that motivates our desire for information, which is to control uncertainty, also motivates secrecy, because if you can restrict information, then you achieve control, and then you achieve certainty.
J. Rustad (Deputy Chair): Yes.
S. Holman: This is the contest that we are facing in our society today. I lament where we are at in a society, because this desire for control uncertainty is being increased by the partisanship that we see in society today. That partisanship is getting worse, not better.
J. Rustad (Deputy Chair): I would agree.
S. Holman: I think what I would just encourage, with all my heart, is…. We have a last opportunity here to change this dynamic, to actually make the public part of the decision-making community, before it's too late, because it literally will be. If we start facing disaster after disaster after disaster, which we will — that is the trajectory we are on — the desire to control information will increase dramatically. We haven't seen anything yet.
That is why your deliberations in this committee are so vitally important today. It's not just about the legal issue of freedom of information. It is about the society that we want to live in. It's also why I'm encouraging this committee to talk about other issues, such as how we increase civic literacy, how we increase media literacy, how we ensure that people are making the best possible decisions with information, and how we involve them in that process and ensure that their voice matters.
I know it's hard. I know it's hard, because it means a risk. It means people get to see all the disagreements, all the yelling, all the fractiousness. But I think that someone needs to take a first step to do that, and I hope all of you are those people in this room.
J. Rustad (Deputy Chair): I know we're just about out of time, so I'll pass it down.
R. Glumac (Chair): I'll chair the meeting.
Our next presenter is unable to attend, so we do have a little bit more time if….
S. Holman: I used to be vice-president of the Canadian Association of Journalists, so I'll take that role too. [Laughter.]
R. Glumac (Chair): I find this discussion to be incredibly interesting. I have a number of questions, but I'll just ask one for now, and then I'll go to Adam.
You talk about increasing civic literacy. I wonder if you have any comments on the fact that when you're talking about information, it seems sometimes that people will find the information that they want to find to back up their own world view of something. You see it on social media all the time. There's plenty of information out there — on COVID, for example — but people will find other information and create their own narratives around that.
Is the issue deeper than just releasing the information? It's creating, like, a…. Maybe this is what you're talking about with civic literacy. But how do you nurture that and create that kind of a goal?
S. Holman: I actually think that's a beautiful question and such a vitally important question. The reason I think it's vitally important is that it goes to our understanding of what exactly democracy is for. We typically think, today, of democracy as being the rules of the game under which power changes hands.
There's a feminist scholar by the name of Carole Pateman, 1960s and '70s. She had an interesting alternative take on what democracy is all about. Pateman described democracy as an education system. Through participating in democracy, we become better able to make decisions that are not just in our self-interest but are in the interests of everyone for the common good, for the common wealth. The idea was that through this participation, people would be better decision-makers. They would make more rational and empathetic decisions — "empathetic" being considering other people.
What's interesting about democracy in this country is that it doesn't give people a lot of opportunity to participate at all. I think that should be changed, because I think giving more people real opportunity to involve themselves in decision-making — and again, I know this is hard — helps people become better citizens.
But it also starts in the education system as well. Do we teach what a good decision looks like? Do we teach people how to make a good decision, to consider all these various different factors, to waive their self-interest against the interests of others and other parties? We don't really. That seems to be an astounding deficit, given what our expectations are for self-governance, what we tell ourselves what our expectations are for self-governance in this society.
To go to your point, as well, with misinformation and disinformation, you're right. People do look for their select facts. In looking for their select facts, they're looking to resolve feelings of uncertainty and lack of control. That's what they're doing all the time.
That's why it's so vitally important to not just have the information out there, but also to pair it with: how do you make a good decision on the basis of that information?
A. Olsen: I think the context of some of the questions that Henry has been asking, just with respect to whether it's better or worse now than it was before…. In my view, it's the same as it always has been.
This is why I raised my hand a second time. It came in the exchange between Sean and John. It depends on the perspective with which you view the Legislative Assembly. In my very short period of time in this Legislature, I've had two very distinct and different views than, say, others who have been in government and in cabinet and have a few different views.
We often hear the debate in the Legislature that the decision, in the rough context of…. The decision might be bad, but it's not as worse as it was before. You can reframe that in a bunch of different ways. That is often what 30 minutes of question period turns out to be, which is: "Yeah. It's bad, but it was worse." That's a terrible thing to say.
I think that from the various positions that I've had — on both the government side, as a partner, and now on the opposition side — I've really seen how the political parties, as entities, have taken full control of this Legislative Assembly to twist it from being a democracy of….
There's a perception of serving constituents. But ultimately, if there is, as John pointed out, concern and a scriptedness within our caucus meetings when they're open, then I would suggest that the interests of the public are not what's being protected. What's being protected is the interests of the political institution, which is a party that we all are a member of — one of the three political parties represented in here.
I just wanted to provide that context. I think that it's not necessarily: is it worse than it was? When the current government was in opposition, they were arguing for freedom of information and proactive disclosure. And when they become government with a majority, they use that majority to proactively restrict.
S. Holman: Yes. Although the biggest change has been the expansion of the public relations thing, right? That is new. That is something that has expanded over time.
A. Olsen: Sorry, I didn't mean to be in a discussion. Not necessarily one political brand or another.
S. Holman: That's true.
A. Olsen: That is a consistent growth from….
S. Holman: Yes, absolutely. That is a consistent growth that's happened across party lines. That desire for message control has infected our political system in a really profound way. It's made our default tendency towards secrecy in Canada even worse.
I mean, all of you have received public relations training — sticking within the message box, blocking and bridging. We're not giving the public real answers to questions. We're not giving journalists real answers to questions. We can say that this is because of media aggression. We can say that this is because of opposition aggression. We can say that this is because of partisanship. The casualty is the public's right to know.
S. Chant: You talk about empathetic decision-making. I think everybody should be trained as a nurse, to start with. Okay? Just to be clear. There are many people out there that don't include themselves in their decision-making. They think about others, and sometimes they make bad decisions from that perspective as well.
I wonder how much the information containment process is around safety and trust. Certainly, this is a new environment for me — full-time nurse prior to getting here, working in community, and what you see is what you get. However, a lot of times, if you provide a ton of information, people become disabled by it.
I will use an example from my other world. I will walk into a family where a senior is not doing well. We've got a whole bunch of family members, and we need to figure out a way to have this senior do better through support or whatever. At a certain point, they become dysfunctional if we provide a whole whack of information, which is at my fingertips. I've got a whole whack of stuff. So I am selective, at times, about the information that I provide in order to support the movement forward and to avoid that dysfunction.
I was very interested in what you said about municipal councils always being open, because I perceive — and I don't know a lot about municipal council, because I didn't do that route — there's a lot of stuff that goes on elsewhere before we meet in the public environment, but I could be wrong.
A. Olsen: No. Not in my experience.
S. Chant: No? Okay.
I am concerned, and I also fully agree that people should be able to access information to make good decisions.
I was a foster parent for years, and one of the big issues of kids that came into my care — teenagers usually, God help us — was that they had no critical thinking. They would come in, and they didn't have anger management. They didn't have problem-solving. All the things that you sort of think that kids are instinctively taught aren't there.
It concerns me a little bit as to, if all that information is available, and we're asking people to feel safer and to trust — because that's what you're saying to me; they're looking for a way to control their environment so that they can feel safe — how do we strike that balance? In my brain, that's very challenging.
S. Holman: It is very challenging, and I think this is a really great question.
If we are feeling that the public is not going to make a good decision if they're given all of the information, then that's a failure on the part of our education system and on the part of how we have helped people become good citizens, good consumers, in our society. We shouldn't be dealing with that problem by restricting flows of information. We should be dealing with that problem by helping people become better decision-makers. That's the solution to the problem.
You're right that feelings of control and certainty can be resolved through other measures. That's what authoritarianism is about, as an example. That's what any kind of paternalism is about. "We will take charge of this situation for you. We will make you feel certain. We will make you feel in control." There are many ways to reach control and certainty. I disagree with some of those ways.
What I'm saying to the committee is if we want a democracy, if we think that is a good, then that means people have to be given the information that they need to make good decisions for themselves. We have to trust that those people will make those decisions.
It's part of a whole entire information ecosystem. It's an information ecosystem that, in fairness, we are not well supporting right now. We can see this in almost every single major issue that's coming up in our society today. This is the culmination of it.
We have this last chance, this narrow chance before we're in for 30 years of ever-worsening disaster — that's what the Intergovernmental Panel on Climate Change says — to shore up our democracy against what's about to happen, to be able to continue to have decision-making — individual decision–making, collective decision–making — that is within the best traditions of democracy. That's what's at stake.
You're right. It's not as if there aren't other ways to reach control and certainty. There are, and we may end up there. I personally don't like that, but it is a possibility.
Thank you. It's a very good question.
R. Glumac (Chair): We have a question from Kelli.
K. Paddon: Sorry I couldn't be in the room with you, but I've been listening, and I appreciate a lot of your comments and definitely a lot of the information to consider.
Any time that I hear from anyone about…. You described that paternalistic, the patriarchy. Any time that we can unite information, and let's do away with the patriarchy and this colonial idea of that control…. I'm a fan there. I appreciate that, and I do think that there is more information available now, generally, not specifically necessarily to this topic.
I'm not making any statement there, but generally, as citizens, we have more information coming at us at any given point. I hear what you're saying. What is our ability to participate if we don't have that literacy and if we aren't able to critically examine not only the information but the source?
I definitely don't want to underestimate British Columbians. I know I get a lot of questions that are…. It's very apparent that that critical analysis is going on. But I do hear what you're saying about needing to provide that literacy in order to build a strong democracy or protect a strong democracy. I did hear you say that we're not supporting that ecosystem well right now. So I guess I have three questions, if you'll bear with me.
S. Holman: I've got my handy pencil out to write them down, so it's all good.
K. Paddon: All right. I do come from a framework that is highly invested in social justice and social change and equitable access to everything. Have we ever had an ecosystem that supports what you're describing? If we have, please let me know when or what the conditions were there, because I'm very interested.
As well, the combination of critical thinking and empathetic decision-making…. I was trying to think: is there an existing place where we offer that in our society? We do have our institutions of learning. We can take a critical theory course or degree or 20 degrees, probably, and learn something new every day but not necessarily incorporate that empathetic decision-making. Where would we and how would we offer that to British Columbians and to citizens? Who is teaching that would arguably taint whether or not we think that that's actual learning or an actual offering without agenda.
Right now I've heard you describe, as well, that it would depend on where the information is coming from. There are strong opinions as to what the validity or the agenda attached is. I would think that teaching people who want to be more involved…. The source would be very important, and I question whether we have anything or any source for that right now.
S. Holman: I've got two questions here. Have I doubled up?
K. Paddon: No. I think I combined two of them.
S. Holman: Combined them, a double-barrelled question. I teach that in journalism.
I want to just address your initial comment that we have and more information coming at us. Yes and no. We do, in some ways, in the sense of the proliferation of social media and the proliferation of websites and accessibility to information electronically. But do we have good information?
What I know is that, increasingly, government — and this has been going on for a very long time — is studying less and less and collecting less and less information. I'll give you an example of that.
In the 1960s, the early Trudeau government was very concerned with the availability of information. This was a big topic for them initially — didn't end up that way. That's another story. Because they were so concerned with whether or not people had information and what information that they had, here's what they did. They actually hired graduate students across the country who fanned out in communities ranging from rural Labrador to crop pickers in the Prairies, and they spent the whole entire summer with them assessing what their access to information was.
A Voice: In the '60s.
S. Holman: In the '60s. I know, right? I have all of those records.
I would challenge whether any government would embark on anything like that now. I do not believe they would, and this goes to the data deficit that I talked about. In a lot of circumstances in this country, we simply do not know, because we don't have access to the information. Part of this is because the size of government under neo-conservative regimes shrunk, so there was less capacity to do this kind of work. So government ended up knowing less. Therefore, it ended up relying on people outside government for particular pieces of information.
This is why we sometimes see decisions being made by government that are entirely informed by what industry is saying rather than any kind of independent assessment. Northwest transmission line, by the way, was an example of that.
So yes, we have more information in some ways, but in a lot of ways, we don't, especially in this country. One need only look at, down in the United States, how much more information those governments have in comparison to governments in Canada. We would be so lucky if we had that.
Now to your questions. Has there ever been an ecosystem that supports this kind of decision-making? We basically talked about it in the '60s and '70s. It was this idea of participatory democracy. When the elder Trudeau was running to be leader of the Liberal Party and then Prime Minister, this was one of his big ideas — that people needed to become more involved with government, that people needed to participate more in government.
This was part of a worldwide movement at the time. It's kind of interesting. Remember I talked about how the size of government was increasing in the '60s and '70s? One of our responses to that was participatory democracy. If only we can get people more involved, if only they had more access points, if only they had more control, this wouldn't be such a big problem. We see this whenever something becomes big.
We'll see this when it comes to the climate as well, right? We'll see a variety of different reactions. People will try and get closer to the thing, try to exert control over it. They'll try and restrain it, or they'll try and flee it. We'll see this play out over the next 30 years.
So in answer to your question, we were working on that idea in the '60s and '70s, and then it kind of puttered out. But we do see governments around the world where things are more involved, where people are more involved, where there is freer access to information.
I mentioned, for example, New Zealand, as an example of where information about what goes on in cabinet is much more readily available than it is in Canada, because it actually is available. We can see other governments around the world, as well, in that respect.
I found your question about: is there a course that is teaching this…? Who is teaching this kind of decision-making? Could I do a little exercise with everyone? Would that be okay? I'm a teacher too, right?
Let's take a little sheet of paper, and let's have something with two columns on it. We've got one column, which is "good," and the other column, which is "bad," because every decision has a good or a bad. We can agree on that, right? Okay.
Then let's consider all of the parties involved in a decision as an MLA. First, there's the MLA. That's you. That's our first row.
S. Holman: No, no. We've got two columns here, the "good" and the "bad," and then we've got the rows. The first row is "MLA." That's you guys. Then the second row is, let's say, your party. I know you guys. That's important too. Then the next row, if you're in government, is "the government." That doesn't apply to all of you opposition members. Oh, maybe it does. You might want to consider government too. You've also got your constituents. That's the next row. And then you've got the broader public.
So now we've got a matrix. We've got "good" as one column, we've got "bad" as another, and then we've got all the various different people that would be, potentially, affected by a decision. We could tease this out a little bit more if the decision was a little bit more complicated.
Then what we can do now is on any given decision, we can make our own assessment of what the good versus the harm — versus the bad — would be of any given decision. That seems to be particularly helpful to me. I think that would be particularly helpful to a lot of people, because when you intellectualize it out, when you intellectualize empathy, when you actually are forced to consider how this could be good or how this could be bad for someone, then you're going to be automatically making a better decision than you otherwise would have.
We don't teach this. We don't these kinds of matrixes. We don't teach this kind of procedural decision-making, but it's really helpful. I know it's really helpful because this is how I teach ethics in journalism. We have to go through the same kind of decision-making too. Is it good for me as a journalist? Is it good for my news outlet? Is it good for my audience? Is it good for my sources? Is it good for the broader public? Then, if we consider each of those people who is going to be affected by the decision, and what is the good versus the harm, what is the good versus the bad, then we can make a better decision.
T. Shypitka: Could I suggest that the default be that row 3 be "good" and the other rows be all "bad."
S. Holman: There you go.
But that's helpful, because it really helps better analyze what we're talking about in anything that we actually do for government or whenever we do any kind of decision-making.
R. Glumac (Chair): Talking about history, I don't know if you can answer this question or not. You did mention that in local government, these decisions are being made in the public realm here in B.C. and across Canada. How did this come to be? Municipalities are governed by the Community Charter, which is provincial legislation. They're different than how things are happening out at other levels of government. Do you know the history behind that?
S. Holman: I don't know the history behind that. I think that would be a really interesting question and answer. What I am worried about at a local level is that we do see the increased use of in camera. I think that's a flow-through from cabinet government, because it's again this sort of assumption that decision-making needs to happen in private. But as you know, the default is not that.
The default is we have a report to council that we consider. Everyone can consider it. It's publicly available, and everyone hashes that out during a conversation. It doesn't seem like such a bad system — trying to get people more involved who want more information.
I do have to credit Gordon Campbell on this front. He tried, with this open cabinet system, to do things a bit differently. It didn't work out that way. It was mocked by the news media because of the amount of control that was exerted. But it was an attempt. I'm a modernist. I always like attempts. Even if an attempt fails, it's an attempt. It was an attempt to do something differently, and I kind of liked it.
He also introduced things like performance measures as well, which have receded over time. Again, that's a really helpful thing. Have some statistics. This is the way that you can account for whether or not you're doing bad or good. Those statistics were pretty robust during the first couple years of the Campbell administration. It has been scaled back pretty dramatically. But there were some interesting ideas in that mix back then.
J. Rustad (Deputy Chair): Three points. First, just to the committee: I wonder if we should just do our deliberations in public instead of in camera? Something to think about as we get to that time.
S. Holman: I like that, John.
J. Rustad (Deputy Chair): You've got to lead. You've got to lead by example, right? But you can ask for something.
Anyway, there's a second thing I just wanted to comment on, having experienced both local government as well as provincial government. We used to have our meetings…. I was a school trustee. They used to be public. They used to be broadcast. Those meetings would take four hours, because people would be pontificating to the media.
We got rid of the media, and suddenly those meetings were an hour and a half or two hours. Same decisions, just because people didn't have the opportunity to play it up in the camera. There are dynamics that you have to think about in terms of what you do in public and what you don't do in public.
The question I've actually got for you, and the third point here, is the role of social media. As social media has become such a significant component of day-to-day life, it is heavily utilized by political entities — whether it's government, whether it's opposition, whether it's environmentalists or whether it's whatever groups are out there — to vilify anybody who tries to stick their head up on any issue that is now untouchable.
You try to talk about climate. You try to talk about any host of issues, and you're immediately vilified. It doesn't matter what you're talking about. It doesn't matter if it's right or wrong. There's no debate about the fact. It's immediately an attack to vilify. That has created an extremely challenging environment for there to be any real, quality public discourse on topics. So I'd love to hear your perspective.
