Finance and Government Services — Issue No. 62 — Wednesday, May 13, 2015 (HTML)

Present: Wm. Scott Hamilton, MLA (Chair); Carole James, MLA (Deputy Chair); Dan Ashton, MLA; Eric Foster, MLA; Simon Gibson, MLA; George Heyman, MLA; Gary Holman, MLA; Mike Morris, MLA; Jane Jae Kyung Shin, MLA; John Yap, MLA

2. The following witnesses appeared before the Committee and answered questions regarding financial and operational updates.

5. The Committee discussed and considered preliminary details regarding its 2015 budget consultation process.

The following electronic version is for informational purposes only.
The printed version remains the official version.

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
FINANCE AND GOVERNMENT SERVICES


CONTENTS
Page
Office of the Information and Privacy Commissioner: Financial and Operational Update	1387
E. Denham
D. Van Swieten
M. McEvoy
Office of the Conflict of Interest Commissioner: Financial and Operational Update	1396
P. Fraser
Budget Consultation Process: Preliminary Planning	1401

The committee had an opportunity to discuss our options in terms of how we would like to take advantage of some of the waning days of the spring session. Seeing as we have the Wednesday mornings open, aside from the occasional outreach that we have in our caucus — and I’m sure our NDP caucus, the same — we thought we’d take the opportunity to invite the commissioners to spend an hour and provide us updates sort of halfway through the calendar year, rather than jamming it all in November and rushing.

It’s essentially your hour to take the opportunity to provide us an update on your operation — on your financial beings in your office.

I’ll start by going around the table and doing introductions. We have more people here this morning than I thought we’d have. Mike, can I start with you?

S. Hamilton (Chair): Good morning. I’m Scott Hamilton, your Chair, and MLA for Delta North.

K. Ryan-Lloyd (Deputy Clerk and Clerk of Committees): Good morning. Kate Ryan-Lloyd, Deputy Clerk and Clerk to the committee.

D. Van Swieten: Dave Van Swieten, executive director, corporate support services, for the Privacy Commissioner.

E. Denham: Elizabeth Denham, registrar of lobbyists and Information and Privacy Commissioner for British Columbia.

S. Hamilton (Chair): Yes. As I said, it’s going to be your hour, Elizabeth. Maybe before you start, you can introduce some of the people behind you, as well, because you brought more than….

I think many of you have met Michael McEvoy before, our deputy commissioner. Behind me we have Pat Egan, who is our assistant commissioner. We have Cara McGregor, who is our director of communications — again, I think familiar to some of you — and also Jane Zatylny, who is one of our communications public education staff.

Okay, thank you. As I said, this is your hour to update the committee, spend a little bit of time giving us a presentation, if you have one, and then I’ll go to the committee and ask them if they have any questions of you.

Office of the
Information and Privacy Commissioner:
Financial and Operational Update

E. Denham: I do have a bit of a presentation. I thought that I would speak for about 20 minutes to update the committee on some of the things that are going on in our office and hopefully leave a lot of time for questions that the committee may have.

Good morning, everyone. Thank you, Mr. Chair. Good morning, Madam Deputy Chair. I very much appreciate the opportunity to appear before you today. I believe that as an officer of the Legislature I should report regularly to and be accountable to the Legislative Assembly for the work of our office.

I think it’s really important, as I stated in my letter to the committee of December 19, 2014, that we meet more frequently than in the run-up to budget and outside of the budget cycle. So I’m very happy to have this opportunity this morning.

I’d like to start with a budget update, followed by a brief summary of some of the progress that we have made on
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our office’s key priorities that I set out in my November 2014 budget presentation. Then I thought I would close with some of the really big files that are on my desk right now. I’ve also brought a bit of a sneak peek at our case statistics from our upcoming annual report.

