Access Denied: B.C. Freedom of Information Act on the ropes

They say it’s better to laugh about your problems than cry over them, so it’s probably for the best that the B.C. Freedom of Information and Privacy Association were able to book popular local comedian Charlie Demers for its 20th anniversary party.

Darrell Evans, the non-profit’s founding executive director, says he has little to laugh about these days after witnessing the systematic dismantling of the B.C. Freedom of Information and Protection of Privacy Act (FIPPA) over the past several years.

FIPA directors Vincent Gogolek (left) and Darrell Evans believe the B.C. Liberals have diluted freedom of information. (Dan Toulgoet photo)

What was once considered a triumph of transparency has turned into a bureaucratic boondoggle of botched promises, institutional foot-dragging and government secrecy, he says.

“We feel terrible about the current state of the Act,” says Evans. “It’s become a failure and it’s been a tremendously wearying battle over the past 10 years of the Liberals. We’ve managed to beat back some attempts to weaken it, but I certainly can’t say we’ve made many advances.”

Passed by the NDP in 1992 under then-premier Mike Harcourt with resounding support from the Opposition Liberals, it was once considered the most advanced Freedom of Information (FOI) legislation in the country when it took effect in 1993. The act –which covers provincial ministries, crown corporations, agencies, commissions and boards – was designed to give the average citizen (not to mention media outlets, law firms, political parties, environmental groups and private businesses) the ability to access data rarely found in the prepared statements of politicians or corporate PR specialists in a timely and affordable manner. As the name suggests, it also safeguards individual privacy rights by prohibiting the unauthorized collection, use or disclosure of personal information by public bodies.

Evans says there are now ever-shrinking parameters of what kind of information can be released, routine delays meant to deny rather than enable access to government-held information, and punitive administrative fees intended to put people off from making requests in the first place. The initial legislation gave government 30 calendar days to respond to FOI requests, which quickly changed to 30 working days.

“People still do get stuff through the FOI but it is hard. We’ve FOIed several things that have come back saying there are no records and we just don’t believe it frankly. Either you really don’t keep the records or you deny you have them, neither of which is good. This seems to be the pattern. What we are losing is transparency and accountability, and I guess you could say it is an unintended consequence of passing an FOI Act. It just shows the corruption of government that they will do almost anything to not be transparent.”

Donna Liberson shares Evans’ frustration. She’s a realtor and animal rights activist who has filed about 60 FOI requests at the City of Vancouver over the past decade. She fired off her first one in 2003 after recommending a friend temporarily leave their dog at a local animal shelter. The pet ended up being euthanized. “I knew there was some question about whether the city had the right to kill. They wouldn’t provide the documentation that I asked for but were eventually ordered to do it, so then they said, ‘Oops, sorry, we lost the documents.’ Those documents would’ve shown they didn’t own the dog and didn’t have a right to kill it.”

Donna Liberson, a realtor and animal rights activist, has filed about 60 FOI requests at city hall in the past decade. (Dan Toulgoet photo)

Liberson, 65, has since become something of a self-appointed city hall watchdog and routinely files FOI requests in order to monitor municipal spending habits. She says it’s becoming increasingly difficult to both pay for requests and get her hands on documents. She has also spent thousands of dollars on the requests and is currently waiting for five, one of which she filed in 2009. “Initially it was good and effective but it is virtually non-existent now. I have cases going before a hearing and I’ve been waiting two years to receive the information I asked for. Unless you are writing a biography about someone who died a hundred years ago and you are, I don’t know, trying to find out their financial information today, having to wait two years is not right. They’ve pretty much gutted the effectiveness by not having enough staff. It’s just criminal.”

Of course, not all FOI requests at either the municipal or provincial levels are intentionally mishandled. Data storage systems can be archaic, staff inadequately trained and requests poorly worded or simply sent to the wrong desk. However, Evans suspects many of the delays are due to elected officials and other public servants simply not wanting to see their names in embarrassing news stories.

“My motto is that within a bureaucracy, information flows to the path of the least disclosure,” says Evans. “As far as the inner workings go, they simply do not want the public to know what goes on.”

He suspects the desire to not be held accountable is probably part and parcel of being in power. “As soon as they get in, two years on they start having second thoughts and cold feet. Who knows, maybe they actually think they mean it when they’re in opposition. I remember the first politician I first spoke to about this was [former Social Credit Party MLA] Nick Loenen way back in the early ’90s. We came and made our pitch and he said, ‘Well, that is wonderful, but why would anyone in their right mind in a sitting government pass this?'”

