After completing a 2015 investigation, Information and Privacy Commissioner Elizabeth Denham excoriated Christy Clark’s Liberal government for undermining access to information laws.
In her report, Commissioner Denham stated:
Access to information rights can only exist when public bodies create the conditions for those rights to be exercised. Government must promote a culture of access, from executive leadership to front-line employees. If they fail to meet this obligation, the access to information process is rendered ineffective.
The BC NDP was outraged and blamed Premier Clark for treating public information as private property of the ruling party.
John Horgan, Hansard, 2015, Page 8857:
Over the course of this spring session we’ve been asking the [Liberal] government about how they’re managing public records. We’ve been asking repeatedly why it is that when we put in freedom-of-information requests, we continue to get “no record” replies.
In fact, we asked the Minister of Citizens’ Services 18 times why it was that political staff continued to ignore documents or perhaps destroy documents so that they could continue to produce these no record responses.
John Horgan, Hansard, 2015, Page 9783:
Last week the Privacy Commissioner, Elizabeth Denham, issued what could only be described as a scathing report into the evasive and deceptive activities of the B.C. Liberal government…
What’s truly reprehensible — beyond the obvious of the government believing that they own information of British Columbia, not the people of British Columbia — and what’s truly despicable is the character assassination that was undertaken by the B.C. Liberal Party, by the B.C. Liberal caucus and by the B.C. Liberal Premier with respect to Mr. Tim Duncan.
That was then. What follows is now.
On June 11, 2021, The Special Committee to Review the Freedom of Information and Protection of Privacy Act was appointed purportedly for Legislators to conduct a comprehensive review. Chaired by Rick Glumac, the committee of eight MLAs seated five members of the NDP.
Without waiting for recommendations of the Special Committee, the Horgan government introduced Bill 22 in October 2021, proposing controversial amendments to the Act. Reaction from critics was quick and harsh. A seven-page public response was issued by Michael McEvoy, Information and Privacy Commissioner for British Columbia.
Commissioner McEvoy was troubled by several proposed changes:
I write regarding the proposed amendments to the Freedom of Information and Protection of Privacy Act (FIPPA), several of which are of deep concern…
An overriding concern with Bill 22 is the unknown impact of key amendments because their substance will only be filled in through regulations, about which we know nothing. This is of greatest concern in relation to the proposed repeal of the data residency requirements…
I was encouraged to see changes enabling the addition of subsidiary corporations and other entities as public bodies. I am concerned, however, that this would be achieved by the Minister, using a discretionary order-making power to add an entity if the Minister concludes it is in the public interest. There are no criteria governing when this should be done. The recent concern about InBC investment corporation not being made subject to FIPPA—as it clearly ought to be—is an example of why this change does not go far enough…
I am very concerned that Bill 22 would remove the Office of the Premier as a public body under Schedule 2 of FIPPA…
The Office of the Premier lies at the heart of provincial governance. I call on the government to delete this proposal from Bill 22, for greater certainty that FIPPA’s transparency and accountability provisions will continue to apply, as they have for decades, to the Office of the Premier…
Another significant concern is that the right of access under FIPPA would no longer apply to certain electronic records, a change that would in turn limit public bodies’ duty to create records from electronic records…
I am also deeply concerned that excluding a record of metadata will hinder the interests of transparency and accountability. Metadata associated with a record can, for example, enable useful analysis of how particular records have evolved over time…
Bill 22 would authorize the government to impose application fees for access to information requests, fees that could be charged by all types of public bodies. This would be a significant step in the wrong direction. Application fees pose a real barrier for many who seek information that should be readily available to the public. I am unable to understand how this amendment improves accountability and transparency when it comes to public bodies that operate in a free and democratic society...
To add another barrier of access at a time when transparency is critical is deeply troubling…
FIPPA provides for periodic review of the statute by an all-party Special Committee of the Legislative Assembly. Several of these have been concluded and many, many useful and important recommendations have been made by these Special Committees, the latest of which has been appointed.
It is not at all clear why government has chosen to move forward with amendments ahead of the Special Committee’s legislated work to review the Act.
The work of the Special Committee is essential, as it is able to pull information and consultations from a variety of sources, encouraging fulsome public dialogue about proposed amendments. I have to question how meaningful the first substantive amendments to the Act in over a decade can be when there is no time for all stakeholders to provide dialogue.
To move forward with these amendments, in a year that the Special Committee is tasked to do this work, is baffling...
The NDP government’s decision to pass amendments to the Freedom of Information and Protection of Privacy Act while the Special Committee was reviewing it, compromised the work of that group.
During John Horgan’s time as Premier, caucus discipline has been strict. There was zero chance that five NDP backbenchers were going to state anything contrary to positions already taken by leadership. By statute, a comprehensive review of the Act is required at least once every six years. Cabinet’s decision to enact changes prior to the Special Committee’s review made work of the backbenchers a nullity. The committee admitted that in the Executive Summary of its report:
A particular challenge that Members grappled with was the timing of recent changes to the Act, and the impact this had on the Special Committee’s review process. In October 2021, government introduced significant amendments to the Act that received Royal Assent on November 25, 2021. Members expressed differing views on how to approach some of the recent amendments, and therefore chose not to make recommendations in those specific areas. (Emphasis added)
Within the boiler plate and bafflegab of the committee’s 44-page report, we find high-minded statements. But those are impossible to take seriously since cabinet had already ignored the panel of MLAs, disrespected the Information & Privacy Commissioner, and enacted amendments contrary to advice from people independent of the Horgan administration.
The Special Committee of 2022 supported recommendations made by the review panel of 2016. These were not implemented in the intervening years and, with new suggestions, will not become effective in the future unless the Premier’s office decides there is no potential for political harm.
A Vaughn Palmer column was headlined Horgan attacks public access to government information. The long-time political columnist wrote:
Adding to current suspicions, the New Democrats made what they claimed was a technical change to remove “the office of the premier” from the specific list of bodies covered by the Act.
In short, you don’t need a trail of breadcrumbs to follow this assault on access to information back to the source.
Who decided to take the “free” out of “freedom of information” in B.C.?
Premier John Horgan, of course.
Regardless of what government backbenchers believe privately, they will conform to directions and talking points issued by party leadership. To act other than as political eunuchs in public would limit or end their political careers.
This Special Committee to Review the Freedom of Information and Protection of Privacy Act proves that what happens in the BC Legislature today is theatre. Expensive theatre. We are not governed by elected representatives; we are ruled by the individual chosen as Premier and the people surrounding that first minister.