The B.C. government has introduced legislation to make it easier for officials to disregard or delay freedom of information (FOI) requests.
Citizens’ Services Minister Diana Gibson claims this will enable requests to be met more quickly by a system overwhelmed by reams of data, but critics and transparency advocates are alarmed.
One of those is B.C. Green Party MLA Rob Botterell, who led the legal team that drafted the province’s first freedom of information legislation in 1991. That bill passed the legislature with unanimous support the next year.
“If these amendments get through, it’s just going to be the end of freedom of information as we know it,” he said. “And we’ll be back to where we were in the 1980s.”
Working for the NDP government of the day, Botterell was instructed to create the most open system in Canada. Years of “whittling away” at the rules he helped create have left a system that is now far from this measure, he says.
Gibson introduced the changes on Feb. 26 as a bill amending the Freedom of Information and Privacy Protection Act, declaring that the modifications would introduce “practical efficiencies” and enable “more transparent, people-centred service delivery.” The bill to make the changes has been introduced but has not yet passed second and third readings.
A government news release says the changes aim to make it easier for people to obtain their own personal information without an FOI request, “strengthen” provisions related to the specificity and clarity of requests, allow more flexibility for timelines to be extended and enable the government to disregard requests from applicants whose behaviour is deemed “abusive or malicious.”
Gibson told reporters these changes are needed because the amount of data in an average request has grown considerably since the process was first introduced in the 1990s. Modern FOI requests can capture information from many digital sources, such as email, WhatsApp and Signal chats. This has made gathering information more time-consuming than ever.
“What we’re doing in this bill is making it a little bit easier for us to be able to get the right information to people in their hands when they need it,” she said.
Jason Woywada, executive director of the B.C. Freedom of Information and Privacy Association, called the legislation “self-serving” because it makes the process simpler for the government, but not for the public. And he said it will allow officials to disregard requests more frequently.
“That leads to a further erosion in public trust,” he said.
More justification not to respond to FOI requests
These changes expand the government’s ability to reject FOI requests in several ways.
For example, they allow the head of the public body being asked to produce records to refuse a request based on their “opinion” that an experienced worker for the organization would not be able to identify the requested documents “with a reasonable effort and in a reasonable amount of time.”
The legislation also says a request can be disregarded because it is determined to “unreasonably interfere” with government operations, or solely because it is “repetitious or systematic,” or “excessively broad.”
Previously, those things were tied together — a request could only be denied if it would unreasonably interfere with government operations because it was repetitious or excessively broad.
Government officials will need to apply to the Office of the Privacy Commissioner for approval to disregard requests for these reasons.
Privacy Commissioner Michael Harvey issued a positive statement about the changes, saying he is “encouraged” that the legislation will allow people to get answers more quickly.
Black Press Media requested an interview with Harvey but was told he is unavailable.
A statement from his office says the commissioner “appreciated” that he was consulted on the amendments and that the government chose to take administrative measures to reduce pressure on the system rather than undermining independent oversight or lengthening timelines.
But Woywada questions whether Harvey’s office can handle the additional decision-making that could be required under the new rules.
And he says the government shouldn’t outsource this work to the commissioner while “under-resourcing” internal information management.
“They aren’t putting the money, or the resources in training, or the support for staff, to go in, save their files appropriately, and retrieve them when asked to,” Woywada said.
While the new rules give the commissioner more decision-making duties, they also allow him to extend request timelines beyond 90 days.
Meanwhile, there is a simultaneous expansion of government officials’ ability to delay requests. Previous rules required FOI requests to be answered “without delay.” This is now changed to “without unreasonable delay.”
While this might sound innocuous, it has real legal meaning, and according to both Woywada and B.C. Conservative Citizens’ Services Critic Jody Toor, this could allow a government to stall on a release.
“It’s just small language, but language that can have an impact,” Toor said.
According to Botterell, all this gives the government more control over whether a request is processed – and the chance to delay processing a request until the information is no longer relevant.
“As long as that information doesn’t embarrass the government, you probably get it,” he said. “But now, if it’s going to be embarrassing, you’ll never see it.”