When freedom of information is neither free nor informative - The Orca

When freedom of information is neither free nor informative

Rob Shaw 2

Rob Shaw: The NDP’s hypocrisy on Freedom of Information is grotesque, but also coldly calculated. John Horgan understands only too well he’s undermining a system designed to hold government to account.

At first glance, the BC NDP government’s flimsy and at times eye-rollingly bad defence this week of its plan to add steep new fees to public records requests might make you think the party had bumbled into the mess by mistake.

But looks can be deceiving.

Yes, the government was savaged by the privacy commissioner, journalists, academics and both opposition parties for the proposal to add a new $25 “application fee” to Freedom of Information requests.

And yes, it trotted out Citizens’ Services Minister Lisa Beare with nothing but one sentence to defend the move – “this is a modest application fee, it’s in line with other jurisdictions and it will not be a barrier” – that she was forced to say repeatedly in answer to every question, no matter whether it answered the question or how ridiculous it looked.

Yet make no mistake, New Democrats went into this attack on the FOI law with their eyes wide open.

There were, broadly speaking, two targets.

The first was to undermine the Opposition BC Liberals, who are spamming the system with an average of 13 FOI requests a day in fishing expeditions to try and dig up dirt on the current government, its programs, and ministers.

The BC NDP believe the BC Liberals are abusing the system – and they should know, because when the NDP was in opposition it filed the exact same kinds of FOI requests to try and dig up its own dirt on the then BC Liberal government.

Back then, though, the BC NDP viewed using the FOI system to fish out scandals as a righteous cause to fight a villainous enemy in Premier Christy Clark. BC NDP MLAs netted some big fish too – documents that pushed forward the health firings scandal, missing emails that prompted the triple-delete scandal, reports about lax casino enforcement and money laundering, and evidence staffers in Clark’s office using taxpayer-paid time to do partisan work.

That was a lot of fun for New Democrats when they were in opposition with nothing to do but stir up trouble. But now that they’re in power, they’ve come to the same conclusion the BC Liberals did: The FOI system is a real pain in the ass, best avoided, if not totally undermined, where possible.

There’s a word for this: Hypocrisy. We use it a lot in politics but there’s rarely such a naked example of it as Premier John Horgan building his party’s election victory on the backs of scandals he dug up with FOI requests, only to turn around after winning and cripple the system with fees so that nobody can use it against him like he used it against his enemies.

The second target of the changes were to deter journalists from using the system. In particular, one journalist: Bob Mackin. He is responsible for 397 FOI requests in a single year, which is 69 more requests than all of the journalists in BC submitted during that same year.

Under the new fee structure, Mackin would have to pay almost $10,000 to keep filing at the same rate; fees no journalist, or media outlet, in this province would ever be able to pay.

Attacking Mackin’s clear overuse of the system is an easy way for the BC NDP to go after all journalists, whose companies are cash-strapped and can’t afford hundreds of dollars in FOI fees. The BC NDP know this too, which is why they avoided ever bringing the idea of a $25 fee up during a multi-year consultation on changes to the FOI act.

Journalists are one of the primary users of the FOI system, but if you plan on screwing them royally with new fees to try and prevent them from doing their jobs, there’s no point asking them about it in advance or they might mount a campaign to try and stop you.

There are many senior figures in the BC NDP who relied on both FOIs, and journalists, to excel as opposition critics, and they know full well what they are doing. Ministers like Adrian Dix, David Eby, Selina Robinson, Nick Simons, Mike Farnworth and Rob Fleming made a name for themselves by scrounging up records of government malfeasance and then going public with journalists to tell the story.

They spoke out against fees in the past, but now they sit quietly (or worse, actively participate in) undermining the system. It’s a shameful betrayal, and reflects poorly on all of them.

It’s not a coincidence the BC NDP have fielded only rookie backbenchers to defend this bill so far, MLAs who wouldn’t know the FOI act if someone threw it at them across the room, and who have never had to dig up dirt to get their cushy jobs on the government side of the house.

“This is a small, modest and nominal fee and nothing like the increases that we saw under the former Liberal government in MSP and ICBC,” first-time Langley MLA Andrew Mercier told the legislature, while reading lines from a piece of paper that someone who actually knew what they were talking about wrote for him to read.

“This is a really positive bill, in many ways.”

Or rookie North Vancouver-Seymour MLA Susie Chant, who stood up to declare “the privacy commissioner has been very much involved in this,” without mentioning the blistering interviews the commissioner has done opposing the new fees, calling them a step backwards that will harm the whole system, and urging government to reconsider.

On and on the New Democrats went Tuesday.

Rookie MLA Nathan Cullen offered a more nuanced defence, drawing on his time as an Ottawa NDP MP to point out that FOI has an important role to play in keeping government accountable. But BC’s new FOI application fee will be five times the $5 fee Ottawa charges for federal requests.

“If someone is unwilling to pay $5, then are they sincere in their efforts?” Cullen asked, referencing a $5 figure that is not what BC is planning to implement.

Nowhere to be found was Cullen’s colleague from the federal NDP, Murray Rankin, who is now Minister of Indigenous Relations. He called the $5 federal FOI fees “a tollgate on citizens’ right to access”  and “an obstacle” for people to get government information, while he was an MP in 2017. Now, he sits quietly while a government he’s part of brings in fees five times worse than the ones he demanded be scrapped.

BC Liberal MLAs took turns flaying the government speakers. It was easy pickings. They tied into larger secrecy concerns – parents fighting government for more information about COVID-19 cases at their kids’ schools, and academics and doctors fighting for more data from health authorities on COVID data.

“We are at a time when public distrust of its government, of its public institutions, is at an all-time high,” said BC Liberal MLA Bruce Banman. “This bill only adds to that suspicion and frustration by denying access to their freedom-of-information requests.”

BC Green leader Sonia Furstenau tried to appeal to the BC NDP to change the bill.

“Recognize that it’s not a weakness to listen and to adjust based on informed and relevant input and information,” she said.

“Consider the position of the opposition parties and recognize what criticisms would be raised if the tables were turned. How would members respond to this bill if they were in opposition?”

Horgan would probably light his remaining hair on fire if he was in opposition and someone tried this trick on him. But that’s part of the perks of being in power, once you take the hard road to victory you can turn around and burn the bridge behind you to make sure nobody else follows the same route.

There are solutions Horgan can deploy if he wants.

He could park the fee and undergo actual consultation with the media and non-profits who use the FOI system and were skipped the first time around.

He could craft a compromise by setting, say, 20 free FOI requests per person per year, meaning only those who make the highest volume of requests have to pay the fees.

He could cut the fee to $5, a much more manageable amount (but still a burden).

Or, he could scrap the change all together, and admit it went too far.

We’ll see what Horgan decides. But he didn’t get here by accident. This is a cold, calculated move by the BC NDP, and it knew what it was doing. It knows just how powerful a robust FOI system is to hold a government to account. And it wants to make sure to weaken this one while it’s in power.

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.