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34. Reforming Freedom ofInformation LawBy Vincent Gogolek and Murray Rankin, QCThe Freedom of Information and Protection of Privacy Act was designed togive citizens direct access to government records – to unvarnished, un-spuninformation that can be used to hold government to account.However, the Act isn’t working as intended. High fees, long delays andunjustified government claims for exemption from the duty to release arecommon problems. We’re coming up to the 20 th anniversary of the Act’spassage, and it is showing its age. Some problems have become so extremethat only legislative changes will fix them. Here are some key things that needurgent overhaul.Policy Advice ExemptionThis exception from the general duty to disclose records is supposed to allowministers to receive ‘full and frank” advice from civil servants about policymatters – without having to worry about the policy advice being released later.150 Maintaining SuperNatural BC: Selected Law Reform Proposals
This statutory exemption from disclosure was explicitly not meant to includefactual material, audits, and other studies and reports to government.However, a 2002 Court of Appeal decision and Information Commissionerorders following that decision have interpreted the “advice orrecommendations” exemption so broadly that:• Responses to a government stakeholder consultation exercise are nowconsidered “policy advice;”• A pamphlet on the HST to be sent to every household in British Columbiais considered by the government to be “policy advice;” and• A university’s request that the government bring in a retroactive law tomake illegal parking fines legal is counted as giving the government policyadvice (rather than just lobbying).A 2004 Special Committee of the Legislative Assembly that reviewed theAct recommended amendments to fix the problems created by the Court ofAppeal’s decision. However, government has not acted. (Another SpecialCommittee review of the Act, in 2010, recommended no change, which wouldleave the Court’s decision in place.) This black hole at the centre of the public’sright to know is getting deeper. As the 2004 Special Committee saw, legislativereform is the only way to fix this problem.Cabinet recordsThe current law allows government to make an excessive number of claims forCabinet secrecy. Again, a Court of Appeal decision broadened this exemptionfrom the public’s right to know, and that decision has led to too much secrecy.Particularly for background analyses and other documents, the Act should beamended to protect legitimate Cabinet confidentiality – but also enhance thepublic’s right to know about environmental matters.Oral government, or why can’t the Deputy Minister write?Spoken words that are not reduced to a “record” are not generally subjectto Freedom of Information (FOI) requests. Unsurprisingly, governments,especially the upper levels of government, have been moving to anincreasingly oral culture. Senior bureaucrats seem to hate writing thingsdown, especially anything that might result in controversy. Two examplesfrom the recent past:• Ken Dobell, the Premier’s Deputy Minister said in 2003, “I don’t put stuffon paper that I would have 15 years ago...Civil servants are choosing not towrite things down, or at least I am;” and• This hasn’t improved over time. Just last year, former Premier’s DeputyMinister Allan Seckel confirmed the continued existence of the oral culturein the Premier’s Office when he wrote a letter to the Information andPrivacy Commissioner. The Commissioner was investigating the absenceof documents about a 33% reduction in BC Ferries rates, and Seckel stated“...the ‘proposal’ Mr. Hahn refers to in his letter was oral, hence why noMaintaining SuperNatural BC: Selected Law Reform Proposals 151
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MAINTAINING SUPERNATURAL BC FOR OUR
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ContentsA. Planning and Environment
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Note that many of the articles refl
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A. Planning and EnvironmentalAssess
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• Destroy an important cultural a
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For more information, see:Environme
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will result from the interaction of
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3. Land Use Planning for Nature,Cli
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The cumulative effects of human act
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Implement and sustain monitoring pr
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B. Regulating IndustriesMaintaining
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the vast majority of the province,
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capability, fisheries sensitive wat
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∘∘∘∘Nations’ land claims,
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Limiting Mining Minister’s Discre
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• Since 1998, Ministry of Environ
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7. OIL AND GAS: Reforming Oil andGa
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drilled as close as 100 metres to a
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Oil and gas companies can drill on
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8. OIL AND GAS: It’s Time to Regu
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found in one of BC’s main fields,
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files/publications/Oil%20and%20Gas%
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- from strengthening corporate timb
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New mechanisms for local self-deter
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C. Protecting Wildlife & WaterMaint
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wintering ground or stopover. Unlik
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On The Edge: British Columbia’s U
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Given that all water systems (both
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water as a public resource that the
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12. Protecting Fish in British Colu
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This gutting of fish protection law
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13. Privatizing Salmon Protection:T
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uilt on roughly one-third of the pr
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This policy lurch makes it even mor
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Planning must involve robust public
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has led to such an increase in cost
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For more information, see:Reforming
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fail to co-ordinate regulatory effo
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• Powers to enter into agreements
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D. The Urban EnvironmentMaintaining
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coordinating land use, transportati
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18. Protecting Natural Areas in our
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stewardship isn’t just a matter o
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of less than 20 cents on the dollar
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of-way. The resulting greenways net
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20. Reinventing RainwaterManagement
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LID effort in North America - a com
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Page 101 and 102: pumped oil into a Saanich basement
Page 103 and 104: 22. Reforming Contaminated SitesLaw
Page 105 and 106: of Compliance (COC) approvals. The
Page 107 and 108: F. Climate Change andEnergyMaintain
Page 109 and 110: Meanwhile, Environment Canada’s s
Page 111 and 112: 24. In Defence of the Carbon TaxBy
Page 113 and 114: over. BC’s carbon tax is still no
Page 115 and 116: generations of BC ratepayers and ta
Page 117 and 118: William Andrews is a BC lawyer who
Page 119 and 120: happen when people heat their homes
Page 121 and 122: G. Ensuring Justice forNatureMainta
Page 123 and 124: • In 2003, the public’s right t
Page 125 and 126: Regulation Improvement Coalition an
Page 127: to provide the courts with the best
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Page 132 and 133: Chris Tollefson (D. Gilliland and J
Page 134 and 135: British Columbians must have the ri
Page 136 and 137: for both present and future generat
Page 138 and 139: that SLAPPs have a range of negativ
Page 140 and 141: Anti-SLAPP Advisory Panel: Report t
Page 142 and 143: An Environment Commissioner would p
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Page 146 and 147: 33. Reliance on QualifiedProfession
Page 148 and 149: Does this new approach have an adeq
Page 152 and 153: ecords in relation to such a ‘pro
Page 154 and 155: Information and Privacy Commissione
Page 156 and 157: Gord McAdams was a “whistleblower
Page 158 and 159: could result. The legislation shoul
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