I want to think about this once again, because we are the freedom-of-information committee. So obviously the more information we put out there in terms of what we're doing as a government would be helpful, because then that becomes the basis of back-and-forth of a discussion that would happen in the social realm. But I still come back to this challenge of: would it really change the dynamic that you have in social media, given the polarization and, quite frankly, the threats to democracy that you've identified and that I happen to agree with?
S. Holman: I think that's a really good question, John, and I'm going to wax philosophical for a second — not that I haven't been doing that already. I'm a big believer in information as a means of control and certainty. But what I suspect is going to happen over the next 30 years is that where information was a means of achieving control and certainty during the postwar period, community will be our means of achieving control and certainty over the next 30 years. That's what I suspect.
If that is the case, that we will look to community in a wide variety of different ways for this control and certainty, then what that means is that for anyone who is concerned about information and the evidence-equals-action formula, we need to be building new communities together that respect evidence-equals-action formula, and a whole bunch of other things. That's what I suspect. I suspect we kind of need to start over. That sucks, but I think that's where we're at.
If we want to unwind what is in the now, we need to start building something new. That starts with community, and then maybe we have a chance at rebuilding the evidence equals action framework. Maybe we have a chance of rebuilding a more civil society. Maybe we have a chance of rebuilding a more empathetic society. Maybe we have a chance of rebuilding a more rational society. But it needs to start with the kind of communities we start building today.
This is what a lot of people aren't really thinking about, or they're thinking about it passively — not thinking about it consciously. I think there's a real hunger. I see this in my classroom. There's a real hunger for community these days. It's a good question, John.
R. Glumac (Chair): I have a couple more questions. One from Henry.
H. Yao: We still have time, right?
R. Glumac (Chair): Sure.
The committee seems interested in asking questions. You can certainly keep your questions shorter if you like.
S. Holman: This is good, right? Because what we're doing right now is exactly what we should be doing, right? In a democracy, in a community, we are forming, together, an evidence-based community. We're talking through these issues. We're asking about these issues openly. It's why these committees are great at the Legislature when they work well. It's because we actually get to have these kind of conversations with one another.
A. Olsen: Narrow consultations are another form of information control.
S. Holman: Exactly.
H. Yao: Thank you so much for the opportunity. I'm going to play the devil's advocate for a second.
S. Holman: It's all good.
H. Yao: Bear with me. I'm trying not to be a difficult person. I'm just reconciling some of this up here.
First of all, thank you so much for sharing so much really great information. Of course, one of the bigger concerns all of us here share is that we are dealing with the proliferation of misinformation, and we're advocating for a healthier democracy that we all can champion. It doesn't matter if we are across the aisle or not.
Some of the examples you're bringing up sort of place me even more, because as you mentioned evidence-based discussion, as you talked about U.S. having more freedom of information than Canada at this point. My observation — I could be wrong — but it feels like the U.S. is more polarized and partisan than Canada is. I'm not saying there's a correlation, but I just feel that's the sensation.
I know there are other democracies around the world where throwing dangerous goods, throwing chairs across the aisle is a common practice. They put on a fight for everybody to watch. It seems to be driving toward sensationalism instead of actually having a healthy conversation.
I do agree with you. This committee kind of conversation feels healthier. It feels great. We can have a back-and-forth dialogue which is respectful. But my fear is…. I will piggyback on what John mentioned earlier, and I'm going to piggyback off Adam. I hope those two don't mind. John mentioned very clearly that with social media right now, it seems like there is a drive for that sensationalism in society, at this point, to pull things aside.
Adam mentioned very clearly. It seems like progressively our society didn't change that much, but our proliferation of misinformation is exponentially growing. I think it's more tied to Internet technology than anything else on social media.
You mentioned about educating the public, which I think is absolutely something we'd love to look into, but then we have to balance with the last chance that's happening. Do we have enough time to educate the public? How can we actually reconcile the situation?
I think my biggest concern…. One of the things I want to bring up is we talk about partisanship versus…. No, not partisanship. Authoritarian regimes have no partisanship. It's just one party, one direction, one government. So sometimes partisanship does have it's role to fulfil in society as well.
I'm just looking at your diagram that you asked us to share earlier. It's interesting because it feels like that decision-making process seems to be very logical, but I'm thinking about if you put John in my seat, if you put Adam in my seat, or myself, or Rick, different people will have completely different answers on the exact same topic. It seems like there's good and bad, but in the reality, the middle complexity is a bigger one.
To me, it's almost like it's less about the decision-making process, but having a civilized, open, accessible conversation that's focused on discussion instead of, as John mentioned earlier, those partisan or polarized or extremist attacks.
You probably know why I'm talking all about this, because I think you share an ideal that I think we all wish to embrace. Unfortunately, at this point, I still feel like I don't see a solution, realistically, in today's society. I would love to hear your view. I would love for you to share a vision that will maybe help us guide towards the right direction.
S. Holman: Totally, absolutely. You've got a lot there so I'll take….
H. Yao: I apologize.
S. Holman: No, no. It's all good.
Yes, you're absolutely right that information is more readily available in the United States. This is why I've also encouraged this committee to consider media literacy and civic literacy, because if information is just available and you don't pair that with civic literacy and media literacy, then it means nothing, in the same way that it means nothing if people can't do anything with that information, which is the situation in a lot of cases in Canada.
Yes, the U.S. has a problem. It absolutely has a problem right now. That problem, by the way, also exists in Canada. It's coming. We simply have, at the present moment in time, a much more managed democracy. That's not necessarily a good thing. It simply means that some of the tendencies that are south of the border may take longer to come to Canada.
It also takes longer to come to Canada because — and this is just my own personal view — the primary Canadian quality, in a lot of ways, is "seeming." We like to seem certain ways. It doesn't matter whether or not we actually are. We like to seem certain ways. Politeness, niceness — these are all ways of seeming that we're good. It doesn't matter whether or not we're actually good. The important thing is whether or not we seem to be that way. That seemingness keeps a lot of things in Canada in check. It has kept them in check for a while.
Your point about Internet technology and misinformation and disinformation, which John also raised, is a good one, because it is playing into this. Here's how it plays into this. There is a theory called a spiral of silence. This was a theory that was developed by a German sociologist in the post-war period. Everything comes back to the post-war period. We're living in that same moment right now.
What she was really interested in was why is it, that in some cases, someone will be elected but the polling shows that they weren't going to be elected, particularly in the case of noxious figures. Why is there that discrepancy between the polling and what people actually do in the privacy of the ballot box?
The theory that she came up with was the spiral of silence. If people feel that their view is not widely held and that it is disreputable in some way, they will stay silent. That's why there's this discrepancy between the polling and what actually happens at the ballot box. This can work positively and negatively.
As an example, the election of Donald Trump broke spirals of silence around a whole host of issues, because suddenly views that had previously not been considered acceptable were seen to be articulated by the president of the United States. It broke spirals of silence.
Social media is an accelerant for that because suddenly, everyone on social media can see…. You can see that other people share your views. Your views are shared by other people. It breaks the spiral of silence. That's why technology and why social media are playing out so strongly in the politics of today. People can see one another, and people can see, when their views are being shared by other people, that they are not alone in these views. That can be positive, or it can be dramatically negative.
Did I touch on everything?
H. Yao: Unfortunately not, but I think I asked too many questions. I'll just stop….
S. Holman: That's all right. It's all good.
H. Yao: I do have two more…. Sorry.
S. Holman: Like Mr. Columbo — I used to do that with cabinet ministers coming out of cabinet meetings: "I just have one little final question. Just one final question."
R. Glumac (Chair): We'll have to bring you back for a six-hour session or something.
Let's go with Susie to close out.
S. Chant: I'm done; I am very done. At a certain point, my brain says: "Okay. Let me work with this. Don't keep layering on more."
S. Holman: I actually do remember what Henry was asking about. I'm sorry. I do now remember.
You were asking how we create that community, how to create these communities. I think you guys….
S. Chant: I suspect that was actually Kelli's question, but I might take credit for it too.
S. Holman: I think all of you have amazing opportunities to create communities of evidence in your own constituencies. Bring people together. Start off small. Start off with commonalities. Then start talking about differences. Be open to changing your mind. Encourage other people to be open to changing their minds. It's all about these small things.
Building community together is an incredible opportunity that you have as MLAs. It's an incredible opportunity that any elected official has. It's an incredible opportunity that I have in my classrooms. Building community together — recognizing that, just because we have differences, it doesn't mean we can't be part of the same community. It doesn't mean we can't learn something from one another. It doesn't mean we can't be committed to the same overall things in our society. It's an incredible opportunity, and it's an opportunity that all of you have in this room.
R. Glumac (Chair): We'll close off this very philosophical and interesting discussion with a thought. With the table that you had us draw, if you were to put Venn diagrams around each of those elements — MLA, party, government, constituency and public — the public is the whole thing.
Henry has drawn some Venn diagrams around that, but we are all people, at the end of the day. When you think about what's good and what's bad for people, who is best to decide that? You could say that people are the best to decide what's best for people, and that can only be achieved through strong democracy and a strong, well-educated, informed population.
I'll end this philosophical discussion with a quote from Thomas Jefferson.
S. Holman: I think I know which quote you're going to use.
R. Glumac (Chair): "Whenever the people are well informed, they can be trusted with their own government; that whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights."
I'll end with that. Thank you very much.
We will recess. Our next presentation is at 11:45. We'll recess for 20 minutes, and we'll see you back then.
The committee recessed from 11:25 a.m. to 11:50 a.m.
[R. Glumac in the chair.]
R. Glumac (Chair): Our next presenters represent the Union of British Columbia Indian Chiefs. We have Kukpi7 Judy Wilson, and we have Robyn Laba.
We look forward to your presentation today. Take it away. The floor is yours.
UNION OF B.C. INDIAN CHIEFS
J. Wilson: [Secwepemctsin was spoken] Kúkpi7 Judy Wilson, Skat’sin te Secwépemc, Secwépemculecw. I just introduced myself, Chief Judy Wilson from the Neskonlith Indian Band of the Secwépemc Nation.
I'm here on behalf of being secretary-treasurer of the Union of B.C. Indian Chiefs and the co-chair for the B.C. Specific Claims Working Group.
About the Specific Claims Working Group. It's a group of Indigenous leaders and specific claims technicians, created via resolution by the Union of B.C. Indian Chiefs in 2013. We are tasked with advocating for the fair and just resolution of specific claims arising in B.C. and advancing specific claims as a national political priority.
The B.C. Specific Claims Working Group emphasizes the historical uniqueness of colonization in B.C. and the need to address the distinctive challenges of specific claims resolution in this province. B.C. accounts for over half of all unresolved claims in Canada.
About specific claims. Specific claims are historical grievances brought against the federal government by First Nations when Canada fails to fulfil its lawful obligations as set out in statutes, treaties, agreements or Crown reserve creation policies. Historical actions illegally taken by the colonial governments of British Columbia and Canada have resulted in First Nations' widespread dispossession of their reserve lands, villages, fishing areas, burial and other sacred sites, as well as our access to water and other resources.
There are hundreds of unresolved claims in B.C. that continue to impact First Nations economically, socially and spiritually. Barriers to getting records and information slow resolution of our claims and have not been consistent with the honour of the Crown.
Specific claims and freedom of information. First Nations involved in the research and development of specific claims heavily rely on B.C.'s freedom-of-information process to obtain records from B.C. public bodies. Access to these records is essential in order for First Nations to substantiate their claims against the Crown.
Our researchers routinely access thousands of records from provincial government departments and agencies for this purpose. For this reason, the B.C. Specific Claims Working Group advocates at both federal and provincial levels to remove existing barriers to First Nations' access to information.
Our First Nations unique information rights and human rights. Since First Nations are required to produce a wide range of government records to substantiate our claims against the Crown, the right to access information is a fundamental component of First Nations' access to justice. Since specific claims allege government failures to uphold their lawful obligations, the majority of the evidence required to prove these claims is in the form of historical records that reside within provincial government departments, such as B.C. Ministry of Transportation, Forestry, Environment, and Land and Water.
Provincial freedom-of-information legislation has direct impacts on the ability of First Nations to achieve justice through government mechanisms of redress, a right articulated in article 28 of the United Nations declaration on the rights of Indigenous people. Just and fair redress for historical losses is a legal right and is also a political imperative if we are to move toward reconciliation. Reconciliation has been deemed by the court and all levels of government to be in the public interest and a political priority.
The B.C. government has a legal obligation, through the Declaration on the Rights of Indigenous Peoples Act, to recognize and protect the rights of Indigenous peoples. Since the just resolution of First Nations' historical claims is a human right set out in international and domestic law and in the public interest, ensuring First Nations access to the records they require to substantiate their claims is necessary to uphold the law and to serve the public interest.
The Freedom of Information and Protection of Privacy Act is the legislative mechanism the provincial government uses to ensure accountability and transparency. The DRIPA requires that the Freedom of Information and Protection of Privacy Act must accord with the UN declaration and must not create barriers to upholding First Nations human rights.
Existing barriers under FIPPA. We have identified key barriers First Nations experience when attempting to obtain provincial government records through the freedom-of-information mechanism. These include prohibitive fees and the denial of requests for fee waivers, prolonged delays, the unreasonable use of many exceptions to disclosure, and widespread failures to create, retain and transfer of records. These barriers must be specifically and systematically targeted such that First Nations' right to redress is advanced and protected.
Failures of the Bill 22 amendment process. Many of the changes introduced through Bill 22, which amended the Freedom of Information Act, were made without discussion with the First Nations or their respective organizations. As such, it contravenes article 19 of the United Nations declaration, which requires government to consult and cooperate in good faith with Indigenous peoples to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Bill 22 was rushed through the Legislature without full debate or a chance for First Nations to make representations to the bill, contravening the UN declaration and the DRIPA. It is baffling that the special committee has been tasked with reviewing the act and hearing from witnesses after amendments to the act have been passed — and, I have to add, without our consultation. The Bill 22 process effectively undermines the work this committee is supposed to undertake.
These are the recommendations. The provincial government must take immediate steps to meaningful, direct dialogue with First Nations as a priority to eliminate the barriers to accessing the information required to substantiate their claims for purposes of redress for historical losses. This work must uphold First Nations human rights as articulated within the UN declaration and outlined in DRIPA.
First Nations exemption from the application fee when filing a freedom-of-information request must be explicitly included in the legislation itself to ensure that the fee will not be imposed by future governments or not subject to bureaucratic discretion.
Introduce strict legislative penalties for public bodies that do not meet legislated timelines, and work with First Nations to address under-resourcing.
Make the resolution of First Nations claims a priority by strengthening the implementation section of 22(2)(d) of the act. Legislate a duty to document in the act. Hardwire human rights principles, like self-determination and respect for rights and title holders, into legislation and all processes for developing and reviewing it.
Thank you. That's what I have for the Union of B.C. Indian Chiefs presentation today.
R. Glumac (Chair): Committee members, are there any questions?
A. Olsen: HÍSW̱ḴE. Thank you very much, Kúkpi7 Wilson, for your presentation.
I'm not sure if you were part of the conversations, but during Bill 22, it was certainly raised by the First Nations Leadership Council and maybe UBCIC, as well, just with respect to the impact of fees. It seems like that change happened, I think, as the bill was moving through the process.
Do you have any context or information as to what other recommendations were made at that time? I'm just trying to think, because you've made a recommendation to us today to have the fee exemptions in legislation and not regulation. Was that part of the recommendations that were made back last fall? Do you know?
J. Wilson: Yeah. The union sent the letter, and then it should have also been from the First Nations Leadership Council, but I'll call upon Robyn Laba to articulate that part about the legislation and regulation.
Robyn, can you please step up?
R. Laba: Hi. Thanks for having me here today.
As we said, we were sort of blindsided by the introduction of an application fee for all requesters. We sent an open letter talking about that and asking it to be withdrawn on the basis that First Nations already face disproportionate levels of poverty, and to impose new fees creates further hardship for the resolution of their claims.
After we sent the letter — I think it was after the bill had already been passed — we received a letter from the minister — or the leadership council, I guess, received it — informing us that First Nations who request documents from public bodies would not have to pay the application fee. But as far as I know, that has not been formally built into the legislation.
There's no guarantee, and there's no mechanism for protection there. Our position is that there should be no application fee, period. That's a bit of the history, as far as that piece.
J. Wilson: Adam, to articulate it, exemption fees in legislation and in the regulation, if that's what you're asking us.
A. Olsen: If I may, I think currently they exist in regulation only. I'm just wanting to make sure that we're clear on that and that it makes sense. The same reason that government likes to have things in regulation — because it's flexible — would be the reason why I think the Chiefs articulated that it should be in legislation. That's fine. Thank you.
J. Wilson: The UN declaration [audio interrupted] there too. I think we identified the UN mechanisms of the declaration that should be aligned with your legislation.
H. Yao: I want to explore a bit more about the delay part with you as well. It is a very common theme that many presenters were talking about. The FOI seems to be delayed. Sometimes they get a 30-day limit, and it's delayed again and again. It's become, unfortunately, a bit of a disruption, especially for journalists who are trying to get published articles out.
You mentioned that you would love to see…. My assumption is that you would love to see more streamlined processes, specifically supporting Indigenous communities. When they make an FOI request, they can be sure that's passed within the 30-day deadline. Am I getting that correct?
J. Wilson: Yeah, the existing processes are very lengthy. There's no enforcement or penalties or issues in regard to delays.
I'll call upon Robyn Laba to articulate it further.
R. Laba: Sure. I know there are legislative timelines as far as the various processes. When you first apply for or request documents, there's a 30-day timeline. Then, if there are fees for the copying, etc., once you pay, there's another 30 days.
For the purposes of historical research to do with claims, First Nations requesters have no choice but to ask for thousands of records to substantiate these claims because they go back so far. You have to trace the full historical record. We've had instances where the delays are just…. We've had records delayed for over a year, sometimes two years. It's unacceptable for First Nations to have to wait that long. These are legal processes that they're involved in. They have to be done in a timely way.
The other part of that is that I know there's a complaint mechanism as well. We've been contacted by people that work on behalf of the commissioner looking into these complaints, saying: "Okay, we can give this extension. Do you agree with it?" There's been some discussion that way. But they're pretty frank in saying that the reason is that these departments are under-resourced.
