Deliberate misdirection - The Orca

Deliberate misdirection

Rob Shaw 2

Rob Shaw: If what Citizens’ Services Minister Lisa Beare told the legislature about FOI fees isn’t a lie, it comes awfully close.

You’re not allowed to outright lie in the BC legislature. But you can, it seems, get away with misleading it, lying by omission, and flagrantly thumbing your nose at the institution.

At least, that’s what Citizens’ Services Lisa Beare pulled off in the final few days of the fall session of the legislature, as she shepherded her contentious Freedom of Information changes through the house.

Beare spent days insisting that even though her bill created new “application fees” for public information requests, she couldn’t discuss what those fees might be, because they’d be set later by cabinet regulation in an entirely separate “process.”

“I want to let the member and the entire House know that we take into consideration all feedback — from the member, from the commissioner, from everyone — when we’re drafting regulations, which are part of a separate process and not part of the legislative amendments that we have before us today,” she said, in response to questions about the fee.

Beare repeated variations of this line dozens of times over days of debate. A process. A listening exercise. A solicitation for feedback from any and all concerned.

Except it was a sham.

As Beare threw up a smoke screen over “process” on Nov. 25, the government had already settled on the fee behind the scenes.

There would be no new listening.

The bill passed the legislature at 5:15 pm. Within a few hours, that very night, Beare signed the regulation setting the new application fee at $10.

That “process” raises questions. Are you lying to the legislature when you say you can’t discuss something because you haven’t made up your mind – but then your staff have already secretly printed off the order on that very issue and are waiting for you to get back into your office to sign it into law before grabbing a late dinner?

If it’s not a lie, it comes awfully close.

“At best Minister Lisa Beare misled the house,” said BC Liberal critic Todd Stone. “At worst, she outright intentionally misled the house.

“What’s particularly galling is that the minister looks into the cameras and says there’s going to be more discussion on the fee question, there’s going to be engagement, there will be consultation,” added Stone.

“‘I’m listening,’ the minister said about a dozen times in the final hours of the debate. And then she walks outside the committee room and literally signs corridor orders imposing fees and a number of other items.”

The deliberate misdirection was part of a pattern the BC NDP government deployed throughout the development and passage of the FOI bill.

Beare justified the new fees by pointing back to several years of consultation in which the application fees were never mentioned.

She cited a desire by health authorities and post-secondary institutions for the new fees, but went silent when a member of the University of BC’s board of governors said it had never been consulted and wasn’t in favour of the idea.

She professed respect for the independent privacy commissioner, but then jammed him at every turn, ultimately ignoring his final letter urging the government to rethink the fee and several other measures.

She claimed robust First Nations consultation, but then was called out by the Union of BC Indian Chiefs, who blasted government in an open letter for “astounding arrogance and insensitivity” for failing to consult in any meaningful way and violating the United Nations Declaration of the Rights of Indigenous Peoples.

She argued deep respect for the legislative process, but then shut out the all-party committee of MLAs struck by the legislature to review the FOI act.

She told the press gallery she was recommending an application fee in the range of $25, but then had her office accuse reporters of being inaccurate by repeating the figure.

Shaking his head in despair at the gong show was Information and Privacy Commissioner Michael McEvoy. He helped the BC NDP government of the 1990s create the FOI law as a staffer. He publicly lamented about how some political parties profess to champion transparency and accountability in opposition, only to do the opposite once they form government.

Premier John Horgan, who signed off on the reforms in cabinet in March, dismissed the whole mess entirely with a glib “who cares?” when asked about the FOI concerns last month. The genesis for the reforms appear to come from him directly and his immense frustration at how the Opposition BC Liberals were requesting screenshots of his and other minister’s cell phones, as well as document folders.

In the end, the BC NDP successfully passed the FOI bill. Beare can, and probably will, claim a victory.

But the government burned off a surprising amount of political capital in the process, fighting the privacy commissioner, journalists, First Nations, academics, community groups and others who called the new fees a step backwards in transparency.

In the process, it made hypocrites of longtime FOI advocates, including Murray Rankin, Doug Routley, Nathan Cullen, Adrian Dix, David Eby and Horgan himself, who’d long railed against other governments that tried to undermine freedom of information, before eventually doing it themselves.

The BC NDP eventually used its majority to cut off debate on the bill, rushing passage of 30 clauses of the legislation without allowing any questions. Then it rammed the whole thing through a house by a margin of 49 to 24.

After the vote, there was a long moment of silence in the legislature. Normally the government claps at the passage of one of its bills, giving kudos to itself and the minister responsible. BC Liberal MLAs started heckling, asking why the government wasn’t congratulating itself after such a long and bitter fight over FOI.

A couple of New Democrats laughed awkwardly and started to clap. But the vast majority sat silent. Deep down, they know what we know: It was a hollow victory that made liars of them all.

Rob Shaw has spent more than 13 years covering BC politics, now reporting for CHEK News and writing for The Orca. He is the co-author of the national best-selling book A Matter of Confidence, and a regular guest on CBC Radio.