(Click
above)
Introduction
By
Stanley Tromp – Right to Know Week, September 2019 (File in PDF)
Produced as a reference for journalism students,
this Excel database contains a summary of every significant news article I
could find that was produced from records obtained through requests under the
B.C. Freedom of Information and
Protection of Privacy Act, since the law took effect on October 1, 1993.
(Many thanks to Thomas Crean, former treasurer of BC FIPA, for providing the idea and initial
support for this project.)
The search was extensive, through
mainstream newspapers, magazines, radio and TV, as well as from small rural
newspapers, student, alternative and online media. More than 1,900 articles
were found, and placed in 24 categories. The
Index is best viewed on a large screen, and the topics are word searchable,
by Ctrl-F. Other features:
• Alongside several stories I have placed a {*} symbol, to draw attention to what I
believe is an especially interesting, timeless or historically important FOI
example (and time-pressed readers could skip ahead to these results). A few have
led to investigations, regulatory changes, and relief or justice for affected
persons.
• Many of the articles are not based upon FOI requests
filed by journalists, per se, but
from those filed by interest groups (most often environmental), or opposition
parties, or the participants in events, who then in turn shared those records
with the news media.
• The main focus
of this database is the BC FOI law. Yet one can also click on the red tab at the bottom to see
fascinating stories about this province produced via the Canadian federal Access to Information Act (1982) -
mainly on records from the RCMP, Health Canada, and Environment Canada. Then,
within that second red-bannered worksheet, one can scroll to its bottom, below
the orange bar, to find articles
produced via foreign FOI laws, mainly American. (One can click on the blue tab to return to the B.C.
stories.)
• For FOI appellants and media lawyers:
When contesting FOI obstructionism at inquiry before the information commission
or courts, one can search this database for the types of records that have been
released under FOI before, and therefore ideally should be again. This can also
be done via the sectional index of OIPC rulings at - https://www.oipc.bc.ca/rulings/sectional-index/
• Taking the world view, such an FOI story database could be replicated in any
province or state, indeed any country, and I would encourage this for the
benefit of the public and journalism students (for it could also serve a source
for story ideas). A non-profit group could hire a researcher, journalism
student or retired reporter for this task, and perhaps update it yearly.
A fourfold purpose for the BC FOI News Story Index
(1) The Public Interest
I posted this in global Right to Know Week, whose purpose, since it started in Bulgaria in 2002, is to raise world awareness of the individual’s right to access government information. I believe the value of FOI needs to be demonstrated rather than just asserted. If the public asks, “Why should we care if we have a good FOI law?”, a kind of answer can be found here. Every British Columbian who browses this database for an hour will find it time well spent, I guarantee. To dispel the idea that FOI is mainly utilized by the big city press, I searched all B.C. local newspapers from the Agassiz-Harrison Observer to the Williams Lake Tribune to find dozens of local stories from every part of this province.
The vast range
of FOI topics is quite daunting, covering the whole spectrum of society, from
the cabinet office to Vancouver’s Downtown Eastside, from farms to coal mines,
from nursing homes to logging roads. Most powerful are the sections on the
shocking mistreatment of children, seniors and animals. The old adage of
journalism’s mission being “to afflict the comfortable and comfort the
afflicted” has been well realized here, with news that can bring some degree of
justice to the powerless, and voice to the voiceless.
(The most
incomprehensible remains Stewart Bell’s story from FOI records in the Vancouver Sun of October 23, 1997: Rapists, pimps allowed to keep jobs working
with children. Under the $1-million B.C. government screening program for
people working with children, 217 persons were declared "no-risk" who
had criminal records for sexual assault, sexual interference, living off the
avails of child prostitution, indecent acts, assault, kidnapping, and drug
trafficking. The next day, the attorney general ordered an investigation of the
criminal records review panel.)
For many
readers, the most interesting and moving summaries may be found in Category 6 –
Personal Requests (perhaps the best place to start reading the Index). These 70 stories are based on
FOI requests that were filed not by journalists but by individuals or their
family members often in some form of distress. Working to improve their lives,
they obtained documents that helped some to clear their names of false
allegations, or aided adoptees to find their true parents, or enabled others to
obtain redress for childhood abuse, or workplace injuries, botched surgeries,
hepatitis C infections, schoolyard bullying, land appropriations and rental
evictions. It shows that obtaining records is not solely within the purview of
experts, and their usage best demonstrates the professed goal of the FOI law –
to empower the average citizen.