If you don't agree, there's nothing they can really do anyway, because they just don't have the personnel to handle the volume of requests. The volume of requests isn't going to change. The resourcing and support have to change in order for these legislative timelines to have any meaning.
There should be, our position is, penalties built into the legislation for these delays, because the cost is borne by First Nations trying to get all the information they need to substantiate their claims and have resolution for these long-standing claims.
I don't know if that helps explain things.
H. Yao: That's perfect. Thank you.
J. Rustad (Deputy Chair): Thank you for the presentation, Kukpi7 Wilson. It's good to see you again. Historically, there has been a lot of information that has been withheld from First Nations. I think about discussions around what has happened on the land base and management of things on the land base, and First Nations were often informed after the fact. I think, particularly, about the land management planning system that was done in the '90s and into the early 2000s — how that process left First Nations out.
I guess it's a two-part question, but I'll ask the first part. Do you think that…? Obviously, things have changed in terms of government-to-government relationships and the process, but should all decisions made on the land base…? Obviously First Nations should be involved, but should all that information and the decision-making process going into it be made available for First Nations — and others, of course — with regards to decisions on the landscape? It's kind of a rhetorical question, but I just was curious if that's your perspective.
K. Wilson: Well, the historical records are important to us. Being informed and making good decisions through these various mechanisms — whether it be specific claims or…. I guess now it's coming up as all these other types of land resource agreements. So we do need to have informed information. As you mentioned, we were left outside of the land use processes.
We do need this important information, because we have our oral accounts, but we also need the provincial records to be able to come up with the decisions. For example, Sun Peaks Mountain Resort. As you're aware, Minister, we haven't had the consultation records….
So our explanation was that the ministry's offices moved several times. So that's all the consultation records they ended up having, but we still haven't…. We requested them decades ago, and we still haven't received them to be able to review the consultation records so that we can meet with the province and discuss any of the impacts and any of the concerns that we have. That's an example of how we were not shared any records at all.
So that's been lengthy and ongoing. We've got layers outstanding, requesting those consultation records. It's a very stark contrast, because with Mount Revelstoke for example, we did similar requests as a collective of five bands, and we did get 20 or 24 boxes of consultation records for Mount Revelstoke. So that was done, I guess, within a year or two. At least we got the records and we looked them over. Then we looked at the consultation. It was inadequate, and the ministry agreed, and we started a process.
Unfortunately, Mount Revelstoke was then sold. I think it was George Simpson who was one of the owners. But it was sold to Gaglardi now, and we have to start all over on, say, for example, engagement. But that was more on land and resources.
But on the specific claims side, there are federal processes laid out. Part of the legal duty and obligation is to have access to those records. So thank you for raising that. I'm just wondering: does that answer your question?
J. Rustad (Deputy Chair): It does, thank you. If I may, just the second part of the question…. As relationships have been developing…. And through UNDRIP, obviously, there is much more engagement now, government-to-government, which is the direction it's going.
My concern, though, is that we are still seeing some secrecy of information of discussions. But now it's sort of in reverse. There is information that's at those meetings that's not being made public to the public, whether it's through wildlife management or whether it's other sorts of issues.
I'm thinking that in order to make sure that we're fully transparent, I'd like to be able to see the information flow at these discussions, because I think it's important to bring people along to understand the crux of the discussions. So I'm just wondering whether you've heard those concerns or whether you have any concerns around that same type of issue, just in terms of making sure that everybody is included and that information, of course, can flow.
J. Wilson: In the past, as you're aware, the stakeholders would usually get more information than us — you know, the government and the third-party interests and industry. A lot of times the First Nation never got the same information. I think now at least we'll get some of that information and be able to sit down in meaningful dialogue with all the people involved.
That's what I was hoping for Sun Peaks. That's what I hope for Mt. Revelstoke, for example, and most importantly for our specific claims. We do have an outstanding claim in our area as well, the Neskonlith Douglas Reserve, and there are other claims.
We need to have the full information to have a good dialogue and a good outcome, and I think that's where the barriers that are created hamper that full and transparent dialogue. I think that's why we're here today: to point out that we need access to the information and to the records so that we could have that process.
The process will be more fulsome and align it with the UN declaration on the rights of Indigenous peoples. The records are very, very critical to us in having that information and that dialogue with the government and with the third-party interests on the land.
I know nowadays the landscape is changing. We do have third party and industry coming to us directly as well and wanting to have those dialogues, so things are changing. They're aware of the UN declaration. I do a number of presentations on it to municipalities, to industry, because they want to understand from the Indigenous perspective, not just the government perspective, what the U.N. declaration the rights of Indigenous peoples means.
I'm looking forward to having better-informed discussions, but that means we need the full records, the important records that the province has.
H. Yao: Thank you so much for spending time with us. I'm actually going to piggyback off a previous question talking about government-to-government conversations, especially when it comes to resource sharing and having a meeting between Indigenous leadership first and the B.C. government.
Since we are talking about FIPPA right now…. Although abstract as a concept, would you recommend this kind of Indigenous government conversation with B.C. government conversation? And if somebody is asking for freedom of information for the content of a conversation or content of a meeting, should we also seek approval from Indigenous leadership as well before we release information, just for making sure that we receive both sides of a civil and respectful agreement before releasing information to the public?
J. Wilson: Well, under the UN [audio interrupted] and rights, processes and standards, so free, prior and informed consent is there. I do get a lot of third parties that say that they do want to access some of our information, and we say there is a proper process and protocol, so I would imagine the government would need to be respectful of that as well.
I do recall — I think it's the federal one — there are processes set out in the freedom of information to access information. So if the government does it unilaterally…. But with the UN declaration, I would think now it would have to change — that you would have to respect the rights of the Indigenous people as well.
Some sort of protocol — that's what you're asking me? I think that's where, maybe, your earlier question was alluding to: if there would be proper protocols to the First Nation.
Robyn, can you elaborate on that, or are you clear what he's asking?
R. Laba: I think so. My area of expertise is pretty restricted to specific claims. I think what Kúkpi7 Wilson is saying is that there are provisions embedded in human rights legislation such as the UNDRIP and in DRIPA that would govern how that is supposed to work. I think that's a question for the various Indigenous governing entities or governing bodies to address.
That's what I would say. I would agree with Kúkpi7 in that sense.
H. Yao: I do apologize. I should make my question clear. Thank you so much for your answer.
Basically, what I was alluding to is that Indigenous leadership and their conversations with our B.C. government is a different relationship than B.C. government with different ministries or different public service providers, as it is a government-to-government conversation. So I think, based on the topic we have for today, it almost felt like when it comes to freedom of information, in regards to meetings between Indigenous leadership and the B.C. government, maybe a specialized protocol should be established to ensure that Indigenous government representatives were informed and that approval was sought before actually releasing information.
I'm just toying with an idea. I would love to hear your feedback.
J. Wilson: Well, there would be…. What I'm used to, when we're engaging with the province, is that under government-to-government, there would be criteria and protocols set out on how we're engaging each other, but now we have the UN declaration that has the minimum human rights. We also have Indigenous laws, jurisdiction, legal orders that set out how nations engage. We have court cases.
Some of the nations that won court cases have processes set out through the courts — how the province engages them and timelines, usually, with these court cases. There are a few factors you have to consider on engaging these different respective nations.
I know with our nation, how that would work. With other nations, they would have their protocols. They might have court cases, and they might have other lawful obligations the province needs to follow.
R. Glumac (Chair): I don't see any further questions from the committee. Thank you very much for your presentation today. We really appreciate it.
J. Wilson: Okay, thank you.
R. Laba: Thank you very much.
A. Olsen: I think I'd just like to bookmark, for future discussion, a recommendation for the provincial government to really, I think, deeply engage First Nations leadership and First Nations on this particular issue.
We are in the process of, perhaps, making recommendations to say that we want access to information to flow freely. However, I think that this is one area…. Specifically around the ideas of publication schemes that was brought…. What is the scheme for this? There is, I think, a need for information to become public at some point, and you don't want to jeopardize the negotiations that are happening, but the public needs to know what those are. I think that…. I don't know that….
I definitely respect the presentation that was given today. I think it was fairly specific to specific claims. There's a broader conversation that needs to happen here, probably led by the Minister of Indigenous Relations and the secretariat.
R. Glumac (Chair): Thank you, Adam.
Our next presenter is on the phone, so we are going to call them right now. Hopefully, that works out. Just be patient for a minute while we set that up.
We'll take a five-minute recess.
The committee recessed from 12:19 a.m. to 12:21 a.m.
[R. Glumac in the chair.]
R. Glumac (Chair): Cameron, you have the floor. We look forward to your presentation.
C. Bell: All right. Thank you very much.
I've got a lot to cover, so I've been sitting eagerly at the phone here. I was born and raised in British Columbia, and I've studied here. I've worked here, been a businessman here. I've also had experiences, both good and bad, with the Privacy Commissioner, and I have been an analyst for compliance and enforcement for the province as well, for just a very brief intro. Hopefully that gives you a little bit of context here.
As far as what I want to present, there are a number of concepts. Don't worry. I've timed it to make sure that I'm well within time, and we should even have some time for questions.
One thing. We do need clarification and specification around the requirement for an entity's address, a public body's address, for written information requests to be provided. Those bodies must provide it correctly, upon request. Also, any number that you're given to contact them at should be able to provide that information. This includes when you're given an aggregate number, such as Service B.C. or 811, and, more especially, if that's the only contact information you're provided for them.
Any address from which they write you must be considered acceptable for receiving an information request under the privacy legislation. If a request, as such is written to an address that an entity provides, it must be considered delivered and received. The internal communication is, of course, that body's problem. That is not limited to, but especially when that's been agreed upon….
There is precedent for this in ministries, review boards and alleged courts, deeming receipt, whether or not actual receipt has occurred. In this case, we're only discussing actual receipt by the entity, with internal offices and internal communications being an internal matter for which they must be responsible for, because the individual cannot be, as they have no control over that. They cannot provide only an email address, nor can they require that you have an email address for receiving any of these records or information at.
Internet is still expensive. Many people live rurally and physically can't get at it, even if they have a computer. Privacy rights are not subject to Internet access. Even if those issues didn't exist — and they do, as many people still do not have Internet access — really, an individual is not obliged to consent to their information being relayed over foreign DNS servers.
If a brick-and-mortar body can send and receive other mail, legal documents and/or shipping and supplies, they can certainly receive mail and information requests there as well. If no address is provided, then hand delivery or other delivery to an available location, with internal communication being that entity's responsibility, is enough and sufficient. This already counts for service in other matters in B.C., and if it doesn't, they have to stop saying that it does. But they do require that of individuals, so it must be required of entities and public bodies.
Failure to provide an address — and yes, this does occur — or to conduct their internal communications cannot provide allowable delay or an excuse for a delay. Right now, in practice, even if not on paper, all that has to happen is that the entity provides no address or an incorrect address for the specific office at which they would prefer to receive an information request, which might differ, with or without them telling you, from the address they use for all other communication.
In either case, they could simply ignore the request, which does occur, and then time ticks on. Then you try to contact them again — as the OIPC tends to ask that you do, quite reasonably — and time ticks on. Then you write the OIPC, and time ticks on. Then the OIPC can sometimes take multiple months, which can be over six, to respond, and the time ticks on. Then the OIPC asks if the entity has the request, which can simply be denied, and the PC does not investigate further, whether or not proof of delivery and receipt has been offered, and the time ticks on.
Further, if the entity or public body has been reported for not providing the contact information at which to make a written request, the OIPC might presently respond to say to contact the very party whose very contact information for doing so is what was being reported as missing and withheld in the first place, and then time ticks on.
Then the OIPC may finally agree to either you resending the request at a new date or them forwarding it at a new date. Suddenly, the entity isn't seen as already in arrears or non-compliant, despite the date of the original request and proof of receipt of it at that time. This allows them to falsely use that new, much later date as an excuse for not having the otherwise required records anymore. This new date can be over a year or even over two years in the future after the original request, with no progress on the file. This must be rectified.
Individuals also need informed control over their information not leaving the jurisdiction that they are in. There can be no penalties for not agreeing to have it leave that jurisdiction.
For example, an individual as a Canadian citizen is not obliged to, say, the American Patriot Act or any other foreign legislation. Individuals need informed control over their information not being shared with additional entities, whether or not within the same jurisdiction. The privacy rights of the individual, in any case, must be extended by the responsibilities of those with whom it is shared. There can be no penalties for not agreeing to have it shared.
There is precedent for this, as well. For example, a very clear example is that if a lawyer shares your information with their staff or their contractors, the responsibility for the privacy extends to those with whom the information is shared. This is true in many interactions with the ministries, but it's not always enforced at the level of their contractors. This is very important — and it's getting more important, not less important — in the new era where data rights are attached to your privacy rights. There's even a new segment of human rights.
We can look at the B.C. case of the AggregateIQ Data Services or AIQ, a joint investigation between the OIPC of B.C. and the federal Privacy Commissioner of Canada, where they found this company was quite illegal. They also found this company was working, in that illegal sense, with Cambridge Analytica, a company in the U.K., part of our own commonwealth here.
That company is now globally known for not only accessing tens of millions of people's information without information or consent but also globally known for lying about their handling of it and also globally known for not responding to information requests, even criminally so, despite orders and laws.
In such an environment — which is increasing, not decreasing — we therefore also need to know and be able to reduce the weak points in the security of an individual's privacy. The individual must therefore be allowed to have their information retracted and verified as retracted so as to retain some form of control.
There is precedent for this as well. If the RCMP have your fingerprints and it turns out they don't need them, you're allowed to ask those records be removed. They have to not only do that but verify it has been done. To whatever extent — and we imagine there could be some — that you might expect some difficulties in that retraction and verification of that, therefore no more information then, to provide a given service, must be required by the government body or any other body. This is also included by their software or other purchased goods.
For example, now that the B.C. government is in the app-making business…. I do want to preface by saying that the issue of vaccine, no-vaccine mandates is entirely outside the scope of this presentation. That's not what it's about.
In the issue of the app itself, long before we consider concerns about it scanning your data, you have to go through multiple third parties to acquire the device to get the app and to get that app on the device. There are multiple other privacy policies, third-party, which government would have no control over and the individual has no control over and would be required to agree to. The individual cannot be required to make decisions about their privacy simply to comply with the government on orders that otherwise have nothing to do with their privacy.
The OIPC must also be audited and brought into compliance with all legislation — the provincial privacy legislation for one, but also the federal privacy legislation, Criminal Code of Canada and all other legislation. They can't just say something and stick to it, despite evidence that it is wrong. They can't be allowed to do that.
If the OIPC refuses to respond to written communication, then an individual must be allowed recourse, such as, perhaps, being allowed to record and rely upon that recording at the PC's expense. There must be a review process in the legislation of the OIPC in case of a negligent ruling. This must be at no cost to the individual, with costs covered to the individual.
The OIPC is a government office. It's already big and intimidating, and it's more opaque than most, as we will cover. They have more resources than any individual, especially a wronged individual that's relying on that very OIPC. The OIPC must be responsible for the content of their own communication as well as for delays that they cause. They must be legislatively required to respond truthfully to all facts in a reasonable time — given no more time than the individual would get, obviously — and also to be responsible for their own delay.
They must also not allow any body an excuse that's not permitted in the act — for example, if the body claims they've lost it or otherwise doesn't have it, especially despite proof of delivery. If the entity claims a change of organization or the entity claims that the reason for nondisclosure is due to the timeline — when that timeline has been artificially, by accident or design, delayed by that public body or entity or even the OIPC itself — or, of course, any other excuse that the act itself doesn't permit…. The OIPC must not quote the act only when convenient to avoid doing work or reviewing a matter that they've already, perhaps, missed something on.
They must also apply the act where it requires responsibilities of the public bodies and entities and/or of the OIPC. When we say "public bodies or entities," this must extend to a contractor of the public body as well. There must be a body to whom the OIPC reports, and they must be honest about who this is, wherein similar information requests can be made of the OIPC.
Otherwise, they could hide behind a false statement — which could occur — refusals to be recorded, or refusals to respond to written communication made well within the legislation. If you were to look for records which they may have misrepresented to the contrary, they could also hide behind being the very body to whom you would report a failure to provide just such information or just such a failure to do so. They must also be noted as falling under the Canadian privacy legislation — which does include them, as a government body and a government office, but is in practice often denied.
Public bodies and corporations must not be allowed to record without themselves agreeing to be recorded or, at least, providing you a copy of their recording, by mail, at their own expense. Otherwise — and this does occur, as recently as 2021 — you have the government office or sometimes even private bank methodology. We’re referring to the government one here, of requiring that you phone a specific number, at which they claim they are recording.
Then if you say, "Okay, fine, you can record. I'll record," they'll refuse to be recorded. At this point, if they tell you something — which could include but is not limited to their contact information, for an information request — they could give you the wrong information, otherwise deny the correct information, or simply not answer the question.
Then they could rely on your not using the correct information they didn't give you and on being the sole holders of the only records of information showing them to be in contravention — but also the only records that show that you've even attempted due diligence, since you are, at that point, denied the ability to make a written request, which you could then forward to the OIPC in the first place.
If an individual is asked or required to call a number, they cannot be required to agree to be recorded, especially if they won't mail you a copy or allow you to record. You cannot be required to make decisions on your privacy rights simply to proceed as compliant with other issues with the government. If the public body or entity will not agree to fairness or natural justice, then they must be seen as the ones ending the call or refusing reasonable communication and be responsible for all intervening delays and effects thereof.
Acts differ with each other all the time. Therefore, just because a right is not recognized in an act, it doesn't mean you don't have that right. It just admits a failure to recognize that right. Neither the act nor the OIPC may be allowed to discriminate against disabled people, rural dwellers, senior citizens or any other demographic by requiring Internet access, by extraneous costs, by deeming mailing times to individuals or by anything else which is beyond the control of the individuals.
I realize that that's a lot to have covered. Do we have any questions at this time?
R. Glumac (Chair): I'm looking to the committee. Do committee members have any questions?
We do have a question from Tom.
