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Maclean Kay
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Maclean Kay: FOI issues keep bedeviling governments – and having made transparency a key issue, the NDP really should know better.

A story that quietly bubbled behind the scenes for more than three years came to the forefront in Question Period today.

The story is long, winding, and complex – but essentially goes like this. On December 15, 2017, the opposition BC Liberals filed a Freedom of Information (FOI) request for a “A list of all file names and folder names located on the desktop, my downloads, my documents, and my favourites folders from all electronic devices used by the Premier/Minister/Minister of State.”

Quick aside here, for those who don’t know my work history: I have both submitted and have had to comply with FOI requests. And while I’ve never seen (or made) this exact request, it doesn’t strike me as particularly egregious or even unusual – more on this below.

In this case, the government initially refused, saying the record didn’t exist, and they would have to create it. In other words, they don’t normally take and keep images of folders (almost certainly true) and doing so would be logistically impossible (almost certainly not true.)

Why ask for folders? Because in many cases, that’s where the files are. The government has confirmed this. Interestingly, a few months after the original request was submitted, then-Advanced Education Minister Melanie Mark was taking heat for another, unrelated FOI issue. One of her responses was to explain in detail that she made extensive use of folders:

“For members opposite who are familiar with working with Outlook, you are able to create folders. I have sent, inbox and drafts. I can give you a full briefing on how to use Outlook. I can explain to you that I have a whole bunch of drop-down folders. If you want any questions on housing, there’s a drop-down folder there. I file the emails that come to my attention.”

So, if you’re looking for a specific email sent to a minister – which you’re explicitly allowed to do – you have to know where to look.

In other words, they don’t normally take and keep images of folders (almost certainly true) and doing so would be logistically impossible (almost certainly not true.)

All this was more than three years ago. Since then, this case took a bewildering series of detours, which I won’t list here, because frankly I’m already risking much of my audience just by talking about FOI. Suffice it to say these included an attempt at mediation, as the Office of the Privacy Commissioner became involved and eventually brought in an adjudicator. Both sides sent submissions, counter-submissions, and counter-counter-submissions.

On February 17, the Information & Privacy Commissioner finally (well, almost finally) ruled on the matter. Over the course of 18 pages, the Adjudicator maintained not only was the original request legitimate, but many of the objections were…well, the word that comes to mind is “silly.” To wit:

“While some human effort is required to make these methods work—for example, pushing buttons, entering commands, etc.—that kind of effort is an ordinary part of using computer software and hardware and technical expertise.”

That was in February. This month, the provincial government sent an invoice to complete the work – which would take 90 hours to complete, and thus cost $2,700. Again, we’re talking about screenshots.

In Question Period, Premier John Horgan laughed off the issue, saying he was happy to let the Opposition pop into his office and take pictures of his computer. A good response from a formidable and wily debater, but making it sound trite, quick, and easy belies three years of legal wrangling, and a bill for $2,700 for a task that would apparently take his own staff 90 hours.

In other words, the choice is between a task that would take two full work weeks (plus an extra 10 hours, always safer to round up in government) – or just stopping by to snap some pics, no biggie.

If you’re rolling your eyes, you’re forgiven. There are no angels in this fight. The best any party or government can say about FOI is they try, and mostly get it right, but mistakes were made. In opposition, the NDP made great hay over FOI and transparency – and often, they had a point. But if the opposition’s points were valid five years ago, they’re valid today. And condemning FOI requests as “fishing expeditions,” as the Premier did today, works best when you’re not also an accomplished angler.

In other words, the choice is between a task that would take two full work weeks (plus an extra 10 hours, always safer to round up in government) – or just stopping by to snap some pics, no biggie.

I have written before about BC’s FOI laws and the impossible position they put ministers and political staff in. Essentially, the job is to give honest real-world political advice. It just doesn’t work if that advice is public, in much the same way as legal, marriage, and financial advice. I’m on record as saying the laws are unrealistic and should be changed.

Whether or not you agree with that – and it’s fine if you don’t – one thing is clear. The NDP successfully turned FOI and transparency into an election issue, and shouldn’t be surprised to be held to the same standard, much less a higher one.

Maclean Kay is Editor-in-Chief of The Orca

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