The first and
lengthiest category concerns your money. In articles that may prompt reader
groans and/or chuckles, FOI revealed how the public treasury was sapped as your
tax dollars went to a $572,000 severance for a former city manager for 19
months service; or $9 million in severance for fired political appointees after
the 2001 election (one gaining $177,475 for seven months work); or a PR
spin-doctor charging $75,000 in moving expenses to relocate from Victoria to
Vancouver; or two university deans gaining $500,000 interest-free housing loans
each; and so on and on.
Overall, these
stories on issues as diverse as health, safety, financial waste, public
security, and environmental risks share two common features: all reveal issues
critical to the public interest (i.e.,
not merely topics “the public might find interesting,” as some officials try to
belittle it), and all were made possible only through FOI requests. They belie
the most pernicious, self-serving myth of all – “What the people don’t know
won’t hurt them.”
Here we can see
politicians contradicted by policy experts, warnings not heeded, the hypocrisy
of preaching one course in public and doing the opposite in private, draft
reports watered down for their final public versions, and more (particularly
for those adept at reading between the lines). In stark contrast to the bland,
vague reassurances of government public relations, we encounter the sharp bite
of reality as we read in graphic detail inspectors’ reports from the
trenches.
The articles
require a second look, for when they appear in daily media they may be
forgotten within days, but many should not be, because we could be living
continuously with the unresolved or recurring problems that they have raised.
Moreover, not every FOI story necessarily reveals a scandal, but can still be
valuable in educating the public on the scope of a little-known issue, and on
how government operates. My fondest hope is that the public may finally realize
that not everything good can be had for free online, and here see the value of
FOI journalism, enough to financially support its production, and so to ensure
its survival.
This catalogue
is also a necessary and powerful corrective to a ruling party’s zealous
loyalists and the bureaucracy’s professional obstructionists. These often try
to trivialize and discredit the FOI law by fixating on what they call the
“frivolous and vexatious” usage of it
(e.g., “Those malicious and time-wasting gadflies swamp us with hundreds
of systematic requests – at the taxpayers’ major expense - for every lunch and
taxi expense chit, receipts for office carpet replacements, etc.”).
Such requests
might indeed occur, but at the same time such critics always remain silent upon the many creditable
revelations - of human abuse, wasteful spending, environmental damage, the
personal cases cited in Category 6, and other grievous public harms – which
were only made possible through FOI. The latter was surely the goal of premier
Mike Harcourt who passed the law, and whom told the Jack Webster journalism
awards dinner in 1993 (as I well recall), “We passed an FOI law so you folks
could do more stories.”
Moreover, while critics
complain of the cost of administering the FOI law, it is really a miniscule
fraction of the B.C. budget. In fact, the FOI system often saves public funds,
because public outrage over misspent money – revealed via media FOI requests –
has induced government to trim the waste and tighten controls.
A common theme
that emerges from the articles is the inappropriate usage of public or private
sector powers. Its revelation by FOI is usually (but not always) followed by
some justice, restitution, and improvements. On such misdeeds, it has been well
said, “sunlight is the best disinfectant,” a relief to the public from the
darkness of ignorance, and one of the few ways to curtail some forms of strange
wrongdoing that can only thrive in secrecy. Whenever officials claim they want
to withhold records because of fear the public might “misunderstand” them, it
is more often the case they fear the public will understand them all too
well.
Yet with
Canada’s ineffectual FOI laws, we can produce far fewer FOI news stories than
the American press does. In fact I often use the FOI law of Washington State,
and the contrast in responses with B.C. is like night and day. The loss of
hundreds of such untold and untellable news articles in the public interest
that might have been possible amounts to a world of lost opportunities. This Index may bring an ironic, unintended
result, whereby officials may say: “Look - this database demonstrates the law
is working very well. Therefore no law reform is needed.” No.
The key point, which I cannot overstate, is this: If our FOI laws were
raised to global standards, this story list could have been twice as long.
Overall, these
stories can serve as an antidote against despondency or cynicism regarding the
eroded B.C. FOI system, for they show
how journalists can still overcome the barriers of bureaucratic and political
resistance to produce valuable results. But imagine losing them. There are many
such articles from the 1990s golden age of B.C. FOI (relatively speaking) that
one simply cannot see any more today because officials have so undermined the
FOI law and exploited its gaping loopholes. In response, many journalists
(i.e., those that remain) have simply given up on the FOI process - a most
regrettable error I believe. Our task should be to revive the spirit of the
1990s in which such fine work was possible. Why should we - or the public -
accept anything less?
(2)
To encourage needed FOI law reform
This second purpose stems directly from the
first. It is well known that B.C. and
Canadian FOI laws have fallen far behind the rest of the world (as detailed in
my book on global FOI, Fallen Behind,
updated this year at http://www3.telus.net/index100/foi ). Urgently needed reforms have stayed frozen in a
circuitous time warp for decades, while a longtime B.C. legislative columnist
has well described the B.C. government’s FOI record as “the shame of the
province.”