Starting with the budget numbers, I’m very pleased to report that my office stayed within its budget for the 2014-15 fiscal year. You may remember that last fall I made a special request to the committee to unfreeze funds that were earmarked for judicial reviews. Those are moneys that are dedicated to funding legal counsel for appeals of the OIPC’s formal rulings, and we needed that money to address unfunded cost pressures as well as an increased caseload of complaints and appeals.

With the committee’s approval to permanently remove the spending restriction on judicial review funds, we were able to hire temporary staff to ease some of the burden of our backlog as well as some temporary help in our adjudication division. Those are the folks that settle files that can’t be mediated by way of formal decision or formal order.

The flexibility that you provided us, combined with some self-imposed spending restrictions in areas such as travel and professional services, kept us in the black. We ended the year with a surplus of $11,599.99, and our total budget is $5.6 million. That means that we spent 99.98 percent of our budget.

We are in the early stages of forecasting expenditures for fiscal 2015-16, but I don’t anticipate any major budget changes or funding issues based on what we know today. We don’t know what’s coming around the corner, but based on what we know today.

I’d like to turn now to progress on our service plan and our major priorities and initiatives. I’m going to begin with the Office of the Registrar of Lobbyists, one of my two hats.

For the ORL, we’ve made some good progress on two of our major priorities — increased enforcement of the Lobbyists Registration Act and public education and outreach. In terms of increased enforcement, the purpose of the lobbyist registry is to provide an open, accurate and complete public record of who’s influencing whom in government decision-making. By stepping up enforcement activity we reinforce the message that transparency in lobbying is not only desirable from a public interest perspective; it’s also the law.

In 2014-15 my office completed 153 compliance reviews, which are reviews of a lobbyist’s activities identified either through a complaint, through an environmental scan that my office does, through an inquiry or a careful review of a disclosure statement by the lobbyist.

We completed 18 formal investigations in the last fiscal, and six of those investigations resulted in findings of non-compliance with fines levied against the lobbyists. An investigation that results in a finding of non-compliance must be made public. Six of those investigation reports were tabled with the Legislative Assembly in the last fiscal year. Not being shy, we also post them to the website.

Starting this year we have our e-magazine, which is called Influencing B.C. I think most of you have a copy before you. We have a new column called “Lessons Learned” which summarizes investigation reports in a simple, accessible format.

These bite-sized articles give a snapshot of where a lobbyist went wrong and why so that other lobbyists can learn from those contraventions. The column has proved quite popular. After publishing “Lessons Learned” for the first time, we started hearing a lot more from lobbyists about their lobbyist disclosure responsibilities.

Turning now to public education, we’re putting the final touches on the ORL’s public education plan, which we’re on track to implement this year. Some of our strategies include clear and practical guidance for registered and active lobbyists to explain how B.C.’s lobbyist legislation works, tips on staying compliant and also education for public office holders and their staff.

Without naming any names, we’re seeing some persistent knowledge gaps among these groups. If you are the target of lobbying, it’s important that you know what the rules are as well. I would be open to any of the committee’s suggestions about how we can get our message out there more effectively.

Turning now to the Office of the Information and Privacy Commissioner, we’re working hard to keep up with an ever-increasing workload to deliver effective and timely services to citizens and assistance to public bodies and private sector organizations. In my presentations to public bodies, I often cite case statistics to show the ever-increasing volume of work that our office handles every year.

I think statistics can communicate the demands on our office, but they fail to capture how much has changed in the privacy and access-to-information environment. In the past ten years we’ve seen an incredible growth in public concern and attention to privacy and access to information fuelled by advances in technology that make the regulation and oversight of our laws more challenging and more complex.

Ten years ago we received about 1,600 questions, telephones or e-mails from the public each year. Those aren’t complaints; those are questions about: what does the law say? How can the commissioner’s office help me? In 2014-15 we received 5,200 public requests for information. That’s a threefold increase in ten years.

Ten years ago we were notified of three data breaches for the entire year. This fiscal year we were notified of 132 serious privacy breaches.