T. Shypitka: Thanks for that, Cameron. A lot to unpackage there.
You mentioned something about the OIPC needing to be more accountable and needing to report. What does that entity look like? Is that an oversight office? I wanted to maybe get more detail on that.
C. Bell: I hear the name Tom, and I think the voice sounds familiar. Are you the East Kootenay MLA?
T. Shypitka: That's correct.
C. Bell: Excellent. Well, we have met. That's why I recognize your voice.
T. Shypitka: Hey, Cameron.
C. Bell: Please clarify your question, if you don't mind.
T. Shypitka: Well, you mentioned somewhere about the OIPC, the commissioner's office, needing to be more accountable to work they do or don't do, and you mentioned something about that it should be reportable to someone or something.
I'm wondering what that looks like. Is that like an oversight-type office? What does that look like?
C. Bell: In theory, they would already report to, perhaps, the provincial Ombudsman. But that wouldn't be something that would be able to respond to a specific thing in a reasonable timeline if you're already being held up. Yes, an oversight office, to which they would report, could be streamlined, perhaps, by only having to deal with that type of oversight.
If you're having problems with the accountability of the OIPC, they're the ones that are responsible, essentially, for the transparency of public bodies and, of course, private corporations as well. Not to go outside the scope of this committee, but it is the same OIPC either way, right?
Since they're the ones responsible for the transparency, there is nothing enforcing their transparency or to keep them accountable, at least nothing sufficient and nothing in practice. So, yeah, if we had an oversight office, perhaps, it would be something that you could report them to and say: "Look, I've tried to do this. Here is my communication. They told me, verbally, this, and now they've gone back on it."
For example, you could be verbally told: "Hey, you need to speak with this person. Your concern has been elevated. You have to speak with a supervisor." That supervisor, in more than one instance, might have telephone information…. This occurred in 2021. I'm very, very afraid of additional prejudice here — not from you but from them. You could then have the requirement from the OIPC — only verbally — to speak verbally with a supervisor at a contact number, which doesn't work. You can try it as much as you want, and it won't work.
If you report that to the OIPC as being non-functional, nothing happens. You can go back to the original intake voice mail, and you won't get a response. If you eventually write, you might get an admission and an apology, but they will take no responsibility. They won't even comment on anything that is inconvenient. They won't deny it; they just won't comment. They can contradict anything given to you verbally, because if you're not allowed to record, you have no fallback position. You can't fall back on written communication, because they don't want it. They want verbal.
Then you're held up for another six months, because the only contact information you're allowed to deal with this at doesn't work, and they've made dang sure that there's no record of it.
T. Shypitka: Yeah, I hear you, Cameron. I see some of that stuff, even with the ministry offices and such. Yeah, I get you. Thanks.
C. Bell: I do want to clarify. I'm not talking about them just not answering a number. I'm talking about providing a number that isn't set up. The voice mail number doesn't work, at least according to the automated telephone-company response, when you attempt it. Then you're given no recourse. You have recourse in the legislation, but the only people you can go to for that is their office. If you were to take any other process to that, then you would just be adding to the time, at which point that delay is not your responsibility. It's theirs.
T. Shypitka: Yeah, for sure.
A. Olsen: Hey, Cameron. I'm the MLA for Saanich North and the Islands. Just wanting to ask a question with respect to your statement around informed control over where information is stored. The government has now made the permanent decision to remove data residency. How do you see that playing out now? What does informed control over where your information is stored look like to you?
C. Bell: You're definitely in a very beautiful area. I've spent some time there.
May I ask you to clarify your comment regarding data residency, specifically, so that I can properly answer you?
A. Olsen: Bill 22 permanently made changes, which were made through orders, to allow for our data, British Columbians' data, to be stored outside of Canada. One of the points you made caught my attention with respect to informed consent around where data is stored. I'm wondering how, in your mind, the government achieves that.
C. Bell: Well, one thing that might need to be looked at is that Bill 22 might…. Just because it says so doesn't make it true. I realize that I'm speaking to a parliamentary committee, and I remind you I used to be an analyst for compliance and enforcement, so I don't state that lightly. But just because it's put into legislation doesn't necessarily make it true. It just makes it this is what we will recognize.
If we look back to Cambridge Analytica, and we look at the British parliament, they have recognized a bigger problem than facing Bill 22. They recognize that their present legislation — in these rapidly and outstripping legislation in data environment — is completely and wholly insufficient to the task of even running a democratic election. They are that far behind. Probably so are we. Now that's on a much bigger scale than simply Bill 22.
Bill 22, of course, does help things in corporations like B.C. Hydro, which was already outsourcing your information overseas well before Bill 22. Just because we went one way doesn't mean that we're going the right way. It's been recognized by similar governmental systems, at a larger scale even, that much more severe problems have not yet been caught up to. So perhaps that needs to be revisited.
To whatever extent it's not revisited, if your information is going to be shared outside of your jurisdiction, I suppose we have to say: what control do you get over how that information is then handled? Once it leaves, say, the British Columbia or at least Canadian jurisdiction…. If we have companies working, as the OIPC and the federal PCC have already determined to be illegal, even right within British Columbia here…. They're going to access your information, potentially without your notice or consent, but even if you had given it, they could also misrepresent how they're going to use it.
If they're within this jurisdiction, you might have some recourse to go after them. If there's going to be a jurisdictional concern, how are you ever going to see your privacy or resistance to identity theft handled once that's overseas? They can share it anyway they want. Are they going to answer to the same government which has allowed it to go overseas?
Because to whatever extent the B.C. government is going to allow that to occur, they therefore shoulder that responsibility. If there are going to be data leaks that potentially occur regarding an individual's privacy or multiple individuals' privacy, the government can't simply say: "Well, it's out of our jurisdiction. We're sorry."
Well, if it's your responsibly for allowing it to go out of the jurisdiction in the first place, then there must be some vicarious liability there. The government might want to seriously look at that because the resulting debts could be something they might not be physically capable of shouldering, which would not excuse them from such responsibility.
It's a scary concern, I would think, because it has been recognized that governments are behind the pulse on this because of the rapid advancement and the rapid evolution in how these are used. Not only are governments behind on this, but running with traditional, non-digital ideas, they might occasionally might have been misstepping and going in the opposite direction.
That's not necessarily a criticism. That's probably to be expected out of human nature. But maybe that needs to be recognized as an issue, otherwise that liability still falls to the B.C. government. They might want to seriously look at it. In fact, I think they should.
R. Glumac (Chair): Thank you, Cameron. I don't see any further questions. We very much appreciate your presentation today.
C. Bell: I appreciate your time. Thank you very much.
R. Glumac (Chair): With that, committee members, we will take a recesses, and we'll reconvene at 1:45 p.m.
The committee recessed from 12:44 p.m. to 1:50 p.m.
[R. Glumac in the chair.]
R. Glumac (Chair): We are inviting our next presenter, Toby Mendel, to give his presentation. He's from the Centre for Law and Democracy.
Toby, take it away. You have the floor.
CENTRE FOR LAW AND DEMOCRACY
T. Mendel: Thanks a lot for letting me participate in this hearing. It's a very important matter that you're discussing.
As you mentioned, my name is Toby Mendel. I'm the executive director of the Centre for Law and Democracy. We're based on the other coast of Canada in Halifax. We do a lot of work internationally on what we call the right to information, because under international law, it is recognized as a human right, which is sort of partially the case in Canada.
I will just mention, among that, the RTI rating that we have developed. It's a very sophisticated methodology for assessing the strength of the legal frameworks for access to information. We have assessed all of the national laws in the world, so 135. There are two other national laws that we're working on at the moment, so 137 in total.
The RTI rating has been recognized, I would say, by all of the key international players in this space: by UNESCO, by the World Bank, by the Millennium Challenge Corporation in the United States, an important U.S. government funder. I think it has quite a lot of status.
Forgive me if I'm a little low key. I just arrived on an overnight flight from Puerto Rico, where I was also focusing on access to information. I had meetings there with representatives from all three branches of government. In Puerto Rico, as in many jurisdictions around the world, all three branches of government are covered by this legislation.
We had a lot of very interesting discussions about all kinds of things and debates on issues that we didn't always agree on. But interestingly, not a single person that I met there complained about the scope of coverage of their legislation. The judicial branch had issues with the legislation but didn't worry that it covered them. Neither did the legislative branch.
In British Columbia and across Canada, this right was originally envisaged as something to do with the executive about improving executive governance. That was legitimate for the time that our laws were originally adopted. But basically, we have retained that character over time so that in most jurisdictions, including in British Columbia, the Legislature and the judiciary are largely excluded from the act.
I'm going to put this very strongly. That debate is over internationally. It was over 15 years ago. New laws cover all three branches of government. I think it's time that Canada, including B.C., just got on board with that. So I have a very strong recommendation that you expand the coverage in that respect.
I also think that it's important to expand coverage in other ways of the legislation in British Columbia. You have the system whereby the minister may, but not must, expand the scope of the legislation by adding bodies to schedule 2, and there's a list of types of bodies that can be added there.
What we would recommend is that you include a generic definition in the legislation so that those bodies are automatically covered. You retain schedule 2 for certainty purposes so a body that's on schedule 2 knows for sure that they're covered, whereas the definition would have to be elaborated if somebody contested it in a case.
We would ask to expand the list or the definitions — currently non-mandatory — related to schedule 2 to cover bodies which receive substantial funding to cover their core operating costs — not a body that gets a grant from the government to do something but if the public sector is covering their core operating costs, or a substantial part of those, and also bodies that undertake a public function. This we would seek to replace with the item in your law which allows the minister to extend to bodies in the public interest, which I think is rather vague.
When it comes to procedures, there are two areas where we would recommend important changes in your legislation. We felt it was very, very unfortunate that Bill 22 added application fees, and those fees have been set at $10, which may be around the Canadian average but are still higher than several jurisdictions in Canada, including federally and here in Nova Scotia.
We feel that British Columbia was a better practice jurisdiction before. We feel that application fees are unnecessary and that they have a chilling affect on requestors, so we would recommend eliminating them entirely or at least reducing them to $5, preferably putting a cap of $5 in the primary legislation but, at least, recommending that that be done in the regulation.
In terms of other fees, at the federal level there are no other fees for ATI applications. That is the better practice. In fact, that's best practice. You can't get any better than that, so it's automatically best practice. We would urge you to consider moving to that position, but at least, we would recommend that requestors not be required to pay the fees for staff time. We think that the staff time, as this is a human right, should not be covered — maybe covering the costs of reproduction and sending of the information.
At least, we would recommend a much higher minimum free allocation of time than the three hours that you currently allocate. You allocate three hours for only one of the types of staff time that's involved in responding to a request. We would urge that cover all of the types of staff time used and that it be set at much higher than that so that, perhaps, a really expensive request could still be charged because, you know, they can use up a lot of public time.
In terms of the timelines, in British Columbia: not better practice. Even within Canada, you have a 30-working-day time limit. We think that that should, at least, be reduced to 20 working days, which is a more common standard across Canada, but we would urge you to consider an even shorter initial timeline of ten to 15 days. We believe that a large number of requests can, in fact, be met in that time limit, and we see that in countries all over the world.
The same for extensions — you have 30 working days. We would suggest that that be reduced to 20 working days.
We like the system you have of requiring approval of the commissioner to go beyond the initial extension. That's a good practice. Also, we have that here in Nova Scotia. We would suggest that language be added there to make it clear that going beyond the initial and then the first extension, with the commissioner's approval, should be seen as an exceptional matter and, perhaps, put more stringent conditions on when that could be applied.
Finally, I will say a few words about exceptions. This is a really complex area, as I'm sure you're very well aware. I can't get into the kind of detail there that I have in the other areas in this short presentation. We will be following this up with a written presentation, a written document, so we'll get into more details there.
Under international law there are three key standards for exceptions, and we believe that the access-to-information law should set out those standards and then apply them to all other legislation. That might sound a little controversial. How could this law override other laws? But because it's a quasi-constitutional law — we do have constitutional recognition in Canada of this right — we believe that that's legitimate. Obviously, the constitution itself overrides other laws to the extent of inconsistencies.
The first issue is that the interests protected by the exceptions should be recognized as legitimate. Some of the exceptions in your legislation go beyond that, and we will detail that in our written submission. Several of your exceptions are not harm tested, so even where the information relates to a protected interest, it should only be where the disclosure of that information would harm the protected interest.
We want to see every exception cast in terms of protecting the interest and then be associated with a harm test. Many of your exceptions are harm tested but not all of them.
Finally — and I think you're fairly solid in this area — we call for a robust public-interest override, and section 25 of your legislation has that. You have a few sunset clauses in your legislation, but they don't cover all of the exceptions, and we would call for sunset clauses of 10, 15, maximum 20 years to be applied to all of the exceptions which protect public interests — so not privacy, not commercial confidentiality, but all of the public interests.
I will stop with that. As I mentioned, we will follow up with more detailed written comments, specifically in the exceptions area. Of course, I'm very happy to take questions and have a discussion with you.
R. Glumac (Chair): Thank you very much.
Our first question is from John.
J. Rustad (Deputy Chair): Thank you very much for the presentation and taking the time. You must be a little tired, but we really appreciate you engaging.
I've got two questions. You talked about other jurisdictions having all three jurisdictions included in FOI. Have you given any thought to including First Nations as part of FOI, given the more significant and growing role they have in the operations, particularly in British Columbia but also in Canada?
That's the first question. I'll wait for the answer. I'll get to the second one.
T. Mendel: In principle, we believe that Indigenous government should be subject to openness obligations — that that is absolutely proper. All forms of governance should be open to the people.
I am not sure…. We haven't really dug down into this issue in terms of the jurisdictional implications of that. Certainly, we would strongly advocate that before anything like that were done, a robust and proper consultation was undertaken with Indigenous groups. We've had some discussions with Indigenous groups about these issues. That would require them having resources and the ability to really understand and research the issue themselves. They are small, very tiny governments, and so they have less resources for that sort of thing.
In principle, yes, we believe that government at every level should be covered by these obligations. But the way to get there and whether that would be something to be done in a piece of B.C. legislation or federal legislation or what form that should take — I think we'd need to have a bunch of process around that.
J. Rustad (Deputy Chair): Thank you for that. If I may, Chair, the second question is…. You mentioned you've worked with, obviously…. You look at other jurisdictions around the world. How many jurisdictions are active with proactive release of information to the point where FOI becomes somewhat irrelevant, because information is made publicly available?
Are there any other jurisdictions in the world that do that now, or to some extent? And can you point us in the direction in terms of what sort of success those jurisdictions may be having?
T. Mendel: I think that the basic premise there is actually a fallacy. I don't think that there is any possibility of proactive disclosure going so far that it eliminates the need for reactive disclosure or requests for disclosure.
We see it in probably every country in the world. We've seen a very significant — including, of course, Canada and all of the jurisdictions within Canada — and massive increase in the amount of information that is being proactively disclosed. That does, of course, avoid the need for reactive requests for that type of information.
A good practice that we would recommend is that where information is reactively disclosed, it automatically would be proactively disclosed, at least where it's available electronically, because if one person asked for it, somebody else might be interested in it. It's pretty easy to tether that to a proactive disclosure system. You can have a special website or a portal for that.
There will always be types of information that…. I mean, you can't disclose everybody's emails. You'd have to go through…. It would also be a massive inefficiency for government to really get radical on proactive disclosure in the way that you're suggesting might remove the need for reactive. You'd have to disclose every email that didn't have sensitive content in it or wasn't covered by the regime of exceptions. Can you imagine even assessing each email?
I don't think it's possible to eliminate reactive disclosure. There will always be a need for people to be pulling the very precise, specialized, individual-to-them information that they want. But proactive disclosure definitely has a positive impact in terms of reducing requests.
I hope that answers your question properly.
H. Yao: Thank you so much, Toby. I really appreciate you spending time with us this afternoon.
I was listening to your presentation, and I would love to hear your feedback. Please don't take this as a challenging of your point but, really, looking for ways to actually turn a lot of your ideas into a practical reality.
I think one of the unfortunate continuous themes that's been brought up to us through presenters is a continuous delay for FOI. That 30-day deadline. It's not accepted but has become the norm. Often an extension is expected, following afterwards. And you're talking about 20 days, 15 days. We would love to see what we could to achieve towards that direction. But I see there's definitely a challenge behind that.
I guess my question right now is…. Again, it's going to be almost a little bit of a piggyback off of my colleague John's comment earlier, too. Through that proactive information release, what else can we do to actually reduce the workload for FOI information so that that way, it doesn't suddenly incur a huge amount of human power to process, as you mentioned earlier, an excess amount of emails?
What can we do, as a government, through different angles, to continuously reduce the workload for FOI so people can access the FOI requests earlier, faster and more accurately.
T. Mendel: Great questions. We support all of those ideas, and I don't that is a challenge at all. I mean, I think, in terms of the time limits…. I have never made a request in British Columbia, but we've made quite a few requests federally, in Canada and in some of the other Canadian jurisdictions, and I think that there is a very serious attitudinal problem there.
We have kind of gotten, many times, what I would politely describe as knee-jerk extensions — you know, 90 days or 60 days or something — and then when we got the information at the end of it, it was obvious that it's basically off-the-shelf stuff that shouldn't take five days.
Just to give an example, we asked, in one case: "Did the organization have a policy on sensitive personal information, and how many requests had they received that were excluded on that basis?" We got a 90-day extension, pretty much — 30 calendar days plus 90 more calendar days. The response came back, and they sent us their policy, which was, anyway, online. Then they sent us the number of requests.
I think that an attitude change is an important part of this. I think that there are legislative tools that you can use. For example, where the commissioner decides that public authorities have abused their discretion to extend, even within the first extension period that you have. Moving their right to charge fees, for example.
You have sanctions under your legislation. They're fairly heavy sanctions. I think what we have seen in other jurisdictions is that the heavy, more penal-type sanctions — quite large fines in British Columbia, for example — are a little hard to apply and a little excessive for the FOI context. It could be interesting to consider some more lighter disciplinary types of sanctions. So if officials are mucking around with this, you put a little bit of bite behind it without going overboard.