It is
fundamental to keep in mind that FOI law should transcend political parties and
ideologies. Yet with the B.C. Liberals in power, the
prospects for FOI reform were - and almost surely would remain - absolutely
hopeless. The
NDP now in power fully acknowledged what needs to be done, for when in
opposition for 17 years its MLAs such as Doug Routley introduced private
member’s bills that would have solved exactly these FOI problems (bills that
were voted down by the Liberal majority).
So
we had, perhaps naively, hoped for
better with the B.C. NDP. Our faith was boosted in the last B.C. election
campaign, when the NDP, in a questionnaire to FIPA on April 27, 2017, pledged
to reform the law so as defeat
the triple obstacle of oral government, the policy advice exemption, and
subsidiary companies. (See: http://www3.telus.net/index100/NDPreply2017 )
“We support the Act being expanded to capture subsidiaries created by public bodies,” the NDP wrote to FIPA. They added that “BC Liberals’ use of section 13 to deny even factual information has led to widespread call for reform,” and “we support the Commissioner’s advice . . . . that the meaning of this section should be restored to its original, pre-BC Liberal, intent.” When FIPA asked if its government would put a “duty to document” principle into law, the NDP replied: “Yes,” and they recalled that while in opposition they had introduced several bills to “create a positive duty to document government actions.”
The public is
still waiting, with no action. Last May the B.C. NDP proudly announced that it
had “kept 80 percent” of its electoral pledges, with one media report echoing,
“one thing you can't accuse them of is going back on their promises.” Not so.
The bureaucrats’ 2017
briefing notes to the incoming minister state on FOI: “Further review and
consultation is required.” The authors must be well aware that public bodies
already have had 20 years of opportunities to consult through four legislative
reviews. Worse, there was - and is - no deadline set, which encourages this
needless new exertion to expand ad infinitum. Yet the NDP still yield to their
obstructionist officials’ eternal script with its vacuous three C’s: “These are
very complex issues, which require
more consultations,
because of the risk of unintended consequences.” Incorrect. The
reforms are simple, they have been studied to death for decades, and other
nations have not been harmed by passing them (as per the global norm).
Rather than have
excessive secrecy project dishonesty, weakness and insecurity, open government
projects honest and competent administration, confidence in one’s own vision,
and trust in the people. Premier Horgan needs to fulfill his party’s April 2017
reform promises, and so as not to confirm the old maxim of Charles De Gaulle:
“Since a politician never believes what he says, he is always astonished when
other people do.”
(3) An incentive and story idea
generator for journalists
Beyond an
archive, this catalogue (which can be updated continually) was also intended to
be used as an active tool for both journalism students and working reporters.
They can browse through the subjects, in
Column B, for story ideas, and the database is topic word searchable by
Ctrl-F. Even with the state’s new FOI
obstructionism, many records that were obtained before can often be retrieved
again; this is at least worth trying. Reporters from other provinces may find
it interesting also, for a certain type of record obtained by FOI from one
crown corporation, health authority or city hall can likely be obtained from
the same type of entity anywhere else.
Sometimes to
enhance the story, the media post the original records on their websites, and
the Vancouver Sun’s Chad Skelton laudably
constructed searchable databases for the public on government salaries, and
nursing home and daycare inspections.
Even in these challenging times, the news media still work as an indispensible bridge between government and the public; the vast majority of Canadians will never file an FOI request, and so, by default, the records that the media requests will generally provide what the public sees. Although the press in Canada generally file only between five to ten percent of FOI requests, the benefit to the public interest is felt far beyond these statistics.
Compared to
regular media (transcribing council meetings or recycling press releases, with
the agenda set by others), FOI journalists act proactively, breaking new
ground, working against the grain. The general topic investigative reporter is
the wild card of democracy, responding to secretive governments in the spirit
of the Colorado Aspen Daily News motto:
“If you don’t want it published, don’t let it happen.” Enterprising sleuths shine
needed spotlights into the darkest corners, work without fear or favour, and never
mistake quantity of information for quality, nor swallow the official
line.
Some FOI stories
remind one of a lightening flash in the night, waking the public from its
sleep, which is followed by a short pause, then a thunderclap (equivalent to
the next day’s reaction to the misdeeds revealed by the story). To bypass public relations spin and “pack
journalism,” such articles are welcomed by a public starved for substance -
stark and needed factual correctives to a Trumpian, fact-free, “post-truth”
age, where taxpayer-funded PR staff outnumber news reporters by 5-to-1 (an ever
expanding ratio), and the remaining newsrooms are awash in oceans of social
media, ads, entertainment and trivia.
