Freedom-of-information system quietly closing

Stanley Tromp, The Province; Vancouver, B.C., 21 Oct 2016

For the past decade, B.C. freedom-of-information advocates have been raising the alarm over a spreading threat to government openness.

Section 13 of the B.C. Freedom of Information and Protection of Privacy Act allows the government to seal records of "policy advice or recommendations developed by a public body or for a minister." The problem is that public bodies are applying the section too widely to include "facts and analysis" that were used to create that advice.

Yet almost any information could be labelled facts or analysis. That means there is nothing to stop agencies from using Section 13 to virtually shut down the FOI system. We are moving in that direction and the public has already lost access to countless records on health, safety, waste and wrongdoing.

This misuse has also spiralled out of control in Ottawa, where the policy advice exemption in the Access to Information Act was applied about 10,000 times last year.

In May, I applied to the Natural Gas Development Ministry for records on the health impacts of liquefied natural gas. One hundred pages came back fully blanked out under Section 13.

Yet the worst example comes from the Provincial Health Services Authority, a body that oversees the B.C. Cancer Agency and the B.C. Centre for Disease Control with a $2-billion annual budget.

In 2011, I requested five internal audits and the PHSA refused under Section 13. I appealed to the B.C. Information Commissioner's office, which ordered most of the records released. The PHSA then appealed in B.C. Supreme Court to overturn the order, spending $149,535 of taxpayers' money on legal bills. Madame Justice Jane Dardi ruled in favour of the PHSA and this became a precedent for other agencies to withhold records.

What is in those audits? We can only wonder. (Premier Christy Clark and Health Minister Terry Lake could call upon the PHSA to release the audits.)

The B.C. Court of Appeal set a dangerous precedent in 2004 when it ruled on an FOI dispute: The 'Dr. Doe' case of the B.C. College of Physicians and Surgeons. The court said Section 13 was not limited to recommendations. Instead, the investigation and gathering of facts also could be sealed, whether or not any decision was advised. Government lawyers had pulled off a legal coup with ingenious arguments that facts implicitly prompt a policy direction and that the two are "interwoven." This interpretation was later confirmed in a Supreme Court of Canada case.

Officials now use Section 13 in practice to close off access to information. While the act's Section 25 is known as the Public Interest Override, I would describe the self-serving Section 13 as the Bureaucratic Interest Override that is being applied hundreds of times more often than Section 25.

Colin Gablemann, the former B.C. attorney-general who helped pass the freedom-of-information law in 1992, said of the 'Dr. Doe' ruling: "The Appeal Court quite simply failed to understand the intention of the legislature when using these words as we did." He urged cabinet to amend Section 13 "to restore the Act's intention."

The solution is clear. First, amend Section 13 so that facts and analysis cannot be withheld as policy. Second, as the British law does - per the world FOI standard - add a harms test whereby policy records can only be sealed if releasing them could inhibit the frank internal exchange of views. The Information Commissioner, the B.C. legislative FOI reviews and most FOI experts have long urged cabinet to pass such amendments, to no avail.

Section 13 is discretionary, meaning agencies can - but not must - withhold records. In contrast to the PHSA, all the other B.C. health authorities did not claim it and released their audits. Vancouver city hall posts its audits online.

To the public, this issue may appear to be a dry and obscure point of administrative law, and so falls under the radar, which is how the government prefers it. Yet the potential of Section 13 to quietly shut down the B.C. FOI system cannot be overstated.

That should concern all of us.