Martyn Brown: Five ways John Horgan could strengthen access to public information
No, that drone you hear is not the buzz of a thousand power saws giving life to Rich Coleman’s invisible affordable housing construction plan. Sorry, folks.
It is actually the angry sound of government shredders. The agents of destruction are frantically trying to get rid of any "transitory" documents that were not already triple-deleted.
Yes, it’s transition time again in British Columbia, with a new NDP government waiting in the wings.
After 16 years of all that paper piling up, the Clark government is newly motivated to do its late spring cleaning.
They don’t call it "caretaker mode" for nothing: it’s all about wiping things clean, scrubbing away the dirt, and taking out the trash.
The B.C. Liberals might want to consult their in-house expert on the do’s and don’ts of information management.
I am referring, of course, to Laura Miller, their infamous party executive director and newly humbled campaign director—"a person of the utmost integrity," in Christy Clark’s estimation.
Sure, she is still facing criminal charges in Ontario for her alleged role in a document destruction scandal that took place when she was premier Dalton McGuinty’s deputy chief of staff. But that experience probably taught her a few things about what not to do in expunging public records.
I mean, in government, you can’t just go and hire any old Mr. Clean to handle all that sensitive stuff that you might regard as toxic waste. Who knew that mere written words could be so caustic in the wrong hands? Just getting rid of them in the wrong way tends to leave its own fresh set of fingerprints.
That can create a real nightmare for anyone who is trying to do away with the "dirt", and in so doing, only creates more of it.
Public information: it’s sticky material that implies community-owned content. It is probably best left preserved by any information manager not wanting to risk running afoul of the law.
It is too easy for politicians and political hacks to lose sight of that fact in government. Just ask Hillary Clinton. Or B.C.’s former information and privacy commissioner, Elizabeth Denham, who wrote a scathing report on the Clark government’s handling of public information.
Or for that matter, just ask former ministerial aide, George Gretes. He was convicted for lying to Denham about his role in deleting documents in the Clark government’s "triple-delete" scandal.
The question is, how will John Horgan’s NDP administration be any different or better than its predecessors at preserving public information for the public?
The NDP platform only contained one vague commitment "to improve access to information rules". It contained no specific policy promises on how the Freedom of Information and Protection of Privacy Act [FIPPA] might be strengthened. In fact, it did not even mention the word "transparency" in that context.
NDP MLA Doug Routley has repeatedly tabled a private member’s bill that would strengthen the act in a number of ways. It is a good first step, if it ever sees the light of day under an NDP government.
Yet as I know better than most, opposition parties always talk a great game about strengthening access to information. In government, they rapidly lose their zeal for transparency and tend to do everything in their power to frustrate that objective.
Hell, I was the guy who wrote the B.C. Liberals’ New Era platform for the 2001 election. It vowed to make B.C. "the most open and transparent jurisdiction in Canada".
Stop it. I can hear you laughing as I type. OK, it’s actually kind of funny, in a pathetic way that I would not hold out as my proudest moment.
Truth is, I spent the next 10 years in government largely thwarting that goal, using every legal means available to keep public information away from the opposition’s and the media’s prying eyes.
It is amazing the "wrongs" you can justify to yourself as "rights", as a political partisan, in mostly fearing information for the potential it holds for political embarrassment. A paragon of virtue, I was certainly not.
My motto was that old adage: "never write what you can speak, never speak what you can nod, and never nod what you can wink."
Read into that what you will, given my unbridled propensity for doing the opposite these days, as my long-suffering readers all know.
Clark’s crew just took that decades-old shift toward "oral government" to a whole new and more devious level. Commissioner Denham’s other damning report made that abundantly clear.
The Clark government’s legislative amendment earlier this year that created "a duty to document" won’t do much at all to change that. Certainly not if the information that is now obliged to be routinely committed to writing can be easily expunged without any real fear of reprisal.
It is noteworthy that even that small step forward was not put under the purview of the independent FIPPA commissioner, as both Denham and the all-party legislative committee had recommended.
Instead, that new and decidedly "flexible" duty to document was left to a minister-appointed bureaucrat, the chief records officer.
As such, the foxes are still responsible for guarding their own information chicken coop, as it were.
Will Horgan fix that? I don’t know. Hope so.
