Officially ridiculous

By Gerry Bliss and Brad Densmore, April 2013

In BC, two decades post-FIPPA, it’s harder to get government information than it was before the legislation came into force.

When the Freedom of Information and Protection of Privacy Act (FIPPA) was introduced in 1993, BC was at the leading edge of citizen access to government information. Architects of transparency and accountability legislation around the world had a vision of better educated citizens, the press holding government accountable for its policies and actions, and legislators bringing the light of day into the public service.

In fact, there hasn’t been a major political party in Canada in the last 30 years without a formally stated commitment to transparency and strengthening public access to government information. People today have every reason to expect to be able to get any information they need to be informed citizens and stakeholders of government services. 

But something went wrong.

In BC, two decades post-FIPPA, it is harder to get government information than it was before the legislation came into force. Funding cutbacks have reduced the number and content of published reports. Special reports are no longer published. Information technology, instead of improving public access, is used to do an end-run around it: intentionally writing documents a certain way in order to be covered under FIPPA exemptions, using instant messages or phone calls, or even using personal emails outside of the reach of FIPPA. Information Access Operations, the department responsible for upholding FIPPA for most of the public service, recently issued an RFP looking for IT solutions that would help them handle an ever-increasing volume of FOI requests—admitting that their current model is “not sustainable.” 

To find out more about the consequences of FIPPA’s devolution, we went to the main users of government information. We talked with legislators who oversee governance of the province, and surveyed BC journalists who keep the public interest on their mind. 

As a former cabinet minister and current Independent MLA, John van Dongen has had a lot of experience on both sides of FIPPA. “This legislation was drafted to ensure due process when the public seeks information from the government. However,” he admits, “the source of the information can ensure practices are followed that limit the amount of information available.” 

MLA Vicki Huntington, elected as an independent in 2009, worries that these practices feed an adversarial culture among government staff who often prevent MLAs and journalists from doing their jobs. “As an MLA, it is my job to delve into issues that matter to my constituents. To be effective legislators, we rely on access to the bureaucracy. Our ability to ask how our tax dollars are being spent—and receive a timely and knowledgeable response—is directly proportional to how much influence we have on government decision-making.”

However, when Huntington, or any other opposition MLA submits an inquiry to a government ministry, current government practice mandates that they are only to be handled by political staff in the ministry—staff who carefully vet and spin responses that can be delayed for months. “Civil servants are afraid of repercussions if they candidly discuss any aspect of their work. It’s a form of muzzling, and it ultimately undermines democracy by keeping BC residents and their elected representatives in the dark about how their government works for them and how their tax dollars are spent,” said Huntington. “When you have to go through a minister’s office to get a map otherwise available to the public, censorship is a reality and it is out of control.”

BC’s first Information and Privacy Commissioner and world-renowned architect of FIPPA legislation, David Flaherty, says the extent to which FIPPA access requests have become relied on was never even imagined in 1993. “It was never conceived that parliamentarians would have to use FIPPA to access the information they need to do their jobs.”

Today legislators like Huntington are, unfortunately, some of the primary users of FIPPA access to information provisions. These documents are then censored according to exemption criteria such as personal privacy and legal advice to government. 

Journalists have similarly complained of censored and delayed access. In one case, a Vancouver Sun FOI request for a warehoused HST brochure printed for the entire province was rejected under Section 13, “advice to the Minister.” Vancouver Sun reporter Jonathan Fowlie eventually appealed the frivolous use of Section 13, and won—but many journalists don’t bother, or are turned off by potential legal costs. 

Some journalists go to Vincent Gogolek, executive director of the non-profit BC Freedom of Information and Privacy Association, which regularly takes government to court over information disclosure. Gogolek said while FIPPA is a “good framework,” he feels the process is not working well, and many responses, such as the one the Sun received, are “officially ridiculous.” And despite the intention of the Act, people are increasingly relying on FIPPA to understand the actions of the same civil servants they used to have access to. One journalist surveyed in our recent online survey of BC journalists, commented: “The major change I’ve noticed during my career (15+ years) is the move away from letting knowledgeable government staff speak and towards the use of designated spokespeople, usually an elected representative (who may not have direct practical or technical knowledge of the area in question). A designated spokesperson is also more likely to provide a canned or scripted response, or in lieu of that one person’s availability, a vetted and scripted response may be provided. This further reduces the chance of dynamic, responsive comment to specific questions…”