Even though this number is a drop in the bucket compared to the actual number of serious privacy breaches that may happen every day — everything from credit card breaches of retail agencies to e-marketing giants to
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staff snooping on patients’ electronic medical records…. The volume, the sensitivity and also the ease of transfer of personal information in digital formats has raised the stakes for data breaches and magnified the very real privacy harms for individuals.

After more than 20 years of appeals and complaints before our office, the investigations that we take on today are more challenging than ever. I would say there’s very little low-hanging fruit. Many of the issues that we look at we’ve never looked at before, and they require close and detailed analysis on the part of our skilled intake officers, investigators and adjudicators.

In an environment of increased public attention and concern where data breaches are happening every day, where surveillance is ubiquitous and advances in technology are happening with the blink of an eye, offices like mine will always be challenged to keep up. What we need to do is find ways to work smarter.

What we’re doing to address these challenges is to review and make changes to our front-end processes and our investigation processes to help us meet demand in the long term. I’ve told my staff that our current way of working is not sustainable. The backlog of cases has stabilized somewhat in adjudication, but it continues to increase at the investigation stage.

So today I’m disappointed to tell you that we have 300-plus files waiting in the queue. That means that citizens are waiting six months or longer for files to move out of the queue to be assigned for active investigation by our staff. As I said in my presentation to the committee in November, addressing our backlog of demand for our services is my number one priority this year.

I’m going to tell you about some of the steps that we’ve taken since I appeared before you in November. As of last month we hired three new investigators. These are really the case managers in our office. Two of them are net new positions, and one is to fill a vacancy in an existing position.

The committee approved funding for one new investigator in November, and I have reallocated resources to provide for a second new position, primarily through restructuring our professional services budget and areas where we had some flexibility.

Also, in December of 2014 I initiated a continuous improvement process — I’m calling it a light lean process — focused on our complaints and appeals. This is the first time in 22 years in our office that we’ve taken such a deep look at our internal processes. Our aim is to find some internal efficiencies that will enable us to resolve and close investigations faster.

Some of those changes involve streamlining our current workflow, looking at where work gets bottlenecked or bogged down, and finding solutions within our current staffing and budget footprint to alleviate those pain points. We really are taking all the processes apart.

Other changes involve updating our current policies — for example, hardening our process in what files we’re going to accept. We do have the discretion to turn away requests for investigations if there is insufficient evidence or if we feel that the matter has been determined before so there’s jurisprudence to tell us this person is never going to get those records.

We have to make sure that decision-making around turning away files, refusing to investigate, is clear and consistent. As a quasi-judicial body, it’s important that our processes are completely open and transparent and fair and that citizens know what to expect from our office.

The next phase of our project will take a lot of legwork, and unfortunately, we have to take some of our most senior investigators off their case files to do this other work — so short-term pain for long-term gain. We’re doing an in-depth review of the investigation process, from the moment that a file is opened to its resolution, to make sure that all cases are mediated as efficiently as possible. While we make these structural changes to our processes, we have to take steps to assist those that are currently waiting in the queue.

I’m committing to you today that by the end of November 2015 we will reduce the current investigation backlog by 20 percent and, by the end of fiscal year, by 50 percent. This is an ambitious target but one that I’m confident, based on our current projections, that we can meet.

Taking a breath now, and before turning to questions, I’d like to briefly review some of the OIPC’s major policy and compliance initiatives. I know that a number of you, in a former movie, were municipal councillors, so I thought I would start with the Saanich investigation.

On March 31, 2015, I released an investigation report concerning the district of Saanich’s use of employee-monitoring software on workstations of the mayor, some council members and some senior district staff. This information came to light when Mayor Richard Atwell held a press conference alleging that he was being spied on by the district and that software had been surreptitiously installed on his computer to monitor his activity.

In the commentary that followed, Saanich council made public statements that employees have no reasonable expectation of privacy in the workplace. As commissioner, I couldn’t let those statements stand, and I also couldn’t ignore the growing number of questions about the use of employee monitoring software by the district.

