¶ On October 18 the B.C. NDP government introduced Bill 22, so as to amend the Freedom of Information and Protection of Privacy Act. This Bill is by far the most boldest assault on the public’s right to know and its privacy rights ever seen in this province, cynically trashing the fine legacy of NDP premier Mike Harcourt, who passed the FOIPP Act in 1992.
Its most contentious feature is to newly permit government to charge people an application fee for filing FOI requests. Any amount, such as $25, could be set later in regulations.
There are many other pernicious features in Bill 22, as well detailed by B.C. information and privacy commissioner Michael McEvoy. These include expanding powers to ignore requests deemed to be frivolous or repetitive, eliminating requirements for personal information to be stored on servers in Canada, and exempting the Premier’s Office from FOI requests.
While McEvoy retains the authority to waive all the other fees under FOI in the public interest, Bill 22 specifically exempts him from touching the new application fee.
One Liberal MLA astutely noted that the $25 fee uproar might be a bright red herring, calculated by the NDP to distract the public from the rest of the bill. If so, we had best not fall into such a trap, and focus on the big picture instead.
But perhaps even more pernicious than the Bill’s content is its process. The NDP know that by law the FOIPP Act must reviewed by a legislative committee every six years, the last occurring in 2015. This one, chaired by NDP MLA Rick Glumac, is due to meet late this year or early 2022. Bill 22 is being rushed into law as a kind of pre-emptive subversion of it, the member MLAs disregarded as irrelevant, and the many people who present their submissions implicitly insulted, their opinions scorned as worthless.
On full display is the dizzying hypocrisy of NDP ministers who made names for themselves by extracting records of government wrongdoing via FOI, rode these ensuing scandals into power, and then reversed 180 degrees.
Internally, the government has blamed a backlog on the Opposition BC Liberals, which it says filed more than 4,000 FOI requests in the last year, costing the system $13 million, as well as journalist Bob Mackin, whom the NDP says made 397 applications that year (which he denies), for about $1.2 million.
The $25 figure is a proposal by Citizens’ Services Minister Lisa Beare, who described it as “modest” and “in the middle, somewhere between $5 and $50.” That is false. While half the provinces in Canada have some application fee, none charges $50, and I asked the ministry who else in the world does so. It replied with the only example it had, that of Alberta’s $50 so-called “continuing request.” (This is a kind of continual open request, e.g., a one-time request to receive an agency’s internal audits every quarter year into foreseeable future; it is not the B.C. sort of “initial request,” as apples are unlike oranges.)
Only Alberta and Nunavut charge $25, with Ontario’s and the federal access system set at $5. NDP minister and onetime FOI advocate Murray Rankin objected to that $5 federal fee as “a tollgate on citizens’ right to access,” but has fallen silent today.
If the fee was intended to constrain Mackin, it is grossly unjust to penalize everyone else, for as lawyers say: “Hard cases make bad law.” Moreover, Liberal party caucus members would simply pay FOI fees with public money, and so it would not stop them from applying.
I asked David Cuillier, president of the U.S. National Freedom of Information Coalition, about the fee. “That is the worst FOI thing I’ve seen proposed anywhere in a long time,” he replied. “Clearly, $25 differentially hurts the poor, widening the information gap in our society. Not only is the idea deviant but it is also morally bankrupt.” He has also never heard of an FOI application fee in any American state.
Yet FOI costs could be greatly reduced by releasing records routinely. “Why does this government constantly tell me to file an FOI request for simple things, like names of contractors and values of contracts?” asks Mackin. “Why aren’t they proactively publishing contracts, reports, briefing notes and polling data?” B.C opposition parties often request the same things.
Many such items must be regularly published in Ottawa under the federal access law, and the same should be done here. If it was, Mackin estimates that he could make fewer FOI requests, “maybe as much as three-quarters fewer,” depending on the “how” and “when” of releases. He adds: “I make no apologies for filing so many applications; the lion’s share are about the health and economic impacts of the pandemic.”
Two years ago I had vague forebodings of such an attack on B.C. FOI journalism (but not half as extreme), and of the government belittling its public value. So I created and posted a database of 2,000+ vital news stories produced via the B.C. FOI law – viewable at my website: https://canadafoi.ca/british-columbia-foi/ – on health, safety, the environment, financial waste, and much more. If a $25 fee had been in force since 1993, surely more than half of those stories could never have been done. With cash-starved newsrooms today, this river might run almost dry, which is likely the NDP’s intent.
Beyond these cases, we need to focus on the average citizen users, who could least afford fees and would be most harmed, the innocents caught in this political crossfire. These include low-income groups of parents, or health and environmental activists, or consumer advocates.
We too often forget the public paid for the production of these records, and so they are for that reason as much the public’s property as are roads, schools, and bridges. The public hence should not have to pay for their production twice, through FOI fees.
So what can we do? The NDP, with its House majority, might pass Bill 22 into law within a week or two. Yet the commissioner is positive the NDP can be persuaded to back off the worst parts of the bill. “I don’t think it’s a done deal at all,” he told CKNW radio.
We may take encouragement from the great Newfoundland FOI rebellion of 2012, whereby the public of that province held rallies on the legislature lawn to protest an appalling reform bill that which would have eviscerated its access law. Then, as now in B.C., the government brazenly claimed that its regressions would actually “improve” the FOI system.
After the Newfoundland premier stepped down amidst rock-bottom approval ratings, a new premier from the same party appointed a panel to review the law. This commission even wrote draft legislation of its own, which the government adopted directly in an exemplary new act in 2015 (a worthy example for B.C.). In the process Newfoundland transformed what might have been Canada’s worst FOI law into the nation’s best.
Here in B.C., Liberal Attorney General Mike De Jong introduced two repugnant secrecy bills in 2006, yet backed off after public outrage. In a surprise move, and citing concerns that were raised, he decided to defer the bills indefinitely, a move that was greeted with applause in the House. Let this history repeat itself.
Vaughn Palmer had it right: “The New Democrats should finish the job McEvoy started, feed the entire bill into one of their shredders, and start again.” It is essential to defer all FOI law reform until after the Glumac committee reports, and then consider its expert guidance.
Indeed, why not pass a B.C. FOI and privacy law that is a cause for pride instead of shame?
