The spring session of the B.C. Legislature has just wrapped up with a bang.
The NDP released a letter from a former Liberal executive assistant to the minister of transportation alleging that he was ordered to delete dozens of emails related to the Highway of Tears consultation that were being requested through a freedom of Information request.
Information and Privacy Commissioner Elizabeth Denham has said she is now "determining next steps in an investigation" into this case under the Freedom of Information and Protection of Privacy Act (FIPPA). However it is unclear what, if any, penalty those responsible for these deletions could face.
FIPPA imposes a duty on public bodies to assist requesters, and Section 74(1) of the Act holds that a person who willfully "obstruct[s] the commissioner or another person in the performance of the duties, power or functions of the commissioner or other person under this Act" faces a fine of up to $5,000.
We will have to wait to see if this section could be used to charge those responsible for any deliberate deletions of requested emails.
Unfortunately, this case is symbolic of a spring session that was full of blows to information rights in B.C. Changing the law to make sure nobody is able to be held legally responsible for their actions in misusing government information has been a common theme.
In Bill 5, the Government Information Act, the government brought in measures to improve electronic preservation and access to government records, which is a good thing. It updates the Depression-era Document Disposal Act, which used to govern how information could be handled, kept or destroyed.
Unfortunately, the good news stops here. Bill 5 failed to bring in a legal duty to document, which is essentially a requirement that bureaucrats create records for what they are doing. This is a huge problem given the large number of FOI requests that come back with "no responsive records." In the past 10 years, "no records" responses to FOI requests have increased to almost 25 per cent.
On the other hand, one little-noticed change Bill 5 brought in was the removal of the possibility of anybody being charged for violating the law regarding destruction of government records.
But this was not the only instance where the B.C. government absolved wrongdoers of any consequences for their actions.
In Bill 11, which amended the School Act, the government brought in some profound changes in how student records are to be handled. Under the previous section 170, it was an offence to "knowingly disclose any information contained in a student record that identifies a student."
Bill 11 still restricts the purposes for which what is now to be called "student personal information" can be used for, but it completely removes the offence of improperly disclosing the information.
The common element here is the elimination of either personal or organizational responsibility or liability for the misuse of information held by a public body. Even if these provisions were seldom if ever used, they did serve as a deterrent, which has now been removed.
At a time when people are becoming increasingly concerned about both government accountability and the misuse of their personal information, this is hardly the message to be sending.
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