I didn’t receive a complaint, but I initiated an investigation on my own motion to examine whether or not this software complied with the Freedom of Information and Protection of Privacy Act. Our investigation found that what Saanich had done in a very short time period…. They had picked an off-the-shelf solution as a quick fix. District staff explained to my investigators that they were motivated by concern that the newly elected tech-savvy
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mayor would take issue with the district’s known IT vulnerabilities.

They selected a program called Spector 360, which enabled invasive tools that captured an employee’s every keystroke, every e-mail and took pictures of screen activity at 30-second intervals. These tools vacuumed up not only work data but also the private information of employees, including on-line banking transactions, confidential correspondence and private passwords or images.

There was insufficient notice to the mayor, to councillors and to employees of the scope and the extent of the collection of this personal information. We found that this software and the implementation of the software contravened the Freedom of Information and Protection of Privacy Act.

My main recommendation in the report was that the district of Saanich disable these functions of their employee monitoring program and delete all of the data that was collected using those tools. I also recommended that Saanich appoint a chief privacy officer and implement a privacy management program for the entire district. District and council has agreed to implement all of our recommendations, and we will continue to monitor the district’s progress.

I think this was a teachable moment for many employers across the province, both in the public sector and the private sector. I’ve been spending a lot of my time talking about employee privacy, not just to municipal staff but really across the province.

In January 2015 we released a special report examining the efficacy of the B.C. government’s privacy breach management protocols. This is the first report of our new audit and compliance program. I selected government for the first audit because ministries are entrusted with large volumes of sensitive personal information. Citizens expect government to protect that information but also to do the right things when things go wrong.

There’s very little public reporting of the number, the frequency and the type of breaches within core government. With this report, we wanted to shed some light on breach management and make recommendations for improvement.

Through this examination we learned that between 2010 and 2013 the office of the chief information officer was notified of 2,718 privacy breaches across all government ministries. The ministries with the highest number of privacy breaches are the Ministry of Social Development, the Ministry of Health, the Ministry of Children and Family and the Ministry of Justice.

Government classifies privacy breaches down into various categories. The largest one is called administrative errors, and that means sending personal information to the wrong fax number, sending personal information to the wrong e-mail address. Those administrative errors accounted for 71 percent of actual privacy breaches. A much smaller percentage of privacy breaches are the result of cyberattacks or phishing or inappropriate access, theft and data loss.

Government does some really good things in its centralized management model for privacy breaches. Individual ministries report breaches to the office of the chief information officer, who provides advice and support.

We found that that centralized model has a lot of merits, but there are some significant gaps in the government’s breach management system. There’s no global analysis happening to identify trends in breaches, the causes of breaches, in order to proactively address them. Government is not notifying our office; we only heard about 2 percent of those breach numbers that I gave you. Government’s not notifying my office or affected individuals as often as they should when significant privacy breaches have occurred.

I made a number of recommendations to the government to improve its overall privacy breach management program, a number of which have been accepted by government.

Our next steps include looking at breach management practices of other public bodies. Right now we’re looking at health authorities. We will move from there to look at a municipality, probably not Saanich, and then we will look at a post-secondary institution.

All of this is done because citizens care about the management of their privacy. We hope to improve privacy breach responses across the public sector and also to assess whether or not we need a mandatory breach disclosure regime for the public sector. As many of you know, the Special Committee to Review the Personal Information Protection Act recommended mandatory breach notification for the private sector.

Finally, I just wanted to make a couple of brief comments about my office’s forthcoming investigation report of the Mount Polley incident, which will be published very soon.

In 2014 we received a complaint, and I announced that I was investigating whether government was legally bound to disclose information about the tailings pond to British Columbians under section 25 of the Freedom of Information and Protection of Privacy Act. Section 25 of that act imposes an obligation on public bodies to provide citizens with timely information in two circumstances: where there’s an imminent and significant risk of harm to the environment or to the safety of citizens, or where the information is, for any other reason, clearly in the public interest. It’s a duty to warn and a duty to inform.

