Rob Shaw: The NDP promised to do better on freedom of information, but BC’s privacy commissioner calls the situation ‘untenable’ – and likely got even worse during the pandemic.
B.C.’s Freedom of Information system continues to be hobbled by problems, failed opportunities for reform and broken political promises, as it seeks to dig itself out from under the avalanche of requests and delays caused by COVID-19.
Citizens’ Services Minister Lisa Beare painted the most optimistic view she could during her ministry’s estimates: that the challenges, while great, are improving.
The B.C. government “has been able to maintain a high rate of compliance” on its legal obligations to disclose information to the public, despite the pandemic, she said.
“Processing times in the fiscal year have been impacted, as these requests continue to grow in size and complexity of the type of request,” she said.
“Despite those challenges and despite the COVID-19 pandemic, we have been able to provide excellent services to citizens, responding to 85 percent of requests on time.”
This amid a backdrop of skyrocketing requests.
“The province has seen a 41 percent increase in request volumes between 2017-18 and 2019-20, with over 13,000 requests received in 2019-2020 alone, which was an all-time high,” she said. “We are continuing to see those increases.”
Premier John Horgan was a staunch advocate of FOI while in opposition, calling timely access to government information a public right and cornerstone of our democratic process.
He also, quite rightly, flamed the previous BC Liberal government on its atrocious records management and skirting of FOI laws, including its infamous “triple-delete” scandal where it was uncovered ministerial staffers were scrubbing records from the system before they could be captured in FOI requests.
Since Horgan has taken office, his government points to that 85 per cent response time as proof that his additions of extra staff and resources have cleared up backlogs from a response time of 74 per cent in 2015-16.
“So we have a 41 percent increase in volumes. We have a pandemic. We have increased complexity and size of FOI requests, yet we’ve built and maintained a better system and are working at an 85 percent response rate,” said Beare.
But if you want a true indicator of where FOI reforms lie on the political radar, look no further than Beare’s mandate letter after October’s 2020 provincial election, in which a previous commitment to update the Freedom of Information and Protection of Privacy Act was mysteriously dropped.
The premier just plum forgot about it, apparently. He had to issue a second mandate letter shortly thereafter to restore the forgotten provision.
Not only has that been lost in the shuffle, but a previous 2017 promise to create penalties for people who interfere with the information law has gone unfulfilled for more than four years. As has a promise to increase the number of public bodies subject to FOI.
In both cases, Beare said she’s actively working on new legislative changes.
But Beare’s optimism is not shared by B.C.’s independent Information and Privacy Commissioner Michael McEvoy.
He released a report in September, which was largely overshadowed by the pandemic, sounding more alarm bells about the sliding performance of FOI.
Timeliness has improved since 2017, he concluded. Sort of.
“This is welcome,” wrote McEvoy. “But it must not obscure what continues to be a blight on the access to information system and a threat to the public’s confidence in it: between April 1, 2017 and March 31, 2020, government took it upon themselves, in over 4,000 cases, to extend the response time for an access request without any legal right to do so.”
The situation is “untenable” and the B.C. NDP finds itself guilty of the same dismissive attitudes as the previous BC Liberal government it criticized, wrote the commissioner.
“This untenable situation has spanned multiple governments over many years. My worry is that, over time, a culture of acceptance has grown around this issue, affecting government’s attitude toward the problem, and also, to be frank, the approach my office has taken. This must end.”
McEvoy’s report doesn’t really cover the pandemic, in which time extensions for requests were granted using special permission by the privacy commission due to the extraordinary circumstances.
It’s unclear how bad things have gotten during the totality of COVID-19, when civil servants and politicians were so preoccupied by the crisis they largely punted off responsibility for responding to information requests.
Undoubtedly, the privacy commissioner will report out officially on it in due course. Anecdotally, folks who routinely file FOI requests, including myself, can tell you it is horrendously bad.
Beare said government has hired a new company in January 2021 that will help modernize FOI services and use new technology to do things like weed out duplicate copies of records in requests, in turn reducing records and speeding up times.
When she was asked by Opposition critic Bruce Banman how many timeline extensions her government has taken during the COVID-19 pandemic, she ducked.
“We do not take any extensions without legal authority,” she said.
That’s not what the privacy commissioner says. According to him, things are getting worse and this government, like others before it, is drifting.
“While I am encouraged by the improvement in government’s response scores, I am
deeply troubled by the large number of cases left unanswered within the time limits set out in FIPPA,” he wrote. “This state of affairs cannot continue without bringing British Columbia’s access to information law into disrepute.”
We may already be there.
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.
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- You can also find Rob every Friday hosting Political Capital on CHEK TV, YouTube, this site your favourite podcast platform, and PodFace. Is that real? It should be.
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