Why BC’s new government should make Freedom of Information reform a top priority
When a political party returns to power after an absence of 16 years, it is going to have a lot of priorities and will encounter a lot of people advocating for particular issues. That will mean some tough choices about how these priorities are scheduled.
I am going to suggest that one of the top priorities for BC’s new government be the reform of freedom of information (FOI) legislation.
Trust in government is a shaky thing. New governments come to power with a sense of optimism from the public—but that optimism can quickly diminish if the public comes to believe things are being hidden from them.
New governments come to power with a sense of optimism from the public—but that optimism can quickly diminish if the public comes to believe things are being hidden from them.
The outgoing political leadership came to power with a promise to be the most open and transparent government in Canada. The then-new Premier, sworn in in 2011, announced a new Ministry of Open Government. An open information website was set up containing government information. It was a good start.
But things soon began to go the other way. In 2013 BC’s Freedom of Information Commissioner reported that a quarter of FOI requests were being met with the response of “no responsive records,” indicating a failure to create or preserve records that document government decisions and actions. The “triple delete” scandal followed, and with it came the end of faith in the promise of Canada’s most open government.
Now we have a new government and with that there are new opportunities. The NDP’s platform document, outlining their priorities in the election said, “We’ll protect whistleblowers, strengthen conflict-of-interest legislation and improve access to information rules.”
In response to a questionnaire sent by the BC Freedom of Information and Privacy Association, the NDP promised to bring in whistleblower legislation, legislate a duty to document government decisions, and increase penalties for those who interfere with the public’s right to information. The NDP also promised to narrow loopholes that prevent the release of information relating to Cabinet decisions and advice to government, and to strengthen provisions of the legislation that call for proactive release of information in the public interest.
Also indicative of the NDP government’s position on FOI reform is the Private Member’s Bill that NDP MLA Douglas Routley introduced in the last session of the Legislature under the previous government. That bill specifically stated:
- Every public body and service provider must create and maintain full and accurate records of government information, including the records of any matter that is contracted out to an independent contractor.
- Every public body must maintain in an accessible form, so as to be able to be used for subsequent reference, all government information that are in its control, until their disposal is authorized by or under this Act or required by or under another Act.
Prior to that, in 2015, Routley had introduced a more detailed set of amendments. Additionally, in 2017, NDP MLA Shane Simpson introduced a Private Member’s Bill calling for whistleblower protection.
Introduction of these measures would go a long way toward maintaining public confidence in BC’s government.
British Columbia has not had a permanent Information Commissioner since the departure of Elizabeth Denham in July 2016.
But there is one more step that needs to be taken: British Columbia has not had a permanent Information Commissioner since the departure of Elizabeth Denham in July 2016. Appointment of a Commissioner requires a unanimous recommendation of a Special Legislative Committee—which has been meeting off and on since April 2016 but has yet to reach an agreement—and the consent of the Legislature.
BC’s FOI legislation (the Freedom of Information and Protection of Privacy Act) states that an Acting Commissioner’s term ends after 20 sitting days of the Legislature—but BC’s current Acting Commissioner has been appointed twice already, with a third appointment possible in mid-October. I am sure he has done a good job in the position, but, due in part to a lack of stable leadership, the Commissioner’s Office has had problems, including long delays in investigations (in many cases, investigations into delayed FOI responses have more than doubled the wait times for those requests).
The political parties in the Legislature have changed their sides of the table. Hopefully this will help them reach agreement on a new Commissioner, and move forward with long-awaited, much-needed reforms to FOI.
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Disclosure: I sit on the board of the BC Freedom of Information and Privacy Association, however these views are my own and do not necessarily represent the views of BC FIPA.
Topics: Democracy, Transparency & accountability
