Victoria must not copy B.C. Ferries' FOI scheme

Stanley Tromp, The Province, Vancouver, B.C., 13 Feb 2011

For the past 18 years, the B.C. news media have used the B.C. Freedom of Information and Protection of Privacy Act to obtain government records. I could cite hundreds of examples of such documents forming the basis for news stories in the public interest -articles on the mistreatment of persons in nursing homes and daycares, public-health risks, crime trends, hidden pollution and the gross misuse of taxpayer funds.

But if a new plan is enacted in Victoria, it could greatly reduce the flow of such stories. This provincewide proposal was inspired by several artful practices of the B.C. Ferries Corp., which last October was placed under the coverage of the FOI law over its intense opposition.

The problem is this: On its unique "FOI tracker" website, right after it finishes processing the requests, B.C. Ferries posts the records online and sends email notices to a listserv so that anyone can read them instantly. (In some cases, it has posted them even before the requester received them.)

B.C. Ferries claims it enacted its policy solely for the sake of "transparency," but I and most FOI users have not one iota of doubt that its main purpose is to dissuade people from making requests.

On the prospect of the core B.C. government following B.C. Ferries' practice, a spokeswoman for the Ministry of Citizen's Services confirmed to the Vancouver Sun: "It's something we're actively working on. It is imminent."

Anyone who understands the hotly competitive news industry knows that the effect of such a needless instant mass release is to scuttle the journalists' exclusive scoop, and thus simply wipe out their incentive to file FOI requests in the first place, which, in turn, would lead to fewer stories of the kind I cited above.

B.C. Ferries' practice also raises basic questions of fairness and civility. At times, much research goes into the formulation of a well-crafted FOI request, and all that labour would now count for nothing. Moreover, why should any applicant pay thousands of dollars in FOI fees only to lose all of the records' value when government sends it out to the world to co-opt the applicant?

For all these reasons, it follows that B.C. Ferries' practices clearly violate the "duty to assist requesters" mandate found in Sec. 6(1) of the statute.

The B.C. Freedom of Information and Privacy Association, FIPA, has already complained to the Information and Privacy Commissioner, who is investigating. (She told the Sun it would be "prudent" for Victoria to hold off on its plans until she issues her ruling on B.C. Ferries.)

What I am asking for is simple, fair, doable, and essential: When the government prepares to release records in response to an FOI applicant, it must allow that applicant exclusive access to those records for a minimum grace period of two weeks before it releases the records to anyone else, or for the world to read online. (Ideally it would be a four-week period, to accommodate writers at weekly or monthly magazines.)

An even better solution would be to replicate the former CAIRS system in Ottawa for federal Access to Information Act requests. After a two-or three-month pause after release to the applicant, some departments posted just the topic headings online, instead of the full documents, and new applicants could make a new, cost-free, expedited request for those already released records. The Department of National Defence still follows this best practice, which could be a model for B.C.

But if the B.C. government chooses to duplicate B.C. Ferries' spiteful FOI practices, this choice would backfire upon it in at least four ways.

First, it would create continuous bad-will, mistrust and conflict between the agency and applicants, including costly appeals and court actions on the failed "duty to assist."

Secondly, when B.C. Ferries began emailing records to all media -instead of letting the applicant alone process it for a day or two -it created a frenzy among some journalists to beat the online news competition by a few minutes. Inevitably, this can -and already has -lead to serious errors spread throughout the world, which is in nobody's interest, and it also gives the agency no time to explain its side before the story runs.

Third, the founders of WikiLeaks -the state's anarchic nightmare where record release is totally unpredictable and uncontrolled -said they needed to create that website partly to compensate for failed FOI systems. If Victoria undermines the FOI process in any way, it only makes leaking documents more compelling.

Fourth, why should agencies waste time and public funds to PDF-scan and send out thousands of pages, many of them arcane and unimportant to anybody but one academic?

So to the B.C. government I plead: Please don't make a grievous mistake. Let B.C. Ferries' FOI branch sail dizzily around in its own realm.

For the public interest, don't follow its nautical route into the fog and the darkness and onto the reefs below.

Stanley Tromp is a freelance news reporter based in Vancouver.