(4) The historical record
The
Index can be of interest for local
historians, sociologists and political scientists also. Scrolling through it,
some may have almost the sense of reading a parallel history, one perhaps more
“real,” running concurrently to the official version the public was meant to
see. (On occasion one might also wonder here if “those who do not remember the
past are condemned to repeat it.”)
In this digital age, as time accelerates with
ever shortening public attention spans and competition for our attention, it is
all the more necessary to pause for an hour, and take stock of all the B.C.
media have achieved with FOI over the past quarter century. Memories grow faded
and distorted with time, but written records remain fresh and accurate.
(Some of the
earliest articles were not posted online, and even most of those that were have
long ago been deleted from the internet, and are certainly not retrievable by
Google. In 1998 I helped compile a book for the BC Press Council entitled For the Record – a paper-based
collection of 157 FOI stories produced in the first five years of the Act; the yearly numbers of stories
greatly expanded for a short while after that, as more media began utilizing
it.)
Last month’s events
are overridden in the river of time, what is out of sight is generally out of
mind, and yesterday’s articles are forgotten as “old news.” Yet many should not
be because we could still be living with the problems that they have raised
(e.g., a decade before the Peter German report on money laundering at B.C.
casinos, the CBC revealed the problem in an FOI story of May 21, 2008). Even
dated or resolved issues can still provide an interesting record of social
history.
Another goal is
to preserve and appreciate the work of writers here. (Barbara Yaffe of the Vancouver Sun has the distinction of
being first, one month after the law took effect, producing an FOI-based story
on November 6, 1993 on lavish spending by B.C.’s agent-general in London.) Some fine stories - which readers may have
forgotten or missed upon their first publication - have received journalism
awards, while others should have. Browsing this index makes us feel all the
more acutely the retirement of such prolific FOI champions as Stewart Bell,
Larry Pynn, Kim Pemberton, Ann Rees, Chad Skelton, Janet Steffenhagen and
others. Yet we can take much hope from the superb FOI articles being produced
by the new generation of journalists such as Sam Cooper, Zac Vescera, Travis
Lupick, Tyler Olsen and Bethany Lindsay.
When seen in such a database, the stories are
re-contextualized; quality FOI articles that frequently appeared in the 1990s
and were taken for granted now assume a new stature in these bleaker news media
times, one that will likely only grow in the years to come. Some journalists who
write “the first rough draft of history” can be needlessly modest at times, and
their historical influence may be overlooked.
(“Another
problem is that historians, disdaining journalists and their work, often ignore
them. . . . the old feeling, never abandoned in the newsroom or university, is
that journalists are somehow inferior creatures, involved in practices akin to,
say, poultry or mortuary science, not in a high and honourable calling.” - Muckraking,
edited by Judith and William Serrin, 2002)
Professional
newsgathering is not a sunset
industry, even – rather especially - in a so-called “post-truth era.” While
these times are extremely challenging, obviously, it can help us to glance
backward to draw guidance from the pioneers. Some such articles here can
galvanize us today, and are quite easily updated or replicated. It is vital for
the public interest to pass on the FOI journalism torch to new generations of investigative
reporters, of whom there will always be.
The B.C. media’s
service to the openness cause was noted by the province’s first Information and
Privacy Commissioner David Flaherty (even despite FOI-based news stories
sharply critical of his travel spending), a privacy expert whose rulings,
candidly speaking, were mostly deleterious to transparency. His words below are
even more important today in this age of newsroom reductions than two decades
ago. In his final annual report of 1998/99, in Ave Atque Vale: Hail and Farewell, he wrote:
I wish to close on a note of high praise for the
media in this country, in at least partial response to the recurrent attacks on
them by politicians in particular. I am not thinking here of the issue of
trying to balance competing interests of accountability and privacy in the
dozens of decisions that I have made in response to media requests for access
to information. Nor am I selfishly reflecting my strong sense that the media
would have had to be my ultimate defenders, as surrogates for the public, if
the politicians and government of the province had chosen to turn against the Act by, for example, abolishing it.
There have been times when I did not regard this as an idle threat.
At the end of the day, my privileged
vantage point of the past six years has fully persuaded me that a free press is
absolutely fundamental to the preservation and advancement of an open and
democratic society in British Columbia and Canada as a whole. Becoming fully
persuaded of what may strike some as a truism has been an added benefit and
lesson from my experience in public office. It has been worth it.
===========================
The Historical
Context - high hopes, then erosion
We will bring in the most
open and accountable government in Canada. I know some
people say we'll soon forget about that, but I
promise that we won't!
