De Jong plan would impair scrutiny of government

Stanley Tromp, The Province; Vancouver, B.C., 13 May 2016:

On Monday, Finance Minister Mike de Jong announced a batch of modest yet welcome improvements to the B.C. Freedom of Information and Protection of Privacy Act. Little noticed during the celebrations was a landmine tucked into his directive, one that could cancel all the progress.

Later this month, he said, Victoria will start publishing active (that is, not closed) FOI requests, in the interests of "more transparency."

To accept this claim would be extremely naive. Many applicants have no doubt that the real goal is to dissuade people from filing requests, particularly journalists who would lose their exclusives and so stop using the FOI system.

Governments are all too aware of competition between media outlets and posting uncompleted FOIs is rather like compelling newsrooms to broadcast their internal story plans to the world. That would allow other outlets to lazily freeload off their upcoming work and scoop them.

Many believe, as I do, that the policy was likely designed to stifle freelance reporter Bob Mackin, author of many FOI-based stories sharply critical of de Jong. Yet as lawyers say, "Hard cases make bad law."

You may ask why the public should care about this? Governments often scoff that FOI dynamics are "inside baseball," too arcane for the public. But that isn't true because hundreds of news stories on public health, safety, waste and wrongdoing have been made possible by FOI and these stories could now go untold.

Other FOI applicants will also be undermined, such as law firms, businesses, academics and advocacy groups. As Jordan Bateman of the Canadian Taxpayers Federation said, "This is a swipe at people who use FOI, and it will give political appointees and elected officials opportunities to try to hide material from reporters and advocacy groups they don't like." Vincent Gogolek of the B.C. Freedom of Information and Privacy Association made the same point.

Lawyer David Sutherland noted that when law firms use FOI requests in aid of litigation, these are a privileged part of a solicitor's brief, to be kept secret from the other side. "Public posting will alter the balance or, more likely, cause law firms to disguise their identity by using agents," he said. "That would achieve nothing but ineffective complexity."

In 2011, information commissioner Elizabeth Denham reviewed B.C. Ferries' practice of publishing responses to FOI requests at the same time they were sent to applicants. She concluded that it "frustrates the purposes" of the act because it may discourage people from filing requests. The same is true for de Jong's directive, yet its impacts would be far worse.

It also displays scorn for the principle of consultation on a change that could impair countless FOI applicants and it is noteworthy that this is the first time in B.C. that a minister has issued directives under the act.

A legislative committee had studied needed reforms to the act for many months and reported on May 11. Yet de Jong autocratically chose not to inform it of this change so it could be discussed, nor wait for its report nor even inform the information commissioner, who is now studying the directive for "unintended consequences."

What is de Jong's defence of the plan? "The idea is that people who have made a request are able to go online and know with certainty that their application hasn't got lost somewhere, hasn't got misplaced, but it's actually been registered and it's in the system and being tracked," he said.

But if applicants want to check on their request's progress, they can simply call or email the FOI analyst, as they do now. As well, applicants' access to the tracking database could be password-protected and limited to their requests.

"This summary is designed to create somewhat more open pressure on the government to meet deadlines," the minister added. Yet this can be accomplished by statistical reporting in the commissioner's reports and many other means.

In sum, de Jong needs to listen to FOI experts before unilaterally launching this deplorable practice, which occurs nowhere else in Canada and may violate applicants' privacy rights. It has not yet begun and there is still time to stop it. People can call or write to the commissioner's review.

Much is at stake.