A handful of amendments to B.C.'s information and privacy law would force the B.C. Liberal government to drop most of the dodges it uses to avoid disclosure.
Information and privacy commissioner Elizabeth Denham landed heavily on the government last month with a report that exposed the penchant for secrecy in the premiers' office and various other ministries.
NDP critics followed up with several more cases about how legitimate requests for information are subverted and come back blank. The issue became the dominant theme of the session that just ended, to the point where Premier Christy Clark has hired former commissioner David Loukidelis to implement some the policy tweaks Denham recommended in the report.
But Denham showed up at a legislature committee Wednesday with a batch of new ideas that go beyond policy adjustments. They would toughen the law considerably.
The committee is struck every five years to review the law, and commissioners through the ages don't have a good track record of getting their suggested amendments passed into law. But there was enough focus recently to suggest these -- some of which have been urged on government for years -- might have a better chance.
One of the cases highlighted recently involved the minister's aide who seized a colleague's computer and deleted records related to an FOI request about the Highway of Tears. That episode was referred to the police for possible investigation of wrongdoing. But unauthorized destruction of information is not generally an offence under existing law. It's only considered a breach if it's in response to an FOI request.
Denham wants oversight over any destruction of records, because unauthorized deletions "defeat the underlying purpose of the right to access information and can harm accountability."
The amendment should include appropriate sanctions to send a clear signal to provincial and local governments that unauthorized destruction is prohibited. Maximum penalty for breaches of the information and privacy law is currently $5,000. B.C. has some of the weakest penalties for things like privacy breaches. She wants the maximum jacked up to $50,000.
Even without unauthorized deletion, legitimate requests often come back with a standard "there are no records responsive to your request." That was highlighted numerous times during the session. It's a function of deliberate avoidance by way of the "oral culture" she's criticized in the past, or deeming everything "transitory" so it can be deleted.
But there's no requirement in current law for government to create records about key decisions and actions.
Denham wants that basic requirement introduced. It's something that's been urged repeatedly over the years.
She said the "duty to document" has eroded as online communication became the primary tool. Meeting minutes, memos and phone calls used to be standard and produced written records that were filed and kept.
Now it's all in emails, but Denham said they lack the structure and content that give reliable and dependable evidence of a public body's decisions.
And as is clear now, they can disappear in the blink of an eye.
She told MLAs that officials balk at the notion because it would be too cumbersome and would put a chill on frank deliberations about all options.
But she said the act is flexible enough to ease those concerns.
She also wants the definition of one specific exemption rewritten to narrow its usage. "Advice and recommendations" to cabinet don't have to be disclosed. Courts over the years have broadened the interpretation of that phrase so that large chunks of most FOI responses are redacted under Section 13.
Nearly any document that considers alternative options to any issue at hand is effectively exempt, she said.
Factual material compiled by a public body shouldn't be a secret, nor should professional or technical opinions.
Denham also rapped public bodies for almost universally failing to meet the existing standards for proactive disclosure.
Routinely posting information that is often requested by way of FOI -- contracts over a set value, audit reports, politicians' travel costs -- would eliminate a lot of workload.
The groundwork for doing so is in the current law, but the categorization of such information is haphazard.
Most of these pleas have been made before, and ignored. It might be different this time around.