There are literally dozens of ways that the FIPPA could be improved to strengthen access to public information.
Here are my top five suggestions:
Fix the Liberals’ toothless document disposal law
As Denham explained in her November 2015 submission to the all-party committee reviewing the FIPPA, the law lacks teeth.
"Government recently passed the Information Management Act (IMA) which [repealed and replaced] the Document Disposal Act," she wrote. "While [that] act made it an offence to destroy records except as authorized by that act, the new IMA removes the offence provisions, lowering the consequences for unauthorized destruction of records. In addition, neither statute applies or applied to the broader public sector (e.g., municipalities, school boards and universities)."
Somehow that change never quite caught the full attention of the mainstream media. Too bad. It was a major scandal in its own right.
Faced with the potential for serious charges that might have flowed from the commissioner’s investigation into the illegal destruction of government documents, the Liberals simply deleted the provision in the law that previously made it a punishable offence!
Is it any wonder no one was charged with illegally destroying public records?
Thanks to the Clark government’s changes, the law is now an ass. Or more precisely, it is an even bigger ass than it was.
Fix it, John.
And while you are at it, you should also act on the advice that the Clark government ignored from its own special advisor, former information commissioner David Loukidelis. As he pointed out "There is no offence under FIPPA for willfully disposing of records in an attempt to evade or frustrate an access request."
After all, even the all-party legislative committee responsible for reviewing the FIPPA recommended amending the act "to make the alteration, concealment, or destruction of records with the intention of denying access rights under FIPPA an offence under FIPPA". Dah.
Increase penalties under the FIPPA
The current penalties for violating the FIPPA in British Columbia are a joke. They range from $2,000 for privacy protection breaches, to $5,000 for general offences.
Two years ago, the commissioner noted that "British Columbia has some of the weakest penalties in Canada for individuals who commit offences under public sector privacy law. This undermines the role that penalties play as an incentive for compliance, suggesting that the government does not take access and privacy seriously."
She observed that "The Ontario government recently tabled a bill that will increase penalties to up to $100,000 for individuals and to up to $500,000 for corporations and other entities for similar general offences under its Personal Health Information Protection Act."
Now that’s a serious deterrent.
The Clark government was quite content to keep its toothless FIPPA penalties. Horgan should strengthen them.
He should take the advice of the commissioner, of the all-party committee, and of his own caucus critic.
They have all recommended that "penalties for offences committed by individuals under FIPPA should be raised to be up to a maximum of $50,000 for both general and privacy offences".
I can see the government’s agents of destruction holding their breath, just hoping those penalties won’t be made to apply retroactively, as the shredders and deleters continue to work their magic.
Expand the commissioner’s ability to investigate the unauthorized destruction of records
The commissioner explained the problem thusly in 2015:
"Currently, in British Columbia, my Office has narrow authority to investigate the destruction of records. We may only investigate if the alleged destruction of records occurred after an access request was made. This lack of oversight runs contrary to the spirit of FIPPA. Effective oversight would permit my Office to investigate any complaint concerning the destruction of records—even in the absence of an access request."
No government of any political stripe has been in any hurry to correct that obvious flaw in the act.
It is a flaw that has effectively neutered the commissioner’s ability to investigate most acts of questionable document destruction, which typically take place long before any F.O.I. request is ever made.
Obviously, the commissioner should have jurisdiction over the unauthorized destruction of any records covered by any other law, some of which now trump the FIPPA.
Just fix it. Now.
Extend the FIPPA to cover all public sector entities
For many years the commissioner has been trying to correct another flaw in the law. It indirectly exempts dozens of public sector organizations from the act. They can’t be held accountable under FIPPA for providing access to information, or ensuring privacy protection.
In a bizarre twist, public bodies that are subject to FIPPA have often simply created corporation and agencies that are not subject to the act.
For example, wholly owned subsidiary corporations of postsecondary institutions, and entities like the B.C. Association of Chiefs of Police and the B.C. Association of Municipal Chiefs of Police are still not covered by the act, to my knowledge.
Horgan should embrace and immediately act upon the commissioner’s advice that "corporations or other organizations set up by public bodies are conducting public business. As such they should be subjected to FIPPA and held accountable for their use of public resources."
Extend FIPPA, as appropriate, to the legislative branch
This is a biggie.