I anticipate that my report into the Mount Polley incident will be released in the coming weeks.

Thank you very much for your attention this morning and also for the opportunity to appear before the committee and update you on the work of our office outside
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of the budget cycle. Thanks for that, and I’m happy to take any questions you may have.

S. Hamilton (Chair): Thank you very much for the presentation, Elizabeth. It’s very fulsome. I’ll go to the committee for questions.

Average fine to lobbyists. I saw the two examples in the back. Is that an average fine — $500?

E. Denham: It’s not average. The fines range from, actually, $100 — we have had fines of $100 — up to $2,500 so far. But we have the ability to fine a lobbyist to a maximum of $10,000.

D. Ashton: Saanich — were they assessed any claims against damages, financially, for your costs?

E. Denham: I don’t have the ability to issue fines or sanctions under the law. If there were any damages that individuals felt that they suffered as a result of the contravention of the law, they would have to take that to the court and prove damages. I don’t have the ability to issue fines or sanctions against public bodies.

E. Denham: The average pay for our investigators is about — looking at Mr. Egan — $75,000.

E. Denham: Plus benefits. These investigators are classified by the Public Service Agency to be equivalent to investigators within government proper and other tribunals.

C. James (Deputy Chair): Thank you for the presentation. I appreciate your reinforcing the committee’s discussion that we’re going to have with all the independent officers. I think it’s helpful, and it’s important for us to not simply be looking at budget but more to be looking at your work and why the budget is spent the way it’s spent — so very helpful.

I wonder if you could just talk a little bit more about your education program. I was thinking about it as you were talking about your wait-list. I think it’s a bit of a double-edged sword. I’m sure education can be helpful to ensure that people aren’t bringing frivolous complaints or bringing complaints to the wrong place. But I’m certain, if you go out and do a really good job of education, you’ll also increase the number of complaints coming to the office from people who all of a sudden realize they have a right and an ability to bring it forward.

I wonder if there’s been any work done on that and what kind of education program you’re looking at.

E. Denham: Right, and some of the staff may say that we are the victims of our own success. Every time we go out there and make a presentation about compliance, either in the public sector or the private sector, not only are you educating organizations, but it’s individuals within those organizations who can bring complaints to our office.

Although we don’t have the resources to have an express education program for British Columbians as individuals, we do educate, from a compliance perspective, both private businesses and non-profit organizations, both of which fall under the private sector law, but also public bodies. We hold conferences. We are sponsoring a large conference in Vancouver in November. Again, we’re increasing awareness every time we do that.

The media also do that when they write about our reports. Our website, again. We have an award-winning website, so that I think citizens find it quite easy to understand how to make a complaint.

Two questions. Just to follow up on Dan’s question about the fines for lobbyist contraventions. I guess I was wondering what the maximum fine is. Do you have some sense about whether the fines you are levying do have an effect? Do you have people, you know, kind of reoffending?

The other question is more general. It’s interesting that you were saying over a ten-year period, roughly, essentially how much requests for your service have grown. How does that compare to your budget over that time? That’s a bit of a leading question. But I think the point you’re making is that in this more complicated modern world, the need for your involvement seems to be growing quite rapidly. How does that compare to the resources that you have been given over that period of time?

E. Denham: I’ll start with the questions around the Office of the Registrar of Lobbyists. Again, a $10,000 maximum fine.

Your question about whether or not we think that by levying fines…. The ability to levy administrative monetary penalties under that act is a message that’s getting out there to other lobbyists. We don’t have any reoffenders, so that’s a good thing.

