03/04/2013 04:29 EST | Updated 05/04/2013 05:12 EDT

BC Liberal Government Records Missing, FOI Requests Jump: Report


VICTORIA - British Columbia's information watchdog has found the Liberal government isn't documenting some key decisions, allowing it to avoid public scrutiny under freedom of information laws.

An investigation by the privacy commissioner has counted fewer records kept by the premier's office, prompting her to urge the province to change its ways — even as the government suggests it may not examine the issue for several years.

A report released Monday by Information and Privacy Commissioner Elizabeth Denham said that while the Liberals are complying with FOI laws to assist the public, they have also shown "evidence of the practice of 'oral government.'"

"Without a duty to document, government can effectively avoid disclosure and public scrutiny as to the basis and reasons for its actions," Denham said in her report.

"The lack of documentation undermines the ability of citizens, journalists and the public to understand the basis for government’s actions on any particular matter."

The review, prompted by complaints, found that 45 per cent of all requests to Premier Christy Clark's office last year failed to find a paper trail of any kind.

In particular, Denham pointed to several complaints from journalists when requests for information on the resignation last September of Clark's chief of staff, Ken Boessenkool, failed to turn up a single document.

Boessenkool resigned with a letter of apology after a two-week investigation into an alleged "incident of concern," and at the time Clark insisted privacy laws prevented her from disclosing details about what happened.

"The premier's office made very clear representations to me that any records that could have been created could have been transitory and destroyed, or they conducted interviews verbally and by phone and didn't create records," Denham said in an interview.

However, the Open Government Ministry said the number of FOI requests to the premier's office that have received responsive records has jumped by 197 per cent over the past three years.

Across government, the investigation found that no records turned up for 25 per cent of all requests last year, doubling from 13 per cent four years ago.

"I haven't found a smoking gun or one particular issue," she said when asked how she accounts for the rise.

One of the major explanations could be logistical. Even before Clark took office, there was a centralization of how freedom of information requests are received, via one online portal where an individual can easily request checks of multiple ministries.

The government noted, in its own review, that a retroactive analysis indicates that had the centralization not occurred, the rate of no responsive records might have increased by as little as three per cent.

The investigation found centralization has, in fact, improved the request process for applicants with regards to cross-ministry requests.

Denham issues six recommendations aimed at improving the system, five of which the government said it is willing to adopt.

However, the government appears likely to let stall her key suggestion for the province to change FOI laws and legislate a "duty to document."

Kim Henderson, deputy minister for the Ministry of Open Government, replied to the commissioner in a letter saying that while the government will "examine this recommendation," it will also suggest it go to a special committee for consideration.

"I note that no other access to information legislation in Canada has such a duty prescribed in law," Henderson said in the letter.

Denham said that committee meets only every five years and won't undertake any work again until 2016.

"I think that's a very long time away," she said.

The premier's office did not respond to requests for comment.

The BC Freedom of Information and Privacy Association, which filed a complaint with the commissioner, said the report confirmed what it already suspected.

"We support the Commissioner’s call for law reform that would require government to produce written records,” said Vincent Gogolek, executive director.

"But we don't understand how she can say the government is meeting its legal duty to assist requesters in some of the incidents her investigators have uncovered. That part of the report is certainly a disappointment to us."

Clark widely promised to "rebuild trust" with a more open government after she took office in spring 2011.

Denham also said she will decide in the coming days whether she should take further action regarding a memo that has most recently landed the premier in trouble.

The leaked memo outlined a plan to target ethnic voters and has erupted into a political firestorm. Denham noted the 17-page document was distributed by private emails, which by law should fall under the purview of FOI laws.

— By Tamsyn Burgmann in Vancouver

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