The legislative branch in B.C. is currently exempt from the FIPPA.
Politicians of all ideological stripes have long maintained that parliamentary privilege should keep them free from the freedom of information and protection of privacy act. Not just in B.C., but in most Canadian jurisdictions.
For a good analysis of that issue, read this recent report from parliament’s standing committee on procedure and house affairs. The House of Commons is not subject to the provisions of the federal Access to Information Act, for example.
For the most part, that committee was quite content to keep the bulk of parliament’s privileged documents far removed from any right of public inspection.
Yet Canada’s independent information commissioner has recently noted that "The access legislation in some Canadian provinces, as well as the U.K., covers the legislative branch to a certain degree, with protections for certain interests."
"Model laws and some top-ranked right to information laws also cover the legislative branch. In addition, numerous reports—issued not only by the Office of the Information Commissioner but also by a parliamentary committee and the task force mandated with reviewing the Act in 2002—have recommended bringing Parliament under the Act."
He went on to recommend that "coverage of the Act should be extended to the bodies that support Parliament, such as the Board of Internal Economy, the Library of Parliament, the Conflict of Interest and Ethics Commissioner and the Senate Ethics Commissioner."
He further recommended "creating a provision in the Act to protect against an infringement of parliamentary privilege."
At a minimum, we should adopt those recommendations in British Columbia.
Why is this important? Several reasons.
First, ministers have long used their privileges as private members to shield themselves from public scrutiny.
When they don’t want information to be "FOI-able", they tend to exchange it to their partisan colleagues through their legislative channels, which are not subject to freedom of information requirements.
It is a legal way of avoiding public access to information that should rightly be available to the public, with due privacy protections to ensure that all legislators can do their job on behalf of their constituents without undue government interference.
Second, there is new need for transparency. That will especially be the case with the depth and regularity of consultation that the new NDP government has committed to having with the three Green party MLAs, as part of their mutual "confidence and supply agreement".
Sure, the government theoretically has a duty to produce any documents it shares with the Greens, in response to FIPPA requests; but the Greens will have no such obligation.
All of that government-to-Green correspondence and documentation should be explicitly subject to the FIPPA, and certainly not hidden from the public through back-channel communications "between private members".
All government/opposition correspondence and document sharing should be governed by the FIPPA and also by the Information Management Act.
Indeed, if that existed today, it sure would be interesting to see what materialized in response to any F.O.I. requests asking for any information exchanged or produced by the governing Liberals or the NDP in negotiating for the Greens’ support.
Why wouldn’t that information be a matter of important historic record that is accessible to the public after a period of time, like privileged cabinet documents? The latter are public available after 15 years.
We should shorten that time frame to perhaps 10 years or sooner, and also allow those documents to be released at the discretion of the FIPPA commissioner immediately, if he or she deems it to be in the public interest.
Third, taxpayers deserve a legal right of access to information about the decisions made by legislators and the practices they employ in managing their tax dollars. They have no such right today in respect of their MLAs and the speaker’s use of their voted appropriations.
As it is, some improvement has been made as a matter of policy, to make more information about constituency and travel expenditures publicly accessible.
But that is not a legal requirement, enshrined in the FIPPA, as it should be—as Canada’s information commissioner has recommended of parliament.
Fourth, the use of "privilege" is too often abused, to protect a cozy little legislative club that is far too content with its own secrecy for the public good.
Now would be the time to open that up, as far as possible, ideally with the Green MLAs’ support, to make the opposition Liberal MLAs and all private members newly subject to the FIPPA.
Horgan could ask acting commissioner Drew McArthur to review that issue.
He could ask him to make recommendations that respect the right balance between preserving legitimate parliamentary privileges and also accommodating the public’s interest, in gaining new access to information that is now out-of-bounds.
Will the NDP embrace those five suggestions? I wouldn’t bet on it, but you never know, if Horgan and Andrew Weaver decide that any or all of them are priorities worth leading.
Even the Green party has been rather mute on the issue. Its platform listed three commitments for establishing "transparency and accountability". Sadly, none of them had anything to do with strengthening B.C.’s freedom of information legislation.
If history is any guide, it is likely one change we can’t count on.
Least of all if Clark’s outgoing government gets its way.