- Newly elected B.C. premier Gordon
Campbell, victory night speech, 2001
Never
in my wildest dreams did I expect that foot dragging and a penchant for secrecy
would
prevail to the extent that it has. No matter how good the law might be,
it won't work if people in power are out to
subvert it.
-
Former B.C. Attorney General
Colin Gablemann,
who introduced B.C.’s FOI law,
2007 speech
When it was
enacted in 1992 by NDP Premier Mike Harcourt, British Columbia’s Freedom of Information and Protection of
Privacy Act was hailed by some legal commentators as “the best FOI law in
North America.”
On October 1,
1993, the law came into effect - launching officials, politicians and
journalists into uncharted waters, a brave new world. It worked fairly well for
the first two years. Then, inevitably, the honeymoon soured when FOI requests
began revealing serious governmental failings and scandals. The FOI law became,
in effect, a victim of its own success.
Indeed,
journalists soon had a vague foreboding that this freedom was too good to
last. Harcourt's genuine support for
transparency was sharply reversed when he was succeeded in 1996 by the NDP’s
Glen Clark, the only B.C. premier who openly mocked the FOI concept and never
even feigned support for it. In fact, Clark made a joke (or was it?) at a media
event that "If I had my way in cabinet, we wouldn't have an FOI Act."
Transparency-averse
officials got the message from the top. If FOI usage had been only half as
effective or avoided certain areas they might have left it alone, but such was
not the case. The empire struck back - hard. The evasions began under the NDP
but grew in ever more creative ways under the Liberals after their victory in
2001. (These are detailed at length in my 2016 report on the B.C. FOI law, The Vanishing Record, at http://www3.telus.net/index100/foi )
Moreover,
officials are all too are well aware of the economic stressors and onerous
restructuring in the news media, and this reality has emboldened them to
quietly push ever further to expand the boundaries of secrecy. All these
factors have combined to create “a perfect storm” for FOI journalism, and to
some it may seem almost miraculous how any good FOI stories are still being
produced. Today, oddly, the FOI freedom of the Harcourt years, i.e., the Golden
Age of B.C. FOI, feels about as detached and remote as the 1960s.
To be fair,
transparency has improved on another front. Canadian leaders keenly endorse the
new era of digital government, such as with the posting of information datasets
online. To this end, Victoria posts salaries and ministers’ daytimers online,
along with Comptroller General audits (albeit partly redacted); the Vancouver
Police Board starting posting summaries of its in-camera meetings; after I used
FOI to obtain pollution violation reports from the B.C. Oil and Gas Commission
for news stories, it started posting these reports. I
concede to e-government advocates
that not all this work is inconsequential; for example, in 2015 the B.C.
Legislature began posting MLA expense
receipts. (“We asked for this for six years and it finally happened,” said the
Canadian Taxpayers Federation.)
Unfortunately,
this new activity can pacify or tranquillize the public with an illusion of
transparency and empowerment, while its legal rights to obtain records through
FOI laws are quietly regressing at the same time. Techno-utopians are dazzled by new
technologies, first mistaking quantity of information for quality, then form
for content, and finally the means for the ends. Yet a new deluge of
self-selected government internet filler is no substitute for urgently needed
FOI law reform. This is obviously a bait and switch ruse, an artful game of
faux transparency.
Another
switch is the government focusing reform on improved FOI speed and process. But
if 100 pages of facts and analysis on a vital heath topic are blanked out under
Section 13 (which does occur), then what difference does it make if all those
blank pages arrive in one week or one year, in PDF or Word format, by email or
on paper?
Moreover, Vancouver
Sun reporter Chad Skelton explained that most of the database stories
produced at the Sun were based on data sets that the newspaper had to
obtain by FOI requests and not by governments' routine release, “so we need the
backstop of the FOI law.” This fact alone confirms the far lesser value of the
voluntarily posted datasets than FOI laws. In sum, governmental social media
and datasets would ideally be a useful supplement to - but not a substitute for
- strong FOI laws, as a sugary dessert is advisable only after a full
nutritious meal and not in place of it.
To be fair, one
must note that the federal Access to
Information process is even worse than B.C.’s at times. On the Index’s red tab, one can see fine ATIA stories on the RCMP, a crucial issue
as this police force oversees most of B.C.’s land mass. Yet this is nearly
impossible now, because for the past decade, the RCMP ATIA office in Ottawa, claiming vast backlogs, is virtually frozen
and behaves almost as though exempt from the law.