I don't know what the practice is in B.C., but in some jurisdictions, commissioners that have that power to extend kind of almost rubber-stamp that a little bit, even though they're the guardians of this right. So I think that there's kind of a change of attitude in a lot of different places.
We do see…. I mean, India has a ten-day response time. It's a big country. They get five million requests a year. They're a populist country, but it's still quite a lot of requests. Of course, they don't always meet the time limits, but they're doing better than we are, and they're a much poorer country than we are. I think a bit of political will there is important, signalling from the top: "This is an important issue. Just do it. Just get them out. Don't move them to the back of the queue." Sometimes you can just send it out, and then it's off your desk.
H. Yao: Thank you so much, Toby. Actually, your response inspired another question in my mind, which I think is great, some of the things you're pointing out. It's almost like…. Does any other jurisdiction around the world do categorization of information asked? I think someone who presented earlier talked about, you know, land treaties. You can talk about different agreements. Some of those had very minimal redaction required. Like you say, it's sitting on the shelf, and it can go out right away.
Does any kind of jurisdiction have a different streamlined FOI identification system? That way, the simpler ones can go out faster than the long ones, such as some of the ones we heard about earlier, like fishing expeditions, where people were asking for huge amounts of email exchanges from a long time frame, where every email had to be gone through one by one by staff members themselves. I would love to see if there's any kind of international jurisdiction that has a best practice regarding how we streamline it and even regarding, again, international standards as well. I'm pretty sure that every jurisdiction does the same thing.
How do we address…? I don't want to use the term "excessive", because I think it does have a role to play in our democracy, but sometimes when people start fishing for the sake of fishing, it can be very resource-intensive and just clog up the system. At the same time — I think some of my colleagues mentioned it earlier too — some of the issues were identified as fishing expeditions as well.
I would love to hear from your perspective, international jurisdiction–wise: what's the best practice dealing with the two recommendations I made earlier?
T. Mendel: Sorry. I knew I had forgotten one response to you on how to make the system more efficient.
I don't know how far B.C. is in terms of putting in place electronic platforms for requests, but Mexico has this amazing all-singing, all-dancing online platform. You make requests on it. You follow up with appeals if you want to. Proactive disclosure takes place through it. The automatic proactive disclosure of released information by requests also takes place through it. It send you sort of yellow warnings and then red warnings as you're running into the timeline. It's a really fantastic tool.
I think that, obviously, digital tools are solving or helping us create efficiencies in every area of human life. This one is no different, in that respect.
I served for six years on the appeal panel — I was sort of the information commissioner, if you will — for the Inter-American Development Bank. Now, obviously, it is a centralized institution, so it's not like a government with all of the government agencies, which is a much more complex set of actors. They would tag documents from the beginning of their life as open, partly restricted or restricted. They would tag, within that, the information in the document that they felt needed to be redacted before it was released, and then the document would get…. You pushed a button when the document was finalized and ready to be public, and it would go off and be back-tagged with the relevant information.
I don't know how efficient that was, because doing that for each document, obviously, adds some time. Again, they didn't do that for things like emails. You can't. You send hundreds of emails every day. To do anything with them makes it inefficient, because just sending an email takes just a couple of seconds, and anything else you'd do would take another amount out of that time.
I think looking at that kind of central system from the birth of a document…. I also think that it could be interesting to experiment, at least, with tagging confidential information at the point of creation of documents. So instead of somebody, five years later, requesting the document, and somebody's got to go through and carefully review and assess the whole thing again, it's already confidentiality tagged, so you just kind of press a button, again, and the exempt stuff comes out.
The fishing expedition, the excessive requests…. I think this is a challenge that we see in the systems. I know perfectly well…. Sometimes people come to me who are upset with the bureaucracy. The fact is that if you have a run-in with the bureaucracy and you've exhausted every other appeal, the one option that remains open to you forever is access to information. You can keep asking requests and venting your frustrations that way. Of course, that's not a public-interest activity at the end of the day.
The challenge is to distinguish those sorts of behaviours from legitimate requesters. It doesn't mean that because a request is large and complicated, it's an illegitimate request. Civil society organizations, academics often make large, complex requests, because they're doing complex research and they need complex information.
Excluding vexatious requests, as you have already done in your legislation, that's something that I think is legitimate and that I support, especially with the involvement of the commissioner. A lot of civil society groups don't, but I think that's perfectly legitimate. I think involving the commissioner to block off requests which are counterproductive is legitimate, but I think that there are not a lot of other tools, really, that are available.
This is a public benefit. It is a human right. Sometimes supplying them requires us to put up with a little bit of inefficient behaviour. I don't think there are a lot of hard, practical, legitimate solutions other than that.
R. Glumac (Chair): We have a question from Kelli.
K. Paddon: Thanks so much. I'm looking forward to your written submission. A bunch of the questions that I have I think are going to be addressed in there, the details. But I appreciate you responding with that digital tool from Mexico to Henry's question.
I'm wondering. I saw the rating that you sent ahead. I'm looking for where we would be able to look for the strongest policies that you've been seeing. You have the international perspective. I know some people have mentioned New Zealand and other jurisdictions. I'm wondering: in your opinion, where is a good place to look for those strong policies? You like to say the best practice — or best practice for now, at least.
T. Mendel: Firstly, the RTI rating looks at the legal framework. Things like the digital platform in Mexico is not in their law. It's a tool that they developed, so it's not actually covered by the rating, so that won't be there.
On the main RTI rating website — which has 135 countries out of 137 that have laws, as I mentioned, rated — it has 61 discrete indicators which look at each quality that we believe a positive law or a strong law should have. You can go into the rating by indicator. One of the indicators is whether the law requires you to respond to requests as soon as possible. Another one looks at the public interest override. Everything that I've been talking about is reflected there.
You can go into the "by indicator," and it will list countries by the point score. So if the indicator is out of four points, you know the countries with four points will come first and then alphabetically within that. You can see there the country, the score that they got but also the exact legal provision. It's a very, very powerful research tool that allows you to look at any of these issues and see exactly: what did the U.K. do, or what did anyone do? Of course, you can go and look by country, but this allows you to sort by better practice on any particular issue. So I think it's a wonderful research tool.
Most people aren't aware that that's a functionality of the RTI rating, but it is. You can see the precise legal provisions, and those will be in English, French or Spanish almost all the time. We have one that's in Greek. Cyprus is in Greek because we had somebody who spoke Greek and whatever. But mostly, they're pretty accessible to you if you speak those languages.
That, I think, is the best answer to that. But I would say if you're struggling with an issue, feel free…. I say this to you and to the committee members that we are always happy to answer emails and have chats and whatever. If you're looking for something specific, just reach out to us. We're very happy to help with that.
R. Glumac (Chair): I haven't looked at the website yet and the comparison of ratings, but in your written portion here, it does say that B.C.'s law remains one of the stronger ones among Canadian provinces. How do we rate among Canadian provinces?
T. Mendel: Within Canadian jurisdictions — we rate all of the 14 jurisdictions in Canada, federal and territorial as well as provincial — you are actually in second place, although you are lower than you were in October, because Bill 22, unfortunately, weakened your legislation. Newfoundland and Labrador is the top with 111 points out 150 as a possible total. You are at a position of 94. Canada is at 93. I will say that Canada — I should have prepped myself on this — is either 51st or 52nd from among the 135 countries with its 93 points. So you would be somewhere in, you know, 50th position.
Please don't feel pleased or complacent with that, because our consistent message here is that Canada is not a strong performer across the board. I mean, Newfoundland is doing pretty well, but apart from that, across the board, the Canadian jurisdictions are weak on this.
Canada was an early entry into this field. I think it was sort of the fifth or sixth country in the world to adopt this legislation at the federal level. Nova Scotia, proud to say, was the first province. I don't know which position we would have been in the world.
We broke a lot of new ground, and we were very innovative at that time, but as I tried to stress in my comments about extending through all three branches of government, we have fallen behind. A lot of developing countries have leapfrogged way ahead of us, including some developed countries. So please look to the strong jurisdictions of the world and not just your peers. If we continuously only look at our peers then we're going to sit here in our mediocre space forever and never break out of it. I would urge you to be more ambitious than that.
T. Shypitka: Thanks, Toby, for the presentation. Pretty informative stuff. We just came back from Puerto Rico from meetings. I'm just wondering why we didn't just come to you on the same meetings. It would have been a better idea.
I'm looking at the map. I'm looking at the global ratings map. I'm just really, really perplexed a little bit on the ratings globally. Canada ranks lower than Russia and some of these jurisdictions that you would think are synonymous with suppression of information and the lack of access. I don't have the site up here right now. I had it, but anyways. Afghanistan, I believe, is number one. These are places that you would think would be the opposite.
You highlighted seven main categories inside the website: right to access, scope, requesting procedures and a bunch of other ones. Is the fact that we're ranking so low because, in a freer democracy such as Canada or the United States, the thirst or the demand for information is higher than it would be in suppressed nations such as Russia or Afghanistan or Liberia — places that ranked really high? Are we dealing with apples and oranges here? I really have a hard time with it.
T. Mendel: That's a very fair point, and we get that a lot.
I want to stress that the RTI rating only looks at the legal framework and doesn't look at how well that framework is implemented. A country can pass a perfect law and then do nothing, theoretically. We recognize it. There are some very high profile examples of that.
I do want to — not to spend too much time on this — push back a little bit on your perspective on Afghanistan. Obviously, right now, Afghanistan is run by an insane government. They have actually talked about changing the legislation in this area. It's on their radar screen somehow, which I find surprising, actually, because they've got a few more important things to look after right now, like their starving population. But that law was passed by a previous Afghan government which was within the constraints of a very difficult country.
I have spent a lot of time working in Afghanistan. It was democratically elected. Their president wanted to have a strong access-to-information law, and he personally pushed it. I worked closely with the Afghan authorities, and their, more or less, democratically elected legislature passed that law. I think they do deserve some credit for that. Of course, implementation is very, very challenging there.
The second country is Mexico, and the law in Mexico is incredibly strong, but the implementation is also excellent. They are doing really well in Mexico, and they are delivering. They are making hard choices about information. They're applying the public interest override in a strong way, taking into account their serious problems with corruption and things like that. They are pushing out information.
I'm going to flip your perspective on thirst for information. I actually think Canadians…. We live in kind of a nice democracy. I'm talking about average citizens here. We are more or less satisfied that our government is okay. We don't actually have that much thirst for information. Those people living in Russia or in Afghanistan or in Mexico or in Bulgaria or whatever, they have suffered under a repressive government, and they really want information, and they really know how important it is. What I see as I travel around the world is that kind of thirst for information.
I've just come from Puerto Rico and, you know, they're in difficult circumstances. I don't know how much you know about the situation there, obviously part of the U.S. I would say people in Puerto Rico also have that kind of higher level of thirst for information.
Obviously, we're much more digitally tuned in. We all have fancy devices and things, and we're tweeting and facebooking and whatever all the time. But I think the heartfelt thirst for information is actually much stronger in developing countries. That is, importantly, why they got to the top of the rating — because their people really want it. Whereas our people are a little ho-hum about it.
T. Shypitka: Just as a follow-up to that, I understand the legal framework may reflect what the right for information could be. But if I'm in Canada and I make multiple requests on how the Premier of our province spends his money, the worst I could expect is perhaps a six-month wait or a year wait or something like that on that information, or maybe a redacted bunch of paperwork.
In Russia, I could probably be facing life in the salt mines or something. The legal framework might be there, but the suppression to the public for the information might be something different from jurisdiction to jurisdiction. That's the only point I was making. Maybe apples and oranges.
T. Mendel: No, no. We fully accept that, obviously, Russia is a dictatorship. It was a dictatorship before it invaded Ukraine as well. I've done a fair bit of work there too. I was there in December of 2019, just before COVID struck.
We're not suggesting that there's an umbilical or linear relationship between performance on the RTI rating and delivery of information to the people. And you do get cases like Russia, where it's a mock-up, as opposed to a real thing.
On the other hand, Russia is a dictatorship. I use that term carefully, and I think it's absolutely fair, and I don't think you can really disagree with that. We've got Putin potentially until 2036 as the leader, and he's been in power essentially since 1999. It's not a democracy.
But for transitional democracies that are struggling, like Afghanistan was, having a strong law in those places very much helps them deliver more information than if they didn't have a strong law.
You're right that in Canada, I think our laws give our officials far too much leeway to do exactly the two things that you've just mentioned — delay unnecessarily and exempt unnecessarily, because our exemptions are not tight and our timelines are not tight. But otherwise, of course, Canadian officials stay within the four corners of the law, which is not the case in some countries. But it is still important to have a strong law.
R. Glumac (Chair): Just a final question. Have you considered or do you have the ability to add a layer on the RTI rating that acknowledges how well the laws are being implemented in that jurisdiction? Is that something that's possible?
T. Mendel: We have, actually, a completely different methodology. It's the RTI evaluation — it's a riff on RTI rating — where we have quite a sophisticated tool for assessing implementation. We launched that in November of 2019, just before COVID struck. We didn't manage to roll out a lot of those.
We are working with a number of different countries, and we've actually just currently got a grant from the government of Canada — our first large grant from the government of Canada, as it happens — to expand the implementation of that. It doesn't rate in the same way, because when you look at implementation, it's a lot less scientific, the assessment. We can pretty precisely assess the legal framework, whereas for implementation, you'd have to look at every single different public body, because they all are doing it differently.
But we do have that, and we're working on that. I would say that with the sustainable development goals which were adopted in 2015 as the UN blueprint for development, one of the indicators under the sustainable development goals is the adoption and implementation of access-to-information legislation.
UNESCO, for example. We've worked quite closely with UNESCO on that. They are working much harder to assess implementation of legislation. So there's a lot going on in that space, including by my organization.
Those applications are quite complex and costly, because assessing implementation is more difficult. But we're slowly rolling that out. You'll see more and more countries appearing on that over time. So yes, we are doing that.
I will mention one other point. We have, on our main CLD website, a Canadian rating. You can go there and see B.C. in second position in Canada. We have added recently to the main RTI rating. We have the country, the national part of it, and we can't put B.C. on that — because, of course, it's not a country — but we have added a subnational section, and we're slowly adding ratings to there.
B.C. will be, in a more visible way, appearing on that, as well as the other Canadian jurisdictions — and all of the other jurisdictions, including Puerto Rico, for example — that we've done ratings for. That's a development that we're working on as well.
R. Glumac (Chair): Okay, great. Well, thank you so much for your presentation and for your work. We'll move on to the next speaker.
T. Mendel: A pleasure. Good luck with your very important task. I look forward to your recommendations.
R. Glumac (Chair): All right. The next presenter today is Jason Woywada from the Freedom of Information and Privacy Association.
Take it away.
FREEDOM OF INFORMATION
AND PRIVACY ASSOCIATION
J. Woywada: Good afternoon. I'm Jason Woywada, executive director for the B.C. Freedom of Information and Privacy Association. I want to start by acknowledging and respecting that I am presenting from the unceded Coast Salish territory of the Lək̓ʷəŋin̓əŋ, amongst the Songhees, Esquimalt and W̱SÁNEĆ peoples, whose historic relationship with the land continues to this day.
BCFIPA is a non-profit advocacy organization that has worked to fulfil its mandate in access-to-information, privacy and whistleblower protection for over 30 years. The organization's work predates both the public access and private sector privacy legislation — FOIPPA and PIPA, respectively. My personal background includes eight years as a broadcast journalist, 14 years working in the Legislative Assembly being part of the drafting team for B.C.'s last FIPPA annual report and starting at FIPA as executive director on the eve of the pandemic.
I want to thank the committee for complying with the legislation and holding these open consultations. Our material is going to apply a pragmatic approach to the situation, framing both problems and possible solutions. While we're making a verbal presentation and submitting a summary document, a more extensive written document will be available prior to the deadline.
As documented by the OIPC, Bill 22 moved much of the government's transparency legislation to a regulatory and policy process that is determined behind closed doors, in secret, by the minister. While this committee is tasked to review the legislation, the regulations and policies that are enacted pursuant to the act do need to be considered. As such, some of our identified problems and solutions require changes in regulation or policy that result from the legislation.
To begin, we are, of course, disappointed that the government only enabled the work of this committee after introducing and ramming Bill 22 through the Legislature, compressing a year's worth of work into a few months. While problematic, this is also a symptom of an ongoing problem: ministerial actions relating to this act routinely disregard the Legislature and the requirements under the act.
Not only did Bill 22 undermine the work of the Special Committee to Review the Freedom of Information and Protection of Privacy Act by introducing changes while the committee was to conduct open consultation and make recommendations on the existing legislation; the bill did not address many key recommendations from prior committees.
Additionally, the minister fails to comply with the act. The most obvious example is disregarding the need to table an annual report annually. In so doing, the minister reduces the transparency of the transparency legislation. An annual report, as required by section 68, has not been tabled for either 2019-2020 or 2020-2021 — this despite the fact that the minister has tabled other annual reports from her ministry.
The solutions this committee could consider include recognizing that the Bill 22 process short-circuited and undermined the work of the committee; that the committee call for mechanisms requiring the government to report on its actions and to enact the recommendations of this committee at regular intervals; that an annual report under section 68 should be tabled annually, rather than at some arbitrary later date; and that — to recognize the importance of this reporting about transparency to transparency — the failure to table an annual report within a year of the end of a fiscal year should result in ministerial wages being impacted.
The next issue is the lack of duty to document. The Information Management Act is not fit for purpose, as identified from multiple sources, including the OIPC, and doesn't reflect the recommendations of prior committees. It lacks oversight and does not apply to many public bodies captured under FIPPA.
For example, the Information Management Act does not apply to municipalities and local public bodies. The combined result is that there are minimal legal requirements for employees of many public bodies to keep records of important government business decisions. The solution this committee could consider is repeating its call for a legislative duty to document within FIPPA, with oversight from the OIPC.
The third issue is an FOI system that treats public information as a secret to be withheld from the public. Successive governments failed to resolve this issue because the system perpetuates a culture of secrecy. There is training on FIPPA for government employees. It has wildly different uptake from various departments. It emphasizes the risk of releasing information, rather than the benefit of releasing the information in the public interest.
