***Mar 2006 Focus pg 1-32 - Focus Magazine

Officially ridiculousGERRY BLISS AND BRAD DENSMOREtalk of the townIn BC, two decades post-FIPPA, it’s harder S. 13(1) to Policy get government Advice or Recommendations information than it was before the legislation came into force.When the Freedom of Informationand Protection of Privacy Act(FIPPA) was introduced in 1993,BC was at the leading edge of citizen access togovernment information. Architects of transparencyand accountability legislation aroundthe world had a vision of better educated citizens,the press holding government accountablefor its policies and actions, and legislatorsbringing the light of day into the public service.In fact, there hasn’t been a major politicalparty in Canada in the last 30 years withouta formally stated commitment to transparencyand strengthening public access to governmentinformation. People today have everyreason to expect to be able to get any informationthey need to be informed citizens andstakeholders of government services.But something went wrong.In BC, two decades post-FIPPA, it is harderto get government information than it wasbefore the legislation came into force. Fundingcutbacks have reduced the number and contentof published reports. Special reports are nolonger published. Information technology,instead of improving public access, is used todo an end-run around it: intentionally writingdocuments a certain way in order to be coveredunder FIPPA exemptions, using instant messagesor phone calls, or even using personal emailsoutside of the reach of FIPPA. InformationAccess Operations, the department responsiblefor upholding FIPPA for most of the publicservice, recently issued an RFP looking for ITsolutions that would help them handle an everincreasingvolume of FOI requests—admittingthat their current model is “not sustainable.”To find out more about the consequencesof FIPPA’s devolution, we went to the mainusers of government information. We talkedS. 14 Solicitor Client Privilegewith legislators who oversee governance ofthe province, and surveyed BC journalists whokeep the public interest on their mind.As a former cabinet minister and currentIndependent MLA, John van Dongen has hada lot of experience on both sides of FIPPA.“This legislation was drafted to ensure dueprocess when the public seeks informationfrom the government. However,” he admits,“the source of the information can ensurepractices are followed that limit the amountof information available.”MLA Vicki Huntington, elected as an independentin 2009, worries that these practicesfeed an adversarial culture among governmentstaff who often prevent MLAs andjournalists from doing their jobs. “As an MLA,it is my job to delve into issues that matter tomy constituents. To be effective legislators,we rely on access to the bureaucracy. Ourability to ask how our tax dollars are beingspent—and receive a timely and knowledgeableresponse—is directly proportional tohow much influence we have on governmentdecision-making.”However, when Huntington, or any otheropposition MLA submits an inquiry to a governmentministry, current government practicemandates that they are only to be handled bypolitical staff in the ministry—staff who carefullyvet and spin responses that can be delayedfor months. “Civil servants are afraid of repercussionsif they candidly discuss any aspect oftheir work. It’s a form of muzzling, and it ultimatelyundermines democracy by keeping BCresidents and their elected representatives inthe dark about how their government worksfor them and how their tax dollars are spent,”said Huntington. “When you have to go througha minister’s office to get a map otherwise availableto the public, censorship is a reality andit is out of control.”BC’s first Information and PrivacyCommissioner and world-renowned architectof FIPPA legislation, David Flaherty, saysthe extent to which FIPPA access requests havebecome relied on was never even imagined in1993. “It was never conceived that parliamentarianswould have to use FIPPA to access theinformation they need to do their jobs.”Today legislators like Huntington are, unfortunately,some of the primary users of FIPPAaccess to information provisions. These documentsare then censored according to exemptioncriteria such as personal privacy and legaladvice to government.Journalists have similarly complained ofcensored and delayed access. In one case, aVancouver Sun FOI request for a warehousedHST brochure printed for the entire provincewas rejected under Section 13, “advice to theMinister.” Vancouver Sun reporter JonathanS. 17 (1) (c) Disclosure harmful tofinancial interests of a public bodyFowlie eventually appealed the frivolous useof Section 13, and won—but many journalistsdon’t bother, or are turned off by potentiallegal costs.Some journalists go to Vincent Gogolek,executive director of the non-profit BC Freedomof Information and Privacy Association, whichregularly takes government to court over informationdisclosure. Gogolek said while FIPPAis a “good framework,” he feels the process isnot working well, and many responses, such asthe one the Sun received, are “officially ridiculous.”And despite the intention of the Act,people are increasingly relying on FIPPA tounderstand the actions of the same civil servantsthey used to have access to. One journalistsurveyed in our recent online survey of BC journalists,commented: “The major change I’venoticed during my career (15+ years) is themove away from letting knowledgeable governmentstaff speak and towards the use of designatedspokespeople, usually an elected representative(who may not have direct practical ortechnical knowledge of the area in question).A designated spokesperson is also more likelyto provide a canned or scripted response, or inlieu of that one person’s availability, a vettedand scripted response may be provided. Thisfurther reduces the chance of dynamic, responsivecomment to specific questions…”“It’s a waste of everybody’s time, and a wasteof public resources,” Gogolek said. He alsosaid that one of the worst offences by governmentis their failure to document—a duty onlyloosely alluded to in Section 71 of FIPPA.As evidenced by the recent leak of a controversialmulticultural outreach strategy distributedvia private email accounts out of reach ofFIPPA, civil servants are simply not documentingtheir work in many cases, furtherfrustrating the process. “The numbers [of nonresponsiverequests] have been going up, fromten per cent to almost a quarter,” Gogolekadded, echoing the message of ElizabethDenham’s May 4 Conflict of InterestCommissioner Report, stating governmentshould be obligated to document decisionmakingand respond in “a more open, accurateand complete manner.”14 April 2013 • FOCUS