British Columbia’s information and privacy system needs many changes, says the eight-member committee.
The BC government has work to do to reverse what many democracy advocates see as a culture of secrecy within its access to information system, according to a special committee report filed with the ‘Legislative Assembly.
The Select Committee to Review the Freedom of Information and Protection of Privacy Act “recognizes that access to information and the protection of privacy are interdependent and essential to promoting trust in public bodies” and, as such, made recommendations requiring “immediate action”.
The committee, made up of eight members of the British Columbia legislature from three parties, was formed following a controversial decision by the Ministry of Citizen Services last November to start charging $10 per request for access to information.
The committee, however, did not recommend removing these new fees. Instead, he suggests waiving the application fee and any applicable processing fees in the event a public body fails to meet the statutory response deadline.
The committee recommended increasing the response time from 30 business days to 30 calendar days.
The Department of Citizen Services said it received more than 10,000 freedom of information requests in 2020-21, and the average cost to process a request is $3,000, the report noted.
No fees are charged to individuals accessing personal information or to First Nations governing bodies.
“The Canadian Association of Journalists indicated that the government’s intended goal of discouraging repetitive, vexatious or politically motivated requests could have been addressed in a more targeted manner, rather than by charging a request fee,” the report noted. .
The committee discussed data security, including how the BC government changed the law in 2021 to allow data to be stored outside of Canada. However, the committee made no recommendations to reverse the trend, instead suggesting the government consider expanding national server capacity.
“Members agreed that data is one of the most valuable assets and that it is important to have a strong regulatory framework in place to protect information, and recognized that data held in other jurisdictions are not subject to the laws of British Columbia. They also noted that the current reality of data use and storage means that data security is complex and requires multiple risk assessments,” the report states.
The committee also recommends adding a “duty to document” to the law, to ensure that all public bodies create and maintain detailed records of decisions and actions. The committee heard about how government officials can make decisions and communicate on issues in person or over the phone and these records are not documented.
The Union of BC Indian Chiefs sees this lack of record keeping as a barrier that First Nations face in accessing government information to support their claims, the committee noted.
Another important issue addressed by the committee is a recommendation to “extend freedom of information provisions to the administrative functions of the Legislative Assembly and to ensure that documents subject to parliamentary privilege, including those related to the work of Members and their constituency offices, remain exempt.”
This issue was at the forefront of public debate when former House Speaker Darryl Plecas noted in 2018 that there was poor spending scrutiny by legislature workers. The case led to House Clerk Craig James being sued for fraud last month.
The report dives into the granular details of the law, explaining how there is a discretionary exception for “advice” or “recommendations” by bureaucrats to redact requests for information. The committee recommends that these exemptions “do not extend to the facts on which they are based; or for factual, investigative or substantive material; or for the evaluation or analysis of such material; or for professional or technical advice.
The committee calls for the law to clarify that the exception only applies to legal advice provided in confidence and “not whenever a lawyer is involved in providing policy or program advice.”
The committee also recommends that public bodies expand proactive disclosures, particularly with categories of records that are routinely requested and released. It also recommends that records related to public procurement processes be released proactively, including when a process is cancelled.
Requests for information are supposed to be handled by bureaucrats who have a “duty to help” the requester, but reporter Bob Mackin told the committee that relationships with reporters can be adversarial, the report said.
As such, the committee recommends strengthening this duty to assist in the law, “including ensuring that public bodies are aware of the duty to assist candidates and requiring public bodies to provide rapid, precise and complete assistance to candidates”.
The BC Freedom of Information and Privacy Association explained that public agencies have a “culture of secrecy by default, in which the focus is on the risks associated with disclosing documents.”
Mackin and journalist Sean Holman told the committee that such a culture, where citizens do not receive information, undermines democracy and incites conspiracy theorists and extremist ideologies.
Information and Privacy Commissioner Michael McEvoy said the committee’s report “sends a particularly strong message about the need for fundamental change towards a culture of transparency – change that will help establish and maintain trust between public bodies and the public”.
McEvoy said the recommendations on privacy issues should be adopted by the government.
One of the recommendations is to “examine the socio-economic and privacy issues associated with anonymization, automated decision-making, biometrics, right to be forgotten, data linking and destruction data to develop clear regulations”.
McEvoy said in a written statement that he was “encouraged by the committee’s recommendations to take immediate action to ensure adequate oversight of automated decision-making, and for the government to consult with me, as commissioner, to put have regulations in place that guarantee data-linking initiatives are transparent and protect privacy.
McEvoy said his office is still reviewing the impact of the new $10 fee.
The report can be viewed online.