The result is that redaction and secrecy become the default response to all requests for information. It incentivizes the bureaucracy to drive up the number of FOI requests by forcing every request for information into the FOI system. This has been aggravated by under-resourcing of the information access office, privacy teams and the OIPC, leading to delays and overapplication of redactions.
The solutions this committee could consider include calling for a change-management program to shift government culture. Because tone is set from the top, policy changes need to shift the culture away from secrecy by default, and departments should develop, release and implement plans to improve transparency, with leaders performing duties as transparency-change champions.
To increase government transparency about its transparency, the contents of the section 68 government annual report should be defined by this committee and the OIPC. It should provide, monitor and report on FIPPA training to provincial government employees, broken down by ministry, for example. Lastly, resources for IIO, privacy teams and the OIPC should increase, both to reflect the need and to address the backlog leading to delays.
Point 4 is the controversial issue regarding application fees for filing FOI requests. The Ministry of Citizens' Services stated that the purpose of the fee was to reduce the number of requests to clear the backlog. Despite anything the minister says, the department's express purpose is to discourage FOI requests with the new fee. With this precedent — an example set by the provincial government, creating social licence to discourage requests for public information — a similar fee has already been implemented by the municipality of Surrey, and more will inevitably follow.
This application fee functions as a regressive transparency tax that disproportionately affects students, smaller media outlets and marginalized groups. The solutions this committee could consider include recommending changes to remove application fees from regulations. Failing this, recommending a means-based test should be developed to waive fees for FOI requests.
The specific wording of the test should capture requests in the public interest and entities that cannot afford it, and there should be a list of organizations that are automatically exempted. That could include political parties, non-profits, student researchers and press organizations. This test should not lead to additional delays in processing requests.
The fifth issue is with the scope of FIPPA. Some corporations and agencies created by public bodies are not, themselves, subject to FIPPA. The government failed to act on its own promise with an all-party agreement to include the offices of the Legislative Assembly under the scope of FIPPA. There are a large and growing number of statutes that have overrides to FIPPA. The combined effect is that there are accountability gaps that undermine the information rights of British Columbians.
The solutions this committee could consider include amending FIPPA's scope to automatically include all organizations delivering public services or carrying out the function of a public body. To avoid a repeat of legislative wood splitters, the all-party promise of transparency in the Legislative Assembly should be acted upon and include acting on the joint recommendations of the Merit Commissioner, Ombudsperson and OIPC.
Additionally, recognizing the quasi-constitutional nature of transparency law, overrides of FIPPA should be rare, well documented, reviewed on a set schedule and fully and publicly justified.
At No. 6, due to the earlier mentioned culture of secrecy by default, exceptions to releasing of information are overapplied, triggering complaints and review processes, leading to a backlog and friction in the FOI system. An example is the mandatory exemption for cabinet and local public body confidences, section 12, that prevents a disclosure of records, even when there is a strong public interest for release.
Another example is the policy advice and recommendations exception, section 13, that has been expanded over time to prevent the disclosure of too many records. Even the courts have broadened the interpretation of sections 12 and 13, and as a result, more records are routinely captured and withheld from public release. The amount of information withheld due to these exceptions is increasing, and that decreases government transparency.
The solutions this committee could consider include encouraging a policy change to improve and shift to a culture of transparency, recognizing that if the number of documents subject to cabinet and local public body confidence continues to increase at the current rate — I think they'll get overloaded by the weight of the paper, first off — this exception needs to be made discretionary so that the cabinet records can be released if public interest outweighs the prejudicial effect of the disclosure.
The categories of information that must be released upon request under section 13(2) should be reviewed to ensure that the list is comprehensive enough to facilitate transparency with clear guidelines provided on what constitutes factual, investigative or background material within the meaning of the act, and that public bodies, recognizing the category of records exempt from exemption under section 13(2), shall proactively release those records and information.
The next big problem is the perpetuation of the colonial mentality evidenced in sections 13 and 18(1) of FIPPA. These sections enable government to apply an exemption and withhold information on behalf of Indigenous peoples without consulting Indigenous peoples. This fails to meet the duty to consult under UNDRIP and DRIPA. The letter sent to this government from the Union of B.C. Indian Chiefs last fall during Bill 22 deliberation highlighted this oversight, as did their presentation earlier today.
The solutions this committee could consider include amendments to ensure that in accordance with UNDRIP and section 3 of DRIPA, the government must consult with Indigenous peoples on ways to improve their access to information and privacy and explore ways to support Indigenous peoples access to information and historical records that are relevant to decolonization, held by government and non-governmental bodies such as churches, that remain sealed or inaccessible. One example includes making the discretionary notification provisions under subsection 23(2) of the act mandatory for Indigenous peoples' records.
Next, access delayed is access denied. As reported by the OIPC, the government routinely takes too long for records to be released. Public bodies regularly claim extensions under section 10 and routinely seek consent for added deadline extensions. This is a departure from extensions as sought in limited and exceptional circumstances.
The solutions this committee could consider include recommending that government act on the recommendations found in the special report Now Is the Time, from the OIPC. For emphasis, I would like to highlight the following recommendations, including: providing clarity around the use of extensions by public bodies and on when a public body can ask for or request consent to extend deadlines; disclosure of records more promptly; examining options for automating FOI processes; automatically triggering proactive disclosure; and streamlining sign-off processes. Furthermore, bodies that create unjustified delays, including deemed refusals, should be held accountable under section 65(6).
The ninth issue is regarding section 71, proactive disclosure. There are many categories of records, routinely requested and released, that are not captured by existing proactive disclosure plans. This results in some groups being forced to repeatedly submit the same requests. This inefficiency contributes to backlogs in the FOI system.
The solutions this committee could consider include re-emphasizing that the government implement the recommendations of the OIPC regarding proactive disclosure as well as requiring OIPC oversight of records that are routinely requested and released — to identify and publicly recommend that key categories of records should be made available through proactive disclosure.
Wrapping up with the last point, Bill 22 removed data residency requirements, leading to an increase in risk to the personal information of British Columbians. Undoubtably, with their deeper pockets and appropriate resource allocation, large public bodies will be able to maintain a high degree of security and data breach response in this new scenario.
However, mal actors can target, and are targeting, smaller public bodies as easily as large public bodies for valuable personal information. Those risks are bound to increase over time. The government must not set smaller public bodies up for failure and merely download the risk to the local level without correspondingly increased resources and support there.
To avoid government solutions being worse than the problem, they need to be actionable — from ministries, with extensive departmental staff, to the local water district or drop-in health clinic, with volunteer workers. The solutions this committee could consider include requiring that regulations and guidance need to be scalable from the provincial level to the smaller, local public body and built on a comprehensive, open consultation with public bodies outside of the provincial government.
In conclusion, there are well-documented and -researched intersections between transparency and trusting government. We can point to multiple studies over time documenting the correlating reduction in trust of public bodies with a corresponding perceived and/or real reduction in transparency. When a scandal occurs, there's also a defensive reaction to blame the legislation that enabled the release of information rather than the wrongdoing of the scandal itself.
The onus is currently on the public to come on bended knee to gain access to public information, empowering the government to redact and withhold information because of the risk of release. There are other ways of addressing this that reverse that dynamic, forcing the government to proactively release all records and documents that they don't release. Even in these scenarios, the tone from the top and the culture impact effectiveness under the act. We see it as the root cause underlying the act's current ineffectiveness.
I want to thank the committee for the opportunity to present today, and I'm open to any questions you may have.
R. Glumac (Chair): Excellent. There's a lot of information there for sure.
J. Woywada: Sorry about the overload there. It'll all be in writing as well.
R. Glumac (Chair): We definitely appreciate that.
H. Yao: This is a quick comment. To be honest with you, it feels like you literally summarized the majority of our presenters today or yesterday for us. I wanted to take a moment to thank you for the presentation. I'm really looking forward to your written material.
R. Glumac (Chair): Yes, thank you for the work that you've put into this. We really appreciate it. We have one final question.
A. Olsen: Not a question, just another acknowledgment of the density of your presentation. I'll have to sit with it, because frankly, you were moving very, very quickly. To the comments that Henry just made, it certainly did cover a lot of the ground that we've heard very consistently from the presenters to this committee. I appreciate you taking the time — and the work that you do on behalf of information and privacy in the province.
J. Woywada: Could I just make one comment very quickly, if there are no questions that are coming forward? I'm incredibly encouraged by the work of this committee and this structure to review legislation at regular intervals and the importance of that, because I don't see this in a lot of other provinces when we do our interprovincial scans. That's a really important factor — that these members are working together to reach a joint consensus recommendation.
The unfortunate result of Bill 22 is that some people were discouraged from coming forward and making a presentation here.
[J. Rustad in the chair.]
There were, actively, people discouraging other groups from making a presentation because they didn't feel that this would be a worthwhile process. We're here because we're eternal optimists that this will get better, and here's hoping that the recommendations reflect something that improves the act, despite the recent changes.
S. Chant: One of the comments that you made was about the FIPPA training that emphasized the risk of releasing information rather than the benefit of releasing information.
To back that bus up a little bit further: of people who are responsible for FIPPA, how many of them do you think get adequate training, as a guess?
J. Woywada: I think it depends on how you define "adequate training." A 20-minute web module — does that provide adequate training? I think there has to be a review, by the OIPC, of what would constitute adequate training for the administration of the act.
The concern we have — again yesterday, in talking to some of the people that were making requests — is that there's an IAO officer that's working in conjunction with a risk analyst. There's this inherent tie between a request for information and the risk, rather than to the public interest. That leads to a real conflict of interest there in what's being served, because if every request is treated as a risk, you're not going to release anything — or you'll release very minimal information.
S. Chant: This is what I think we are hearing from many of the people that are submitting to us — that they're not getting a whole heck of a lot sometimes.
J. Woywada: I know that one of the questions that has come up is on other jurisdictions and possible examples. New South Wales, running into the same scenario as British Columbia, tore out its FIPPA legislation and moved to government information and public access legislation. It's one example of a different system, but again, based on discussions we've had with practitioners there, the tone from the top is still the dominant factor that influences how well access is governed.
S. Chant: Thank you for the presentation.
J. Rustad (Deputy Chair): Thank you for that. I'd just look for any other questions. I have one question as well. Rick had to leave, so I've stepped in to chair the remainder of the committee.
You talked a little bit about duty to document. One of the challenges that I have seen over the years is the tendency to move towards more oral engagement. Often you'll see freedom-of-information requests come back with no records found. I'm just wondering how you actually implement a duty to document when much of the work that can be done or may be done is done orally.
J. Woywada: It's a very real issue. Oral government is a concern. Again, part of the dynamic in terms of training is advising people, as we've seen in other jurisdictions — I can't speak to the personal training here in some of these areas — that they should always bear in mind that what they put down on paper may be requested through FOI. It leads to people putting less things on paper.
When that is the governing framework and the message that is carried forward from the leadership, the result is more oral government and less elements being able to be captured by FOI. That doesn't fulfil the duty to document.
Even with the new penalties that have apparently come in, those are only going to be triggered after a request is made. That doesn't address the issue either. You're still going to have the opportunity for people that are acting in bad faith to delete that information prior to the request coming forward or just not creating it.
I don't know how you get around oral government decisions other than requiring that government decisions — debriefing notes, the information notes, the SWOT analysis, the GBA+ analysis — need to be provided so that people can review them.
J. Rustad (Deputy Chair): All right, Jason. Thank you very much for taking the time to present. You did present a lot of information, and we really appreciate that.
Just as we're waiting for our next presenter…. He's just a couple of minutes away, so we'll just take a brief, two-minute recess.
The committee recessed from 2:52 p.m. to 3 p.m.
[J. Rustad in the chair.]
J. Rustad (Deputy Chair): We have Stanley Tromp, who has generously gone to the end of the day here. I'm glad we've solved the technical issues.
It's over to you, Stanley.
S. Tromp: Thank you. Well, good day from Vancouver. I am pleased and honoured to be invited here today to speak in these challenging times. In spite of all the turmoil surrounding Bill 22, here we are, and it is good to be here.
Apart from some skeptics, I still regard this committee's work as very relevant, and I only hope the Premier and cabinet will seriously consider this testimony. I speak quite briskly, because there's so much to say and so little time. Let me just note that I am speaking personally and not on behalf of any organization.
Freedom-of-information and privacy law is one of the most important and interesting subjects you will ever consider, as it concerns the health of our democracy and the citizens' relationship to the state. This year, my new list of 135 recommendations, which was pared down from my first draft of 200 items, is attached to this report and posted at my FOI website at www.canadafoi.ca. If you are pressed for time, at the top of the report, I have printed a list of the 15 most vital recommendations, plus a one-page executive summary.
I recall speaking to the original version of this committee in 1998, reviewing this law as chaired by another Rick — that is, MLA Rick Kasper. Here is a copy of its report. Then I addressed one in 2004, then 2010, then 2016 and now the fifth such review today. It seems I am the only member of this five-timers club.
Then I was thrown off track by the NDP's surprise introduction last October of its Bill 22, the B.C. Freedom of Information and Protection of Privacy Amendment Act. This new assault on our access rights compelled me to change focus. Any such drastic changes to the FOI act should have been first submitted to this committee, so it could hear testimony and forward its recommendations. Moreover, whereas previously, committees had a year or two to study the issue, this one must report by this June 15. That is about five months of study.
Because of the higher than usual level of public interest due to Bill 22, it seems as though the members have been told to manage more work in half the time. This is deplorably unfair to all.
This bill has been widely discussed by many others at length, so I will just outline its main points here. On October 18, the bill was announced in the so-called B.C. Government News in Orwellian doublespeak: "Amendments strengthen access to information, protect people's privacy."
In reality, this bill was by far the boldest assault on the public's right to know and its privacy rights ever seen in this province, cynically trashing the fine legacy of NDP Premier Mike Harcourt, who passed the act in 1992. The Horgan administration had created an arbitrary, needless and wholly self-inflicted political nightmare, one that lingers today.
It's first feature was to newly permit agencies to charge people an application fee for filing requests, later set in regulation at $10. The launch of Bill 22 initiated a five-week, full-time, frantic and innervating struggle to halt its passage. If advocates had not done this, I am absolutely sure that the application fee would be set at $25 today.
It also seemed quite strange how the NDP could so disregard its traditional allies, such as unionists, Aboriginals, the working poor and environmentalists. Many found the NDP's legislative process just as objectionable or worse than Bill 22's contents — a kind of double blow to democracy.
After debate was closed down, it was thrust into law on November 25. Yet I believe its passage was a hollow, pyrrhic victory, with the resulting loss of public trust far outweighing any political gain. Then in February, Premier Horgan's government received the non-coveted 2021 Code of Silence provincial award for outstanding achievement in government secrecy from the Canadian Journalists for Free Expression.
The NDP may have calculated that if unpopular acts are done in the first year of such a large majority term, the public is likely to forget these when the next election occurs in three years. If so, this gamble was likely misjudged, for the public will be living with and reminded of the impacts of this bill continuously. Many citizens, some self-described as former NDP supporters, wrote to the Premier to protest these moves. You can read their comments in appendix 6.
For example, one writer said: "We understand it is a pain for the ruling party to have to explain their actions of the past, but this is what democracy is all about. This will not be forgotten in a couple of weeks, which seems to be what the government hopes for. This change to FOI will haunt you in the next election. When the NDP are back in opposition, which will eventually happen, you will be kicking yourselves."
A few quick points on Bill 22. First, the changes to sections 46 and 27 must be repealed. The government proudly states that section 46 of Bill 22 newly provides that the minister may add exempt entities to FOI coverage, if he or she "determines that it would be in the public interest." But there is, of course, a world of difference in law between "may" and "must." In fact, if the minister ever chooses to apply FOI coverage to the $500 million InBC Investment Corp., where it is most urgently needed, this action would be surprising but always welcome.
This wholly discretionary new section, which contains no criteria, was likely designed to create the illusion of solving this ancillary problem without actually doing so and, thus, push it off the public's radar. If that is the case, then the actual effect of section 46 is to be worse than useless.
Section 27 allows officials to ask the commissioner's permission to disregard an FOI request if it "is excessively broad, or is repetitious or systematic." It is a most dangerous fallacy to suggest that all such requests are without public merit and therefore should be barred. A journalist might send quarterly requests to a city council for minutes of its in-camera meetings or to a health authority for its internal audits. These requests are repetitious and systematic, indeed, but they also vitally serve the public interest, and they are obviously not frivolous or vexatious.
We also need to ask: what is the rationale for newly excluding metadata in section 3.3?
Now, consider the application fee. This is, of course, a disaster for the public interest. Indeed, in the rest of the FOI world, application fees are extremely rare, for it is perceived as undemocratic.
Upfront fees are not charged in American states. Ireland implemented one such fee at €15, about $22 Canadian, only after a tough dogfight but then dropped it in 2014. Parliamentarian Stephen Donnelly said that fees reinforced the notion that FOI is a luxury, but it's actually a right. He added: "The minister deserves credit for taking this decision, which hopefully moves us toward greater…transparency."
Some have floated the idea of letting applicants file a certain number of requests cost-free as before but then charging an application fee for requests above that threshold number. The fee itself should be capped at $5, the same figure set for the federal Access to Information Act for the past 40 years.
I would not oppose this innovation in principle and would recommend considering it. When asked about this, Premier Horgan said: "I like the idea of 'your tenth coffee is free' card. That sounds like a good idea."
While I'm not aware of any jurisdiction in the world that employs this request fee threshold solution, there is indeed a first time for everything. Does this concept not seem more fair than indiscriminately charging the same application fee for all requests, for all applicants, commercial and non-commercial alike, across the board?
A legislative review of an FOI law may appear to some readers very remote from their practical daily concerns. Why, in fact, should they care if we have an effective statute? It's a fair question. I believe claims about FOI need to be demonstrated rather than just asserted. As a kind of answer, I spent the year full-time in collecting items for my B.C. FOI news story index. This XL database contains my 100-word summaries of 2,000 B.C. news stories — that is, every significant one I could find — that was produced from records obtained through FOI ever since that fine day the law took effect on October 1, 1993.
The topics of the 24 categories are diverse, including health, safety, government waste, public security and environmental risks. The search was extensive, through mainstream newspapers, radio and TV as well as small rural newspapers, student alternative and online media. The index is posted on my website.