It’s a really big deal when a consultant lobbyist is fined by a regulatory agency and that fine and the report are made public. I’d say that’s a disincentive for not only that lobbyist but the rest of the community. I think in getting the message out there — through public reporting, to the Legislature, through our Influencing B.C., our e-
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magazine — we’re starting to see that community take this very seriously.

The legislation was changed in 2010. For the first two years when we had the fining power, we held back, and we focused on education. After that I thought we needed to actually strengthen our enforcement. I think it has had an effect across the community.

Your second question is about the demand for our services over the past year and whether our budget has kept pace with the demand.

E. Denham: Oh, the past decade. We had even a 33 percent jump in the last two years in terms of complaints and appeals before our office, so we had a large jump. We did not have a jump of 33 percent increase in our budget.

In ten years we have had a 40 percent increase in our budget, but the workload of our office has at least tripled. That’s everything we do. That’s speeches. That’s taking requests from the public, complaints, appeals, reviews of privacy impact assessments, policy consultations, meetings. There’s a lot of work that actually doesn’t show. It’s like the tip of the iceberg. You see a little bit of the work, but underneath there is a lot of consultation going on.

We’ve also tried to be more proactive in our work and try to give advice to public bodies before they flip the switch or pick the employee-monitoring software off the shelf. It’s better if public bodies come to us before implementing a program or a technology, rather than us having to enforce the law at the end of the day. That’s a lot more costly for everyone, so we’ve tried to shift that.

At the same time — to Carole’s point — citizens know more about these rights. Organizations know more about them. So we just have more work to do. That’s why I’m trying to look at all of our processes to make sure that we’re being as efficient and effective as we can.

M. Morris: Just going back to one of the questions that Mr. Ashton had, what’s the base scale, bottom scale, for investigators and your top pay scale for investigators? I know you said your average is 75 grand.

M. Morris: Okay. Looking at the wide world of investigations, whether it be with the various police agencies or the conservation officer service or the multitude of investigative agencies we have across the province here, there are never enough investigators. I know from my days in the RCMP as a senior manager, we would look at the budget and try and triage all the files that we had coming in. We would investigate the ones that we felt were the most serious — persons’ injuries and those kinds of complaints. Oftentimes we never did get to some of the other investigations. It was just a fact of life in the world of policing. I know the conservation officer service is faced with the same thing — and all the other investigative agencies that we have.

I’m just wondering whether…. You mentioned the Saanich file. It was something that you took up on your own. Is it something that you could just give them a directive and say, “Listen, Saanich, I’m curious as to how this system works here. Could you give me a report or a review on what you’ve done?” instead of initiating an investigation that would cost you time and energy and resources and whatnot from there? You know, we don’t have enough money right across all levels of government to conduct all the investigations that we’d like to do.

Do you have a system of triaging? Looking at it, I know you’ve got quite a backlog of investigations there. Maybe you can comment on that.

E. Denham: On the triaging, yeah. We are an investigative body that has the ability to decide not to investigate a complaint, but we have to have sound reasons, for administrative fairness. We can turn away complaints. Not all investigative bodies can do that. But again, I would say that if there’s no evidence of a contravention, if the complainant is not able to bring us the evidence, we can say, you know: “Go away. Come back when you have more.” That’s one way of doing it.

If we think another agency is better able to provide the outcome that the complainant is looking for, we may refer it to another investigative body.

Then when we do take a complaint, we also have the discretion to assign the resources to the complaint. In the example of Saanich, where I didn’t have a complaint — I went in on my own motion — the determination to do a fulsome investigation was because I felt that there were a lot of misstatements being made by senior officials at Saanich but also the media, and misunderstanding about privacy rights in the workplace. It seemed to me a good way to clarify what the law says and to get an investigation report out there that people would read and that they would report on. It has been reported widely throughout North America in law journals, in human resource journals. This was, again, better than a directive that went to Saanich.

To your point, we often go in. We’re working with B.C. Transit right now. We’re working with TransLink to look at their video surveillance cameras. We’re not investigating. But at the end of the day, we will be giving them a directive or advice on how to implement their surveillance technology. That’s not an investigation. That’s not as resource intensive as an investigation.