Some of my
articles are here too; I recall my quest began as a Langara College journalism
student in 1992, when the school’s building manager refused to release a report
on the seismic condition of the structure - as we wished to know if it could
collapse on our heads during a quake - scoffing “It’s technically too complex
for you to understand.” (Bureaucrats today use the same specious line on the
public about FOI reform).
The B.C. FOI law
came into force a year later, which made such a refusal impossible thereafter.
But it instilled in me a strong opposition to government secrecy from then
on. Later when I was with The Ubyssey
student newspaper, we waged and won a costly five year legal battle to view
the University of British Columbia’s exclusive marketing contract with
Cola-Cola - the same type of record that American colleges released without
FOI.
(Regarding
technology: I file requests by email now, but it may amuse those under age 35
to consider the 1990s pre-iphone era of BC FOI, when we used landline
push-button phones, pre-Windows big desktop tubescreen computers,
videocassettes. I would file FOI requests by printing them out on my 12-pin dot
matrix printer and sending them to Victoria by mail or via a grocery store’s
fax machine; and clip FOI stories from the subscription-based newspaper that
was dropped on my doorstep.)
BC FOI – Closed
for repairs
“For
the most part, officials love secrecy because it is a tool of power and
control,
not because the information they hold is particularly sensitive by nature.”
- Federal
Information Commissioner John Reid, Nov. 25, 1999
There are three
vitally needed reforms for British Columbia’s Freedom of Information and
Protection of Privacy Act. (I regret having to describe this dismal
situation at such length, but I only do so because it directly impairs the news
media’s ability to do their job.)
(1) FOIPP Act Section 13, policy advice and
recommendations, is being broadly overapplied, and is now used as an omnivorous
black hole that can swallow almost any record, and it expands every year. For
example, it enabled the Provincial Health Services Authority to withhold its
internal audits, and a ministry to black out 100 pages of facts on the human
health impacts of LNG.
The
flawed “Dr. Doe” court ruling of 2002 newly licensed officials to withhold all
“facts and analysis” that were used to help craft policy advice, which was not
the lawmakers’ intent. This ruling has created incalculable havoc for B.C. FOI applicants over the
past 17 years, as hundreds if not thousands of pages in the public interest
have been newly sealed. Ministerial briefing notes of the sort that were
released to me in full (with all facts and
“recommendations” open) before 2004 were by 2012 being mostly withheld under
Section 13.
One
can hardly overstate the spreading blight of Section 13, the FOI law’s
kryptonite, a blank cheque that I define as the Bureaucratic Interest Override.
This problem grows worse each year unchecked, and if we do not firmly correct
it, then the FOI law may eventually be rendered almost meaningless, a façade. Former NDP Attorney General Colin Gablemann, who had
introduced the FOIPP Act in 1992,
said in a 2007 speech:
There has been an incredibly astonishing perversion in the last few years of the plain language meaning of the [Section 13] words: "advice and recommendations." This has resulted in the reversal of the legislature's intent, as originally expressed in the legislature and in the Act. . . . A government which believes in freedom of information would have introduced amendments in the first session of the legislature after that Appeal Court decision to restore the act's intention. This is an outrage and must be remedied.
Very worrisome
is a comment from the premier while he was a candidate in the 2011 B.C. NDP
leadership race. The Vancouver Sun
reported (on February 11, 2011) that “Horgan
wrote that he supported some changes to the Act, such as making university
spinoff companies subject to FOI requests. But he was less enthusiastic about
reforming the Act's policy-advice exemption, saying it had ‘stood the test of
time.’” Wrongful practices
such as this are never legitimized merely by the passage of time. (If they were, then all the worst defunct features of the
past would have been retained instead of dropped.)
The Act urgently
needs to be amended to state that Section 13 cannot be applied for facts and
analysis, only for genuine advice. The section also needs a harms test, as in
Britain’s FOI law, wherein a policy advice record can be withheld only if
disclosing it could cause “serious” or “significant” harm to the deliberative
process.
(2)
Public bodies have been creating wholly-owned and controlled puppet
companies to perform many of their functions, and manage billions of dollars in
taxpayers' money, whilst claiming these companies are not covered by FOI laws
because they are private and independent – a form of pseudo-privatization, or
“information laundering.”
Two B.C. health
authorities are inexplicably FOI-exempt today: Providence Health and the First
Nations Health Authority. FOI-free companies owned by B.C. crown corporations
were related to two financial scandals of the 1990s: Hydrogate, and B.C.
Ferries’ $450-million fast-ferries loss. In Ottawa the Canadian Blood Agency
and the Nuclear Waste Agency are excluded from the federal FOI law.