At one time, the B.C. Liberals were among the law’s biggest boosters and biggest users, responsible for filing roughly one third of all FOI requests when they were the official Opposition. Gordon Campbell even once sent FIPA a letter decrying attempts by the Glen Clark regime to undermine the legislation. “Expenditure cuts, the threat of fee increases, and the excessive reliance of [Freedom of Information requests] as the only way of obtaining routine government documents are all evidence of a government which prefers the practice of concealment to the culture of openness,” wrote Campbell. “This is unacceptable.”

Campbell promised, as part of the Liberal election platform of creating “the most open, accountable and democratic government in Canada,” to strengthen the law by making requests less expensive and also to widen the legislation’s scope. Instead, filing costs have skyrocketed while the budget for the agency that polices requests, the Office of the Information and Privacy Commissioner, suffered cuts.

Ironically, the act ultimately proved to be Campbell’s Waterloo. His claims that there were no plans to introduce the controversial Harmonized Sales Tax before the 2009 election were only shown to be false after FOI requests eventually unearthed 140 internal government documents proving otherwise.

“We only got that information because it basically got beaten out of them,” says current FIPA executive director Vincent Gogolek. “We put in a request for briefing requests related to the HST because we knew [Campbell] went to a premiers meeting, premiers and first ministers, and there’s no way he was going there without a briefing note. Sure enough, there was a briefing note released through [the Ministry of] Finance. They initially denied they had anything.”

There is an old joke about a small business owner who sends an FOI request to the Canada Revenue Agency to ask if there is a file on him. “There is now” is the response. But while being able to call shenanigans on government corruption is obviously important, so too is being able to find out what kind of tabs Big Brother might be keeping on you personally. Evans cites the example of Robert Glen Harrison, a youth worker who was fired from a Burnaby group home in 2006 after a decade-old allegation of child sexual abuse made by his mentally ill former brother-in-law that was passed on to his new boss by a Ministry of Children and Family Development worker.

It was the first time Harrison had ever heard of the accusation, which wasn’t deemed worthy of investigation at the time, and the ministry nonetheless allowed he and his wife to continue to run a licensed child care facility on the Sunshine Coast until 2004, when the couple split up and he moved to the Lower Mainland looking for work.

Harrison filed a complaint with the Office of the Information and Privacy Commissioner that his rights had been violated. When the commissioner dismissed the complaint, Harrison took the case all the way to the B.C. Supreme Court, which ruled that the allegations should be stricken from the ministry’s record books. His attempt to sue the government for $520 million in damages, however, was less successful and was tossed out last year by the B.C. Court of Appeal.

“The guy lost his livelihood and now he has this stain on his reputation of the possibility he abused this girl,” says Evans. “That’s the kind of problem a person can encounter with misuse or wrong information in a file. And believe me, there are loads of crappy information in files: mistaken identity, malicious action by civil servants, sloppiness. It’s just rife.”

Improvements appear to be on the horizon. Premier Christy Clark recently announced she has directed all government ministries to make all data that does not compromise privacy available on an ongoing basis, as well as to post all FOI requests and responses online at openinfo.gov.bc.ca.

Mike Harcourt believes it’s a step in the right direction.

Mike Harcourt

“I welcome going back to the original intent, which is to allow people to access as much information as is prudent,” said the former premier. “There have been too many restrictions and it has become too costly and cumbersome for citizens and the media to get information. Even though you may get embarrassed or you may get beat up a bit, so what? My experience is that governments should make this information available because the alternative is not that great. If you don’t do it, peoples’ imaginations take over a bit and they start thinking the worst.”

Harcourt said it is a lesson he learned when he was mayor of Vancouver (1980-86) and city council was being criticized for making too many decisions behind closed doors.

“I asked council, ‘Which items do you think need to stay in camera and which do you think could just be sent out to open council?’ It turns out that 100 of the 106 items we had on our agenda didn’t need to be in camera so we took them back out to open council,” he said.

“Within a couple of weeks, when I would come out to talk to media about what was decided in council, nobody was there. It became a non-issue. People saw that we weren’t keeping anything hidden from the public or the media that didn’t need to be kept hidden. That’s the whole point.”

Evans is encouraged by news from the current premier’s office, but is taking it with a grain of salt. “Clark has made some interesting noises regarding a more open government, but then they all do,” he says.

(This story was first published Sept. 23, 2011. © Copyright (c) Vancouver Courier)

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