“It’s a waste of everybody’s time, and a waste of public resources,” Gogolek said. He also said that one of the worst offences by government is their failure to document—a duty only loosely alluded to in Section 71 of FIPPA. As evidenced by the recent leak of a controversial multicultural outreach strategy distributed via private email accounts out of reach of FIPPA, civil servants are simply not documenting their work in many cases, further frustrating the process. “The numbers [of non-responsive requests] have been going up, from ten per cent to almost a quarter,” Gogolek added, echoing the message of Elizabeth Denham’s May 4 Conflict of Interest Commissioner Report, stating government should be obligated to document decision-making and respond in “a more open, accurate and complete manner.”

The large majority of journalists responding to our online survey contacted government at least weekly for information, and reported little success with the BC FOI process—or its federal government counterpart. Wrote one: “I’ve had many successful [FOI] requests in the past. But in recent years, these requests get tied down in bureaucracy, so I’ve stopped filing them for the most part. There’s no point…[and]the highly sensitive requests take more time to process…” 

Redaction and “non-responsive records” were other frequently cited issues in the survey: “[We requested] information from the provincial bee expert into the reasons why a ban on transporting bees to and from Vancouver Island was lifted. Redacted documents shed no light, but there had to be reasons.” 

Other journalists commented on how financial considerations work to limit access: “I can’t even find out how much the government spends on advertising in individual media outlets because of high fees.” Another on this topic explained: “I’ve had requests where a Crown corporation appealed a decision [to supply documents] and I was advised that I would ‘win’ the information if I pursued it, but we simply didn’t have the money for legal time.”

Yet others commented on the arbitrariness that sometimes is apparent: “The City of Vancouver’s FOI office doesn’t examine records. It takes [a staffer’s] word for it. A request that was refused on the basis of no information turned up information when someone else made a similar request. Another time, the City withheld information to me that it provided to someone else.”

If MLAs and professional information gatherers like journalists have serious problems getting access to government information, what hope is there for public awareness?

Sean Holman, assistant professor of journalism at Mount Royal University—who broke countless stories on the BC government that led to policy changes and reversals—admits, “I am not hopeful at all. The problem is that people feel they don’t have influence in government, so they have given up on paying attention to what happens in government between elections.” Holman’s experience working in government communications (prior to six years of BC political reporting) gave him the insight that let him rely on a network of contacts used for many of his stories. “[W]hen I was working in government, we would arrange interviews between journalists and bureaucrats to give you a more detailed understanding of what was going on. Now, those interviews aren’t allowed and you have a population of civil servants who might not even think of speaking out.”

When surveyed journalists were asked for suggestions on how to improve the system, we heard about both cultural and legislative changes. One journalist noted “a mindset amongst government staffers that they need to hide information from the FOI process…Nothing will change until that mindset changes.”

Another suggested: “Pass a law like in some US states, that government info is public info, unless otherwise specified. Not the reverse, like it is here, [where] everything is secret unless otherwise specified. [Create] some penalties for staff and agencies that repeatedly get failing grades on information responses. Putting an external agency in charge of FOI/ATIP staff, rather than having them being employees of the agency you’re requesting information from…”

Many changes to FIPPA are needed: A “duty to document” needs to be incorporated. Bureaucrats need to be trained and authorized to speak about their day-to-day work. Resources need to be devoted to opening up government records, rather than funding an expanding hunt-and-censor bureaucracy. When redactions must occur to protect the public interest, censorship reasoning should be transparent. While the current government culture is geared towards crafting documents in secret, and obsessed with controlling the message via public affairs departments, this does not have to be the case. 

But until sweeping changes are made, the current costly and cumbersome information access bureaucracy will continue. Holman warns: “Canadians do not know or fully appreciate how restrictive or allergic government in this country is to public access to information. We quite literally do not know what we are missing.”

This article and survey is part of Independent MLA Vicki Huntington’s program to improve information access in BC. Gerry Bliss is an Information and Privacy consultant with Bliss Informatics who has provided professional services pro bono to Ms Huntington. Brad Densmore is a Research and Communications Officer for Vicki Huntington.