The B.C. legislature is finally ready to come back, and the Liberal government will hopefully be using the Speech from the Throne to announce a long list of important amendments to the Freedom of Information and Protection of Privacy Act.
These amendments have been suggested to address major problems over the past three years by Information and Privacy Commissioner Elizabeth Denham, but as yet we have seen no action from the government.
Most recently, she supported a complaint by B.C. Freedom Of Information And Privacy Association (FIPA)fi and the UVic Environmental Law Clinic into the failure of government to carry out their duty under s.25 of the Act and release information in the public interest. She also called for the government to "amend s. 25(1)(b) to require proactive disclosure where it is clearly in the public interest" without the requirement that it be urgent or timely As for timing, Denham said "I urge government to amend s. 25(1)(b) of FIPPA at the earliest opportunity."
"The earliest opportunity" has now arrived. Will the government do the right thing? The record is not promising, as a quick review illustrates.
Earlier in 2013, the commissioner found widespread use of private email, unrecorded meetings and improper destruction of documents as part of a spreading "oral government" To combat this she called for a "duty to document" to be included in law. Unfortunately, the government's response was to claim that the question was complicated, and they had no intention of doing anything before the next review of the Act in 2016.
Back in 2011, Denham wrote to then Minister of Citizens Services Margaret MacDiarmid to ask that she amend the Freedom of Information and Protection of Privacy Act to address what she called "an accountability gap" by including the subsidiary corporations of universities, colleges and other public bodies in the Act.
She ended her letter to the minister with a call to action: "It is vital for open and accountable government that, whatever the form of the entity, if it is carrying on public business, it should be subject to FIPPA."
Two and a half years later, there is still no sign of action from the government.
This persistent failure to respond to serious and necessary recommendations from the information and privacy commissioner reflects badly on the government, but the commissioner must also bear some responsibility. She has been remarkably silent in the face of the government ignoring her serious and well considered proposals, and that has to change if her recommendations are to ever see the light of day as legislation.
Of course there is also the risk of the government actually moving in the opposite direction. In 2012 transparency took a blow when the Newfoundland and Labrador government gutted that province's Access to Information Act. The provisions related to the release of third party information were changed so that what had been a three-part test to keep records from being released (as it is in B.C.) became a one out of three test, making it that much easier to avoid releasing records.
This sacrifice of transparency is being justified through the rhetoric of innovation. At a conference last fall, a senior B.C. government official spoke of the need to re-examine "the balance between innovation and transparency."
This official works at the ministry of Technology, Innovation and Citizens Services; formerly named Citizens Services and Open Government. Given this change in priorities around information rights, it is becoming ever more apparent that the name change of the ministry may be more than cosmetic.