More examples
are BC Hydro’s companies Powertech and Powerex. Worse, UBC Properties
Investments Ltd. has quietly built up a new mini-city on the 100 hecrates of
public land with no accountability, and high-priced condos for sale instead of
student rental housing, while students and residents have complained about its
secrecy (under its various names) for 30
years. In 1999 the government exempted the
Millennium SkyTrain project and Forest Renewal B.C. from the FOI law. Yet under most
of the world’s FOI statutes, any entity that is even half publicly-owned or
performs a “public function” must be
covered.
The Act needs
amendment to state that the its coverage extends to any institution that is
controlled by a public body; or performs a public function, and/or is vested
with public powers; or has a majority of its board members appointed by it; or
is 50 percent or more publicly funded; or is 50 percent or more publicly owned.
This includes public foundations and all crown corporations and all their
subsidiaries.
(3)
“Oral government” is a disaster for the public interest today. Here,
government officials do not create or preserve records of their decisions or
policy development, because they do not want such records to be made public
through the FOI process.
Ken Dobell, then
B.C. deputy premier and head of the provincial public service, frankly admitted
so, famously telling an FOI conference in 2003 that he ran the government via
informal meetings or telephone conversations, seldom keeping working notes of
either. He did make thorough use of e-mail but said “I delete those all the
time as fast as I can.” He added: “I don't put stuff on paper that I would have
15 years ago. The fallout is that a lot of history is not being written down.
Archivists of tomorrow will look for those kinds of things, and none of it will
be there. It will change our view of history.”
Indeed. (Similarly, the 2010
Olympic Games Secretariat simply stopped recording minutes of its meetings
after being peeved by my FOI requests for them, a thing that we
incomprehensibly permitted.)
The scandal of
the triple deletion of emails related to the missing women on the Highway of
Tears was expertly analyzed in the report Access Denied in 2015 by the
B.C. information commissioner Elizabeth Denham. Then former commissioner David
Loukidelis thoroughly reviewed the matter in a new report, with exemplary recommendations
for future record best practices - all of which should be implemented. The B.C.
FOIPP Act should be amended to add a duty for public bodies to document
key actions and decisions.
For now, the triptych of the policy advice exemption, subsidiary companies and oral government still holds sway in the British Columbian FOI field. This situation can produce troubling possibilities. For instance, under the current B.C. law, any future government could privatize or delegate a key health or environmental inspection task to a new FOI-excluded and so-called “private” company - which it nonetheless wholly owns and controls - and so its records could be locked away forever, with potentially disastrous results.
Even if covered,
that company could diligently avoid writing down vital information, as a means
of FOI-avoidance, per the deleterious growing drift to “oral government.”
Finally, even if records were created, then all the facts gathered to help
craft advice about the subject could be blacked out under Section 13. But this
grim prospect is avertable through the NDP’s 2017 promised law reforms. Even if
they insist that “trust us, we would never do those things,” this misses the
point: it cannot guarantee that a future regime of another political stripe
would not.
_______________
The Road Forward
Many impressive stories have been
done in the first quarter century of FOI in B.C., and overall they have surely
helped make this province a better place to live. But if we accept
our decrepit Canadian transparency laws and subverted processes, will we see
far fewer stories such as these? Or will we ensure improvements so as to make
it possible that the best is yet to come? The choice is ours. Although it may
appear a dystopian landscape for Canadian FOI journalism today, it is essential
to view this situation as neither necessary nor inevitable. Most FOI
misfortunes happen mainly because we permit them to happen.
This great
province needs to raise its FOI law up to accepted global standards; to do so,
B.C. legislators need not leap into the future but merely step into the
present. What could be more reasonable than that? Democracy is about choice, and the essence of
choice is informed choice, and without it our leaders cannot truly claim to
govern with the consent of the governed.
I ended The Vanishing Record with: “I do not
have a monopoly on the truth, nor does any other individual or institution. I
do not have all the answers, and most FOI advocates never expect to get everything
they want. But we can, and must, do far better. MLAs serve the public in their
way as the news media do in ours. Here you have an opportunity to create a fine
historical legacy for your constituents that will endure long after you depart
office.” This remains just as true today.
Let us continue
that fine legacy of the 1990s and build upon it. If you believe you should have
the right to view records on health and education, or crime and the
environment, or official spending and public safety - records whose production
you paid for, and which were presumably created for your benefit – then speak
out now, lest the government interpret the silence (rightly or wrongly) as
consent or indifference. The hour is late.