Every British Columbian who browses this database will find it time well spent, I guarantee. And it was also designed to provide story ideas for journalism students.
Moreover, if our FOI laws were raised to global standards, this index list would have been twice as long. These articles require a second look, for when they appear in a daily newspaper, they may be forgotten within days, but many should not be because we could be living continuously with the unresolved problems they have raised. This database is necessary because politicians and bureaucrats routinely and cynically try to deride the FOI law's value and belittle its users as being mostly frivolous or mischievous.
Such requests might indeed occur, but at the same time, such critics always remain silent upon the many vital revelations on wasteful spending, health risks and other public harms, which were only made possible through FOI.
This was surely the goal of Premier Mike Harcourt, who told a journalism awards dinner in 1993: "We passed an FOI law so you folks could do more stories."
On occasion, we need to view the human face on abstract legal questions, as we can here. The range of FOI topics is vast, covering the whole spectrum of B.C. society, from the cabinet office to Vancouver's Downtown Eastside, from farms to coal mines, from nursing homes to logging roads. Most powerful are the sections on the troubling mistreatment of children, seniors and animals.
The old adage of journalism's mission being "to afflict the comfortable and comfort the afflicted" has been well realized here, with news that can bring some degree of justice to the powerless and a voice to the voiceless. This is what FOI is all about. The stories also belie the most self-serving and pernicious myth of all: "What the people don't know won't hurt them."
As well, sometimes to enhance the story, the media posts the original records on their website. Chad Skelton of the Vancouver Sun laudably constructed searchable databases for the public on government salaries and nursing home and daycare inspections. These are most useful for readers preparing to place their children and elders in these institutions.
The most common theme that emerges from these stories is the hidden misuse of power. Its exposure by FOI is usually, but not always, followed by justice, restitution and improvements. On governmental failings, it has been well said: "Sunlight is the best disinfectant."
Beyond the FOI uses by opposition parties and the news media, we need to focus primarily on the average B.C. citizen, on whose behalf the FOI law was supposedly passed. These can least afford the application fees of Bill 22 and would be most harmed by that and its other clauses, for these are the innocent people caught in the eternal political crossfire between the ruling party and the opposition.
Premier Horgan claimed that "there will be no fee for individuals looking for information." That is false. The only exemption is for people requesting information about themselves. Those individuals seeking non-personal information would be subject to an application fee.
In my news story index, there are 70 stories in category 6 concerning the records obtained directly by citizens. This affirms that FOI is not solely within the purview of experts. Because these stories are based only on records that these citizens chose to share with the media, there are likely many examples we never hear about.
We should not accept that records are the private property of the ruling party of the day, to be hoarded and manipulated for its own political advantage. The public paid for its production, so it is the public's property.
The largest category of the news index, with 172 articles, concerns taxpayers' money. Examples abound of staggering losses publicized via FOI requests. For example, the B.C. government could have sold ailing forest company Skeena Cellulose Inc. back to the private sector in 1999 for 16 times what it eventually got for it after spending an extra $100 million to prop it up. The total debt of the tourism agency expanding the Vancouver Convention Centre ballooned to $108 million in 2013.
Let us also recall the granddaddy of all white elephants. In the 1990s, under NDP Premier Glen Clark, it took $450 million — that is, $700 million in 2022 dollars — to build three ships in the troubled fast ferry fleet, but they were later sold off for just $19 million. On the last example, the subsidiary company that built the fast ferries was excluded from the FOI Act coverage. So too is the NDP's new $500 million InBC Investment Corp. Can we do nothing else but pray that the latter entity might not incur losses anywhere comparable to the former?
I also created a file of 30 articles, posted in appendix 1, based on citizens filing general requests for their community's benefit, somewhat beyond their own personal interests, yet now we will likely see fewer of these stories. Whose interest is served by this? To the Premier and cabinet ministers who together sprung Bill 22 on the unsuspecting public, we could inquire: "Which one of these stories in the index might your FOI constituents be better off not knowing about — any or all?"
For example, could it be one, the engineering reports that came via FOI by the South Park parent advisory council safety committee that showed the risk of some Victoria schools collapsing in even moderate quakes? Or could it be two, the 2020 report Chronic Lyme Disease in British Columbia from the Provincial Health Services Authority, laying out the nature of the disease and giving recommendations, obtained and distributed by two Lyme disease sufferers? These were based on FOI requests that were filed not by journalists but by individuals or their family members, often in some form of distress.
Working to improve their lives, these FOI applicants obtained records that helped some to clear their names of false allegations, aided adoptees to find their true parents or enabled others to obtain redress for their workplace injuries, childhood abuse, police beatings, botched surgeries, hepatitis C infections, unsafe roads, land flooding, house fires, military accidents, privacy invasions, schoolyard bullying, land appropriations and rental evictions. Will their voices be heeded?
To promote Bill 22 during a press conference, Premier Horgan flamboyantly pulled his iPhone out and displayed game apps upon it, while railing against what he said were ridiculous FOI requests by the opposition Liberals to view screenshots of his and others' electronic devices. "I mean, get real. I think the vast majority of British Columbians could care less." That last point is likely true, and yet none of these citizen requesters ever asked to see screenshots of the Premier's cell phone, and neither did I. Why should they and others be penalized for the very few partisan requesters that did so?
Moreover, to the Premier and cabinet members, I would say: if you indeed wish for everyone to "get real," please explain why the B.C. NDP, the self-proclaimed champion of the poor and disempowered, has imposed a fee without consultation, at first planned at $25, for the exercise of a basic democratic right, upon those who can least afford it, to view records they already own?
These constituents elected you to serve them and pay your salaries. They may be excused for wondering: who can we trust? Indeed, all the foregoing raises the inevitable question for government MLAs: why are you there?
FOI advocates in India have adopted the slogan "The right to know is the right to live." They invoked the term in the broad human rights sense, but it later occurred to me that it could be invoked in a literal manner as well.
In response to FOI requests, the B.C. media have reported that, one, B.C. Coroners Service statistics, obtained through FOI by Bob Mackin, say that at least 54 people have died on SkyTrain tracks since 1985, yet there is no plan to retrofit any SkyTrain platforms with barriers to stop people from falling from them. Two, I reported that many B.C. doctors are not reporting on the children they immunize and children could be at risk of "an outbreak of vaccine-preventable diseases" if immunization rates drop too low because of health workers who disparage vaccinations to parents. So said an audit by the comptroller general.
Now these records will be harder to obtain. In fact, after these articles appeared, officials deplorably started withholding some such comptroller general audits as so-called advice to cabinet as per the law of section 12. The cases above also belie the most pernicious myth of all: what the people don't know won't hurt them. The costing debate could then shift from "Can we afford to have an FOI law?" to "Can we afford not to?"
We also face a new urgency for B.C. health transparency. Bill 22 could not have been worse timed, sprung without warning in October 2021 at about the same time as the super-contagious omicron variant of COVID-19 arose. It was launched when the public desperately needed more information on health issues, not less.
There are many examples of public fears and ire being needlessly raised by excessive COVID-19 secrecy. One, Gary Mason, in the Globe and Mail, noted that British Columbians have looked on with envy at the amount of pandemic-related data being shared with Canadians living elsewhere. "The fact is Dr. Henry and the government have been very paternalistic when it's come to sharing more specific COVID-related data with the public." Two, just how many British Columbians are actually in hospital with COVID is a tightly held secret, with few privy to the true number as health officials keep two sets of numbers: one public, the other internal. Three, two internal reports leaked from the B.C. Centre for Disease Control showed the government has been assembling far more information about the COVID outbreak than it has made public.
Beyond COVID-19, the B.C. FOI act has always been essential to inform the public of myriad good-health risks and needed improvements. For instance, a heat dome claimed the lives of 569 people in B.C. in June 2021. Last October the Liberals released a tranche of emails, obtained under FOI, that revealed that senior executives at the province's drastically under-resourced 911 dispatch centre had tried to ring the alarm over pandemic shortages ahead of the heat dome without success.
Let us now switch gears to discuss the three most urgent problems to be solved in our FOI law, which the NDP promised to fix in 2017 but never did. FOI black hole No. 1 is the adverse trend toward oral government. This occurs when government officials do not create or preserve records of the decisions on policy development because they do not wish such records to be ever made public through the FOI process.
The Information Management Act passed by the NDP in 2019 does not create a true duty to document government actions and decisions despite its voluble claims. It merely gives the chief information officer the discretion to bring in directives and guidelines on the creation of adequate records. Yet while in opposition in 2016, NDP MLA Doug Routley's private member's bill M207 stated: "Every public body and service provider must create and maintain full and accurate records of government information."
In 2003, startling comments by B.C. deputy minister Ken Dobell to an FOI conference confirmed one's worst suspicions. Dobell says that he ran the government via informal meetings or telephone conversations, seldom keeping working notes of either. He did make a thorough use of emails, but he said that he deleted those "all the time as fast, as I can. I don't put stuff on paper that I would have 15 years ago.
The fallout is that a lot of history is not being written down. Archivists of tomorrow will look for those kinds of things, and none of it will be there. It will change our view of history." Indeed.
To this point, in 2007, I discovered that the B.C. 2010 Olympic Winter Games Secretariat had simply stopped recording minutes of its meetings after being annoyed by my FOI requests for these. This new practice was publicly defended by the Economic Development Minister, so in effect, he green-lighted it across the public service.
In 1997, federal information commissioner John Grace issued a sharp rebuke to the oral government concept: "As to the 'don't-write-it-down school,' any effort to run government without creating records would be humorous if it were not so dangerously juvenile. Left without written precedents and decisions, other officials are deprived of the benefit of their predecessor's wisdom or folly. The misguided effort to avoid scrutiny by not making records is driven by ignorance of the law's broad exemptive provisions."
This last point is crucial. The solution to such ignorance is to start an education program for all B.C. public servants about how the FOI exemptions work, exactly what information can be legally withheld and why the FOI law need not be so feared.
Way back in 1950, the United States enacted the Federal Records Act, which states that the head of each agency shall cause to be made records on the agency's decisions, procedures and essential transactions so as to protect both the government and persons directly affected by the agency's activities.
We need to stop email back channels and other new digital routes being used to evade the FOI law. We also require a much better definition of what a so-called "transitory record" is so this term cannot be abused.
FOI black hole No. 2 is the law's section 13, policy advice, which I call the bureaucratic interest override. This is the most widely misapplied section. It creates a wide swath of secrecy for policy "advice or recommendations developed by or for a public body or a minister."
The B.C. Court of Appeal set a dangerous precedent in 2002, when it ruled on the so-called Dr. Doe case of the B.C. College of Physicians and Surgeons regarding reports on a patient who claimed she had been hypnotized and abused by her doctor. The court held that section 13 of the law was not limited to recommendations. Instead, the investigation, a gathering of facts, could be exempted from access under the section, regardless of whether or not any course of action was actually recommended.
Then in a bold power grab, B.C. officials and Crown lawyers grotesquely overextended this one flawed ruling on a private hypnotism dispute to newly sealed background facts and public policy advice across all government, upon any topic they chose — health, education, finance, etc. Here the bureaucracy pulled off a legal coup with arcane, ingenious arguments that the bare facts somewhat implicitly indicate a policy direction, and the two are intertwined.
This ruling was a gift to officials, but it created immeasurable havoc for B.C. FOI applicants over the past 20 years, as hundreds, if not thousands, of the pages in the public interest have been newly sealed. For instance, when I applied for records on the human health impacts of LNG, the Natural Gas Development Ministry invoked section 13 to blank out about 100 pages of facts.
Former NDP Attorney General Colin Gabelmann, when he introduced the act in 1992, protested in a speech: "There has been an incredibly astonishingly perversion in the past few years of the plain-language meaning of the words 'advice' and 'recommendations.' This has resulted in the reversal of the legislation's intent, as originally expressed in the legislation."
Another strong objection came from Murray Rankin, who delivered a keynote speech to FIPA's Information Summit on September 29, 2006, which rebutted the Dr. Doe ruling's legal errors point by point. Mr. Rankin said:
"I'm particularly concerned about the B.C. Court of Appeal's decision. The policy advice or recommendations exemption in the act was, in my view, extended remarkably and too far. It is now up to the government to ask the Legislature to change the act and restore the original intention of the legislation, and I hope the opposition will be watching — I know all of us will — to ensure that government does not listen to its officials and try to duck this one."
The NDP wrote to FIPA in 2017: "We support the commissioner's advice…that the meaning of this section should be restored to its original, pre–B.C. Liberal, intent." This pledge was broken.
Rob Botterell, the public servant who developed the FOI Act, told your committee in 2015 that in practice in B.C., discretionary exemptions, like section 13 "effectively have been converted into mandatory exemptions." So it is as though the term "may withhold" is now being routinely misread by officials as "must withhold."
Deeply worrisome is a comment from Premier Horgan in 2011. The Vancouver Sun reported: "Horgan wrote that he supported some changes to the act, such as making university spin-off companies subject to FOI requests. But he was less enthusiastic about reforming the act's policy advice exemption, saying it had stood the test of time." I would counter that bad practices are never legitimized merely by time passage.
The act must be amended to clarify that section 13 cannot be applied for facts and analysis, only for genuine advice.
The section also needs a harms test, wherein a policy advice record can be withheld only if disclosing it would cause serious or significant harm to the deliberative process. Most countries have this.
FOI black hole No. 3 regards subsidiary companies. Public bodies such as UBC and B.C. Hydro have been creating wholly-owned and controlled puppet subsidiary companies that perform many of their functions and manage billions of dollars in taxpayers' money. Yet they falsely claim these companies are not covered by FOI laws because they are private and independent, a situation that people call information laundering.
Murray Rankin warned about this in his speech of 2006: "Consider privatization, the P3 phenomenon and outsourcing. This has had a devastating impact, and some feel it's with respect to one's ability to examine records which were previously public in nature."
The act needs an amendment to state that its coverage must extend to any institution that is controlled by a public body or performs a statutory function or is vested with public powers or has a majority of its board members appointed by it or is 50 percent or more publicly funded or is 50 percent or more publicly owned.
Please consider this — that companies owned by a B.C. Crown corporation 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' $450 million fast ferries lost to its subsidiary, Catamaran Ferries International.
Many such entities are monopolies in their field, so they need not fear competition. But even if they are not monopolies, it does not matter, because they are already fully protected from competitive harm in the FOI law in sections 17 and 21.
Why does such coverage matter? Let us make this abstract issue a more concrete one. For example, in 2011, an audit I obtained from the Finance Ministry through FOI formed the basis of a cover story I wrote for the now-defunct Vancouver Courier. It revealed that Vancouver Community College had hired building management company KD Engineering for 31 years without a bidding process, paid it over $1 million a year and stood by as many safety violations occurred, such as major fire hazards, potential carbon monoxide poisoning and natural gas leaks.
It concluded: "No effective oversight of this contractor's performance, leading to significant non-compliance with life and safety laws." In sum, the health and safety of 25,000 students and children in the VCC daycare may have been placed at risk for years with potentially tragic results.
Now, UBC Properties Investments manages student residential buildings. What if this company had commissioned a consultant's report that found that its residential buildings had similar fire hazard or chemical fumes, as VCC did? The UBC residents could not obtain that report under FOI, and they would never know. It would stay buried in the vaults forever, because the UBC company claims it is exempt from the law. This is a gap which no other nation with an FOI law would accept.
Officials warn about the so-called risks of FOI subsidiary companies coverage. Yet we could just as well turn this logic around, as in the case above, and ask: what then about the risks of non-coverage? Keeping the public in the dark as they do is a risk also, but on balance, it is a far greater risk than any imaginary or minor commercial harms to these companies, which most likely would not occur anyways because of sections 17 and 21.
B.C. legislators in 1992 knew that the calculation of supposed harms for FOI releases is never an exact science. How could it be? There will always be a speculative aspect to it, and yet the choices must be made. We need to overcome the common Canadian political fallacy on FOI law reform, shown in its ultimate form on the subsidiary question: "We should not do anything until we first know everything." Such an all-or-nothing bottleneck has been utilized as an excuse for inaction on this topic for three decades. We should instead counter with: "Do not let the pursuit of perfection impede you from doing whatever good you can now."
By this, I mean that none of the studies should forestall the immediate addition of the most obvious, indisputable cases, such as InBC Investment and the two FOI-excluded health authorities at a minimum. With a bit of political will, these can be added to the act's schedule 2 any day, as Bill 22 did with the two police associations. Reform in B.C. is surely possible on this. For example, after B.C. Ferries was privatized in 2003, its FOI coverage was dropped, but after years of Ferries' hard campaigning against it, the coverage was restored by the Legislature.
By now, I have come to rather appreciate the bureaucrat's lament of the so-called structural complexity of the entity coverage issue. Yet I would counter their plea if it is mainly used as an excuse for internal inaction, which it has been.
I suggest that a new stand-alone panel be tasked to study and recommend on the scope of FOI coverage for entities, because this review committee can only scratch the surface of it, for it is tasked to deal with so many other issues at once.
Let us consider one more example of the risks of not fixing our FOI law. In 1997, in the days when the FOI Act still worked well, Stewart Bell of the Vancouver Sun reported that pimps, rapists and other convicts had been cleared to work with children by the B.C. government's $1 million criminal records screening panel. It had deemed that 127 people with records for serious sexual offences and/or violent crimes to be "no risk."
Some of these had criminal records for sexual assault, living off the avails of child prostitution, drug trafficking and kidnapping. This story was based on data obtained by FOI from the Attorney General's ministry. The next day, NDP Attorney General Ujjal Dosanjh appointed former UBC law dean Lynn Smith to fully investigate this records program.
We need to imagine the real-life consequences if the information above had never been released and this shocking story not told. Yet with the erosion of our FOI law since then, some such data on criminal record screening might easily be withheld today. How so?
First, by oral government, whereby government officials do not create or preserve records of their decisions or policy development, conceivably on this criminal records issue. Second, under the FOI law, section 13, after the Dr. Doe ruling, facts and analysis can now be withheld, potentially on the topic above. Third, if any data on criminal records were held in entities such as the First Nations Health Authority or Providence Health Care, the data would remain sealed because these entities are excluded from any FOI law.
