A commentary by a longtime independent journalist and author of Fallen Behind, a book on freedom of information. His website is www.canadafoi.ca.
Last week, former attorney general David Eby was sworn in as the 37th premier of British Columbia. “We have to earn the trust of British Columbians every single day,” he proclaimed in his speech, ending with the words: “We’ve got so much important work to do. I can’t wait to get started with you.”
One essential place to start would be to fulfil the unkept electoral promises his New Democratic Party made in 2017 to repair B.C.’s defective freedom of information law. The legislation now contains three statutory black holes that often render it almost inoperable.
First, Section 13 of the act allows officials to seal records of policy advice. The trouble is that public bodies are applying the section too widely, to include all “facts and analysis” that were used to create that advice (hence the Provincial Health Services Authority may newly keep secret all its internal audits). This loophole needs to be plugged, and former NDP attorney general Colin Gableman and current Indigenous Affairs Minister Murray Rankin have pleaded for this reform.
Second, the law should be extended to the wholly owned subsidiaries of universities and Crown corporations, which perform public functions and spend billions of dollars of your money, and yet are excluded from FOI laws. A prime example is UBC Properties Investments Ltd., which controls 100 hectares of public land (within Eby’s terrain as an MLA).
For the past 34 years, students and staff have bitterly complained about its secrecy, in regards to the new mini-city arising on site with no political accountability, and UBC’s building of high-priced condos for sale instead of student rental housing. Another outrageous sample is the new $500-million InBC Investment Corporation.
While serving as a member of a 2015 legislative FOI review, Eby complained that the Vancouver School Board’s companies were FOI exempt, despite a minister’s pledges to cover them. “I’m having trouble understanding how in 2005 the government could say that they were going to do this, and in 2015 we still don’t have this in place,” he pleaded.
The third problem is that of “oral government,” whereby government officials don’t create or preserve records of their decisions or policy development because they don’t wish such records to ever be made public through the FOI process.
Hence we urgently need a strong new duty-to-document law.
Such were the NDP’s promised solutions. The Hansard record shows that while in opposition, NDP members would wax poetic for hours to protest these failings, and tried without success to pass private members’ bills to rectify them.
But after assuming power, Premier John Horgan’s government, with Eby’s consent, autocratically rammed through Bill 22, the most bold and grotesque assault on the public’s right to know and its privacy rights ever seen in this province, a cynical trashing of the fine legacy of NDP premier Mike Harcourt, who passed the law in 1992.
Its most contentious feature was to newly permit government to charge people an application fee for filing FOI requests, now set at $10 (scaled down from the proposed $25 only after vigorous pushback). Rankin, while serving as an MP, had denounced Ottawa’s $5 FOI application fee “as a tollgate on the public’s right to know.”
Bill 22 bypassed and undermined the legislative review panel set to consider the FOIPP Act just months later, in effect scorning the public’s submissions as worthless. This panel chaired by NDP MLA Rick Glumac produced its report last June with fine recommendations, all of which Premier Eby should forthwith pass into law, besides repealing the worst features of Bill 22.
“Politicians become ministers, and they become easily seduced by the attractions of secrecy,” said Rankin, one of Canada’s foremost FOI experts since 1977, in a speech to an FOI conference in 2006. “Can we not find bipartisan support to restore our freedom of information? The silence from the government so far is deafening.”
Will the B.C. government finally pass an FOI statute that lives up to accepted global standards, one that is a cause for pride rather than shame? In the end, only Premier Eby and his cabinet can decide what they wish their legacy to be.
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