To ask the NDP
government to fulfill its FOI reform promises of April 27, 2017, you can phone
Premier John Horgan at 1-250-387-1715, or email him at premier@gov.bc.ca
______________
This project was made possible by support from
Thomas Crean, and the B.C. Freedom of Information
and
Privacy Association (FIPA)
I have tried to note FOI credits
wherever possible. If you have comments
or corrections, I welcome these
at stromp@telus.net
=========================
BC
FOI NEWS STORY INDEX - CATEGORIES
[1]
Govt. spending, public money
[2]
Public and worker safety
[3]
Child and youth care
[4]
Senior care
[5]
Animal welfare
[6]
Personal requests
[7]
The environment
[8]
Health care
[9]
Drugs, addictions, cannabis
[10]
Justice and policing
[11]
Prisons
[12]
Gambling, BC Lottery Corp.
[13]
Payments to individuals, and expenses
[14]
Forestry, fisheries, agriculture
[15]
Job creation, and labour Issues
[16]
Poverty, welfare
[17]
Education K-12
[18]
Higher education
[19]
Energy and BC Hydro
[20]
Political affairs
[21]
Transportation
[22]
Consumer protection
[23]
Local government
[24]
Other
FINE
EXAMPLES OF PUBLIC INTEREST BC FOI ARTICLES
● Chad Skelton of the Vancouver Sun produced public-searchable online databases of
inspection reports on daycares, long-term care homes, drug rehab centres and
group homes for the disabled.
● Under the $1-million B.C. government
screening program for people working with children, 217 persons were declared
"no-risk" who had criminal records for sexual assault, sexual
interference, living off the avails of child prostitution, indecent acts,
assault, kidnapping, and drug trafficking. The next day, the attorney general
ordered an investigation of the criminal records review panel. (Stewart Bell,
1997)
● Scores of educators who were disciplined by
their employers for misconduct remain members in good standing with the B.C.
College of Teachers, their records wiped clean. This includes sexual
interference with minors; slapping, shoving and punching students; consuming
alcohol during class; threatening and stalking colleagues; and accessing child
pornography on a school computer. (Janet Steffenhagen, 2011)
● The Vancouver
Sun obtained information
showing that children in the care of foster homes were suffering physical and
sexual abuse eventually leading to the closure of at least 14 homes because the
children-in-care were being abused. (Kim Pemberton, 1995)
● At least four mentally disabled residents of
Woodlands Institution were sterilized, according to internal documents obtained
by the Vancouver Sun. These also confirm
earlier Sun reports that some
mentally disabled residents were physically assaulted, verbally abused and
inhumanely treated while living at the provincial home for the mentally
disabled in New Westminster. (Kim Pemberton, 2002)
● In 2004, when the B.C. government lowered the
work start age to 12, the province became an outlier among developed states
around the world. Nowhere else are there so few restrictions on the type of
work children can do at such a young age. We know from interviews with children
and FOI requests to WorkSafeBC that children under 15 are working in B.C. and
some of them are getting hurt.
(Catherine Evans, Adrienne Montani, 2016)
● More than half of the 60 school districts in
British Columbia had unsafe levels of lead in drinking water sources in 2016
and early 2017. (Gordon Hoekstra, Lori
Culbert, 2017)
● A Bella Coola Valley man, criticized by provincial
conservation officers for failing to put up an electric fence to protect his
chickens, hunted down a mother grizzly bear before turning his sights on her
three newborn cubs. The man shot the mother first, then two of the cubs who
were run up a tree by his dogs, according to FOI documents involving cases in
2009 in which grizzlies were shot in supposed defence of people or property in
B.C. (Larry Pynn, 2010)
● Twenty horses died in as many months at Hastings
Racecourse in Vancouver due mainly to bone fractures, according to provincial
records. (Larry Pynn, 2011)
● B.C. dairy farm inspections reveal animal welfare breaches;
Overcrowding, tails accidentally torn off, dehorning without pain medication
among the findings at one in four B.C. dairy farms, FOI documents show. Issues revealed during routine inspections by
the B. C. Milk Marketing Board showed overcrowding, lame or soiled cattle,
tails accidentally torn off by machinery, branding and dehorning of calves
without pain medication. (Larry Pynn,
2016)
● A Surrey environmental group obtained through
FOI a draft report from the Boundary health unit which warned that the Money's
Mushroom composting plant was emitting potentially cancer-causing compounds.
(Larry Pynn, 1997)
● Four youths fell off the Screaming Eagle chairlift at Grouse
Mountain in one month. The B.C. Safety Authority, an independent agency of the
provincial government, calls such events "reportable incidents" and
recorded 228 of them over the past two seasons at downhill ski hills around
B.C. (Larry Pynn, 2008)
● British Columbia Coroners Service statistics
obtained through FOI note that at least 54 people have died on SkyTrain tracks
and platforms since 1985, yet there are no plans to erect barriers such as
other cities have. (Bob Mackin,
2008)
___________________________