Fourth, consider the potential outcomes of Bill 22. The government can now seal metadata on such criminal record screening per section 3.3, or it could apply section 27 to disregard FOI requests on this topic if it labels these "excessively broad" or "repetitious or systematic." Or it could charge FOI application fees, which many downsized newsrooms cannot afford. In sum, the outcome of the situation could be a tragedy for the public interest.
I have three more recommendations:
(1) FOI response delays are a serious problem. We need to set penalties for these. This point was also made by Murray Rankin in his 2006 speech. "There also seems to be no penalty whatever for flouting deadlines, and yet everyone knows that information delayed can often mean information denied."
(2) In his landmark order, 01-20, the B.C. Privacy Commissioner ruled that the UBC Coca-Cola contract should be released despite section 21, because it contained information not supplied in confidence, but only negotiated in confidence, between UBC and the company. "The parties, in effect, jointly created the records." This worthy principle needs to be placed in an amended section 21.
(3) On other kinds of fees, the Federal Court says that government can no longer charge people fees for the search and processing of electronic government records covered under the FOI law. In his ruling of 2015, Justice Sean Harrington said that practices under the federal Access to Information Act have practically stood still since the days when computers were rare in the workplace. Such electronic fees should be removed from the B.C. FOI law.
How does B.C.'s FOI law appear in the world view? When it was passed, the law was hailed by some FOI commentators as the best in North America, but it is still a very modest achievement within the global context.
Even the United Kingdom, B.C.'s model for parliamentary secrecy, has well outpaced us on many fronts. Some Canadian officials still invoke the great tradition of Westminster-style confidentiality to deter FOI law reform. If so, how do they explain why the British freedom-of-information act has a harms test for policy advice and cabinet records, a 20-day response deadline, a 30-year time limit for legal advice records and coverage of a vastly wider range of quasi-governmental bodies?
These are all features lacking in our B.C. FOI law. Yet what works for the British would surely work for British Columbians. The astonishing irony is that Afghanistan, a nation that Canada has laboured at such high cost to transform into a modern democracy — that is, before the Taliban's reconquest — passed an FOI law in 2014, which was then rated No. 1 in the world in the CLD ranking system, while Canada was ranked 58th. A reverse statutory influence would be welcome here.
I am aware that a stellar FOI law is not the sole measure of democracy. Nonetheless, why do we keep supplying critics with such obvious and abundant material with which to admonish Canadians as global hypocrites?
The chairperson of this FOI review committee also serves as our B.C. government's liaison with the state of Washington. This is a jurisdiction from which we can learn much on FOI issues. In my work, I have found no region that manages FOI better than American states.
The U.S public and media would not tolerate our access system. I have had records emailed to me by the American government in full within three days that would likely have taken months under the B.C. law and been filled with deletions.
In fact, on such grounds, Canadians, at times, use American laws to find records of Canadian affairs that they cannot obtain here. For example, through a Washington state FOI, I produced a story that began: "A catastrophic oil spill would set the Puget Sound cleanup effort back decades and result in billions of dollars in harm to our economy and environment."
That is what state ecology officials wrote about the proposed Trans Mountain oil tanker traffic through our shared waters in memos to their governor, Jay Inslee, in 2013. They added that the Canadian oil spill response is "probably a couple of decades behind the American one."
Within the Canadian context, we in B.C. should be inspired by the example of Newfoundland. In 2012, the Conservative government in that province boldly eviscerated its access-to-information act. Its Bill 29 would keep more cabinet records secret, raise FOI fees and allow ministers, on their own, to bar any FOI request they called "frivolous." An uproar of protest ensued, with public rallies on the Legislature lawn in St. John's. The bill passed anyway.
Then, in response, Tom Marshall, a new Premier from the same party, appointed a panel to review the law. It produced a 500 page report with 90 recommendations. In a new act, which came into force in 2015, the government repealed all the worst features of Bill 29, and it passed the draft legislation that had been written by that panel directly into law. Think about that. This is surely an advisable model for B.C., yes?
The people of Newfoundland had objected to a plan to convert their FOI law into one of the worst in Canada. Instead, they pushed to make it the best, as top rated by the CLD. Why could not the same be done here?
Let us now consider the process used to justify Bill 22. The Minister of Citizens' Services, during House debate on the bill, proudly claimed that the bill was endorsed by the popular will, where in the lead-up to it, the ministry had held broad consultations on FOI and privacy issues. This included advice from public bodies and public surveys. This all led to a 28-page report which contains not the original text but, instead, a sanitized and edited summary of these.
It is absurd that I and others are still having to work through FOI requests to obtain the full texts of these submissions. They should have been released proactively, with perhaps only section 22 material exempted regarding personal experiences. In many nations, all such records would be routinely posted on the Internet.
Obviously, this two-year so-called consultation was only a political façade of pseudo-listening, a ploy to legitimize and sell Bill 22 that deluded almost no one. For one thing, fees were never raised as a discussion topic, and if it had been, the response could be well imagined. In fact, the last time when FOI fees actually were discussed with the public, the resulting 2016 special committee report firmly advised against imposing them. The ministry, ironically, praised that report as an inspiration.
Moreover, all my statements about FOI are presented in the open, as here, and I am prepared to defend them publicly. Agencies should do likewise. Yet with the pusillanimous mechanism of these private policy consultations, anyone can claim anything. For example, a Crown corporation could overstate the cost to process the average FOI request by three times or more, and we would not even know this claim was made. It could then be used as a basis to amend FOI law or regulation on fees.
By contrast, I recall that in this committee's public hearings of 2004, a lawyer for the B.C. police chiefs association pleaded for three new restrictions to protect public records. Then a panel member, NDP MLA Joy MacPhail, resolutely countered that such protections already existed under the FOI law's section 15. She challenged him to explain just why that exemption was inadequate. "You've presented no evidence to us that any harm has occurred with FOIPPA." Yet in the private consultations of last year, such an exchange would have been absent, and his claim would have remained unknown and unquestioned.
We had naively hoped for better with the B.C. NDP, who, when in opposition, had introduced private members' bills, which were voted down, that would have solved these very problems. A great blessing for politicians is that their electoral promises are not enforceable in law. In the eternal cycle of nature, as the seasons change from summer to autumn, the leaves turn green to brown, so too can we expect a politician's outlook on FOI law to fluctuate when in and out of power.
I listened on Hansard TV to the opposition protest of Bill 22 with a mixture of gratitude and skepticism, for the B.C. Liberal government of 16 years, which began in 2001, had such a dismal record on FOI issues itself.
Hence, perhaps every MLA, upon his or her swearing-in ceremony at the Lieutenant-Governor's house, might be presented with a multi-coloured reversible jacket, one with flashy red cloth on one side and funereal black on the other. This could be worn whenever FOI issues arise after being turned inside out for each change of government.
As Murray Rankin put it so well in his speech of 2016: "Politicians become ministers, and they become easily seduced by the attractions of secrecy. Can we not find bipartisan support to restore our freedom of information?"
I presented my same 67 recommendations to this committee in 2009 and then, like Sisyphus, again in 2015. Not one was passed into law — zero. Will the same outcome occur again upon the sixth FOI review in 2028 and beyond? I'm well aware that my words here may again be forgotten within a day or two. Some of my colleagues chided my naivety, advising that I was wasting my time on a fool's errand, with nothing to show for it except more grey hair. It seems as though B.C. FOI advocates are speaking into a void — one that returns no echo.
Decades of obstructionist state inaction on FOI have meant a world of lost opportunities. So to British Columbians, I would ask: do you believe that you should have the right to view records on health and education, or crime and the environment, or official spending on public safety — records whose production you paid for with your tax dollars and which were, presumably, created for your benefit?
If so, then speak up now, lest the B.C. government interpret your silence, rightly or wrongly, as consent or indifference. How much longer should Canadians need to launch five-year FOI legal battles to obtain the same kinds of records that the American state governments post freely on their websites? In the end, most FOI misfortunes occur mainly because we permit them to. Every public will have the FOI system it deserves, and one can choose to live in the light of information or in the darkness of ignorance.
On FOI reform, we know it needs to be done, and there is no need to reinvent the wheel. All we require is political will. To this end, the Premier need only fulfil his 2017 reform promises, so as not to confirm the old maxim of Charles de Gaulle: "Since a politician never believes what he says, he is always astonished when other people do."
The B.C. government is bound by law to appoint this committee to review our act every six years. These reviews tend to bear no fruit, because Victoria is not bound to implement the advice given. While I believe you mean very well, the best recommendations of the last four FOI reviews were ignored by the Premier and cabinet and never implemented. Without their support, no progress can occur. I only wish your power were equivalent to your good will.
The same complaint was voiced by Murray Rankin in his 2006 speech: "Most important of all, it has so far failed to implement the very thoughtful recommendations of the 2004 special all-party committee of the Legislature, chaired by Mr. Blair Lekstrom. It has been over two years since the committee issued its unanimous recommendations. The silence from government so far is deafening."
U.S. senator Daniel Moynihan's book Secrecy: The American Experience had a short conclusion:
"Secrecy is for losers."
"First," he wrote, "because it shields the internal analysis from the scrutiny of outside experts. As a result, some very poor advice is used to inform government decisions — as in garbage in, garbage out. Second, needless or excessive secrecy distorts the thinking of citizens, giving rise to unfounded conspiracy theories and a needlessly high level of mistrust of government. If this process occurs, then administrations would have only themselves to blame."
Never was this approach more hazardous than in this pandemic age.
My political beliefs, on occasion, consider not just the liabilities but also the many benefits of real transparency and that, conversely, "open government is for winners." Rather than have secrecy project weakness, guile and insecurity, open government projects competent administration, confidence in one's vision and trust in the people.
Are there times when frivolous or wasteful FOI requests are sent in, at some public expense? Yes, and there always will be. Will FOI revelations cause the government some political embarrassments and inconveniences? Yes again. It would be idle to deny that this is so, and it is evident in the 2,000 stories in the index. Yet we might also reflect upon the motto of Colorado's Aspen Daily News: "If you don't want it printed, then don't let it happen."
Sean Holman had perhaps the best metaphor: "An FOI law is like an artificial organ transplanted into the governmental body — one that the body rejects." Yet I would add that broad FOI exemptions, some of which permit 95 percent of a document to be whited out, were added to render this transplant bearable. It is profoundly important that enthusiasm for FOI laws and practice be conveyed to the younger generations so that they will not lose this essential right due to unawareness or disuse or official obstructionism.
The FOI news index contains hundreds of stories of educational institutions, in categories 17 and 18, on issues such as campus health and safety and financial and administrative misdeeds. Most such articles were produced by the mainstream media, with some by the student press, but because of shrinking newsrooms, fewer of these will now be possible. This renders it all the more vital that the young learn how to empower themselves via FOI.
There are hopeful signs. In response to Bill 22, B.C. high school students launched a campaign against it and objected that "Bill 22's regressive changes to B.C.'s already broken FOI system would prohibit student journalists across the province from accessing government records." In fact, my own FOI journey began when I was a Langara journalism student in 1992, and I heard that the college had commissioned a report on the seismic condition of the building, but the building manager at the time refused to release it, in spite of the students' right and need to know if the roof could collapse on our heads during an earthquake.
In a scornful and imperious manner, as though addressing small children — even though I was, at that time, 30 years old — he told us: "The report is technically too complex for you to understand, and I don't have time to explain it to you. Even if I did, you might take the details out of context and distort it anyway." Well, the BC FOI law came into force a year later, which meant that such a refusal would have been impossible thereafter, but the event instilled in me a profound opposition to government secrecy from then on.
J. Rustad (Deputy Chair): Stanley, sorry about….
S. Tromp: I have two minutes.
J. Rustad (Deputy Chair): Two minutes, okay. Thank you.
S. Tromp: In Mexico and other Latin American nations, children are taught in high school how to file FOI requests as part of citizenship training.
There is good news. This B.C. FOI descent is reversible. In the meantime, MLAs from any party can propose FOI amendments in private member's bills. One of the most appealing features of access law is that it transcends political parties and ideologies.
So here we are. There are many British Columbians who retain a hope that despite Bill 22, politics could still be an honourable profession. Must they wait for another three decades, a more enlightened future age, for the law to be updated, or might they wish to accelerate this process?
This great province surely needs to at least raise its own FOI laws up to the best standards of its British Commonwealth partners and then look beyond the Commonwealth to consider the rest of the world. Indeed, if it wished to, British Columbia could become the leader on FOI law in practice, a model for the rest of the nation and, perhaps, even the world. The choice is ours.
I do not have all the answers, nor does any one individual or institution. Yet in this report, I hope to have raised the right questions. Ultimately, readers will make up their own minds. Most FOI advocates never expect to get everything they want, but we can and must do far better.
In sum, MLAs serve the public in their way, as the news media do in ours. Just as those parliamentarians who passed the B.C. FOI law did in 1992, here, even in this challenging pandemic era, you have an opportunity to create a fine historical legacy for your constituents, one that will endure long after you depart office.
Thank you for your attention.
J. Rustad (Deputy Chair): Thank you very much, Stanley.
We do have a little bit of time left for questions in the committee. We'll start with Adam.
A. Olsen: Thanks, Stanley. Thank you for your presentation and for your work. I think it's more of a comment.
We, as a committee, are seeing a remarkable number of consistent threads running through the presentations that we've received. You can either land on the opinion that all of these presenters have gotten together and colluded on what they were going to present to the committee, or there is actually a very substantial issue in our province that needed to be fixed and addressed prior to what many have called regressive changes that were made in Bill 22.
The only defence that I heard was during that process, for Bill 22. The experts and the witnesses that we have had here have all thoroughly and utterly denounced them.
I think that it is important for us as a committee to consider how it is that we get out of the situation that we find ourselves in, here, today, which is an overwhelming amount of information, an overwhelming amount of testimony that all seems to be very consistent across presenters. The situation we find ourselves in is more challenging now than it was, perhaps, in September of last year.
S. Tromp: Yes, that's true. Only the Premier and cabinet can answer those questions, of course.
T. Shypitka: Thanks, Stanley, for that colourful depiction of the times and tribulations of FOI over the years, the last couple of decades. It was pretty informative, pretty detailed and very colourful, as I said. I'm not too sure whether to congratulate you or give you condolences on your five-timers' club. You've been at it for awhile. Thanks for hanging in there and bringing all these important things to light.
You mentioned the three black holes, as I guess you called them, that we need to identify — the first one being oral government, and we're seeing more and more of that. How would you remedy that issue that we have right now?
S. Tromp: Well, this would be to pass a new information act that makes it mandatory, not discretionary, for government to keep records of their decisions and policy-making, such as the NDP had proposed in a private member's bill some years ago, while in opposition. The commissioner and others have abundant good advice on this subject too.
T. Shypitka: Thank you. Maybe a quick follow-up here. Number 3 was more on subsidiary companies being exempt from FOI. I think you cited a few here, and I think you've drawn some parallels. You mentioned fast ferries in the '90s and B.C. Hydro, maybe the new Site C of the 2020s, InBC, and of course the health authorities as well. How big of a concern do you have of history repeating itself?
S. Tromp: Well, it's a large concern. Of course, the Information Commissioner wrote a special letter to the government, pleading that InBC Investment Corp. be covered — and these entities. It's long overdue. This has been recommended by many committees and experts, and by the NDP while in opposition. It's absolutely indisputable. Appendix 5 of my report shows all of the statements made by all the parties, while they were in opposition, urging that this be done, but then in government, this does not occur. This is vitally important.
J. Rustad (Deputy Chair): I'm looking for any other questions.
I'll jump in with one question and comment, Stanley. Once again, thank you for the presentation. Your dedication to this work really is appreciated.
I must admit that I have not been that engaged with FOI over the years that I've been involved, but having had the experience of being in cabinet, I can understand the draw, the lure, of secrecy. It sounds strange to say that, but it's far easier to be able to make decisions without scrutiny than it is to make decisions with scrutiny. I understand what that is. I'm not saying it's right; I'm not trying to defend it. I'm just saying that I understand how that works.
The question that I really have around this is the same sort of question I've asked most of the presenters that have come, which is: really, how do we advance to much more proactive disclosure, to this situation where, instead of going through this process of always having to request information, being able to categorize and release information on a much more proactive basis and a time schedule?
Maybe that's not all. Maybe we have to get to a place where there is some that's still required by FOI. But how do we get to a place like that? How do we get to a place where, I guess, the public care enough to push for that?
Right now with FOI, there are lots of people that are fired up and interested in it, but when you go out into the general public, most people have never experienced FOI. They don't understand FOI. It's certainly not at the top of their list, especially given inflation and many of the other issues that we are facing today. What are your thoughts?
S. Tromp: Well, in regard to the average citizen, there are many examples in my speech here of FOI usage by the average citizens. I posted 30 examples, as appendix 1 to my report, about the average citizens who actually use the law themselves instead of depending on a journalist to do so. I've tried to show how it matters to the average person.
In regard to proactive release, yes, as much as possible should be released proactively by default, but of course FOI law will always be necessary for records the government definitely does not want released.
In regard to cabinet needing a zone of privacy to make decisions, that is understood. That is why the British FOI law has a harms test for policy advice and cabinet records. They divide them into two: those that would cause harm to the deliberative process and then frank policy discussions — if they were released and the names of those would be withheld. The other part would not cause such harms, and they would be released, because not every single thing discussed in cabinet or every policy advice would cause harm to the deliberative process. It needs to be more precise and less broad, overall.
J. Rustad (Deputy Chair): All right. Thank you very much. I really appreciate that.
Henry, I'm just looking at you. You're good?
H. Yao: I'm good.
J. Rustad (Deputy Chair): You're good. Okay.
Thank you very much for your presentation and for the time. We really appreciate your passion and effort here.
S. Tromp: Sure. Thank you. If you have any more questions, you can send by email. I'll try to answer them.
J. Rustad (Deputy Chair): Great. Appreciate that.
Committee members, we've come to the end of our day. I'm just going to check to make sure we don't have any other business to put on the table.
With that, I look for a motion to adjourn.
Henry, seconded by Tom.
The committee adjourned at 3:56 p.m.
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