There are only about five or six files a year that I feel need to have a fulsome, systemic investigation. It’s usually about something that is a systemic issue across many organizations as opposed to just one organization. I think
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we’re quite careful in those big files that we choose, and we don’t chase every rabbit.

I should know this because I’m on the committee, but I don’t have it in front of me. What is your line item budget number for the lobbyist registration investigation?

E. Denham: Dave, do you have the bottom line number? Is it about $500,000 for the ORL side of our office?

D. Van Swieten: …two budgets together for efficiency, but $500,000 sounds about right.

E. Denham: Well, what we’ve done over the last two years is…. We used to have a group of three people that were working on the lobbyist registration side of the office, but we have eliminated one of the executive positions, combined it with the assistant commissioner position and used the remaining resources to bolster our investigation staff.

Now our investigation staff on the OIPC side conduct investigations for both sides of the office. Really, we took the functional skills, and we integrated the two offices together. We find that that’s more efficient.

The other thing, and I’ll go back to the Saanich situation — a broad question. Who in all these investigations is protecting the employer? The reason I bring this up is theft of time to employers is a huge, huge issue. I mean, there are numbers ranging anywhere from 20 percent to 50 percent of time — you know, like people on their personal banking matters. If they’re doing their personal banking at their office, they’re taking that time away from their employer.

In fairness, I mean, that was a very good example — people’s personal banking information. They shouldn’t be doing it on their employer’s time. So who’s protecting the employer, be it government or the private sector, whoever it is? If you’re losing 20 percent of your wages to people using your time for their personal time….

E. Denham: Right. I agree that employers have concerns about people playing on Facebook all day or whatever they’re doing on the office computer.

What the law says is the collection of employee information has to be necessary and reasonable for the employer’s purpose. So if an employer had a concern that somebody was stealing intellectual property from them, from the company, or if they believed that somebody was visiting websites that they shouldn’t visit, then it’s reasonable under our law for the employer to conduct a covert surveillance, to implement tracking software on their computer, because it’s a targeted workplace investigation. But to put employee monitoring software surreptitiously across an organization contravenes our law. An employer has to have reason to collect personal employee information, and they have to give notice to employees unless it’s a workplace investigation.

The Supreme Court of Canada has also ruled on this. What I said to Saanich is: “You’ve collected across the board every keystroke on a whole bunch of employees that were not under investigation.” That was the contravention.

The other thing is that employers have to…. There are some rules of the road. Tell your employees what’s being collected. You have to have notification, and you have to have reason for doing it.

People goofing off in the workplace — there are ways to deal with that. But collecting all data and not even having a policy that explains what data is collected so that employees might choose not to do their personal banking on the office computer…. Those are the important principles in privacy law. You can’t throw the baby out with the bathwater and say: “Employees have no privacy at work.”

E. Foster: I certainly understand and would support the information going to the employee before the software was put on. I get that. But at the end of the day, what you’re saying to me is if I’m an employer and I’m losing 20 percent of my wage time to people using personal time, there’s nothing for me, other than to say: “You’re not allowed to do it.”

E. Denham: Well, you have to pass a policy that explains what information will be collected and for what purpose, and how long the information will be retained. But that’s not what happened in Saanich. It was a very broad scope of collection without notification. The data was kept on a separate server. There were no logs. There was no checking about who had access to it.

There were a lot of problems with the implementation of that software in Saanich, but it doesn’t mean that an employer doesn’t have the right to clearly define what the rules are in the workplace. If an employer wants to say, “You can’t check social media in the workplace,” they can make the rules. The government of B.C. allows people to check Facebook during the day. It’s in their acceptable use policies. So an employer gets to make the rules, but you can’t use surreptitious software to catch people broadly across the office.
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E. Foster: I guess I understand the notification part, especially things like banking. I totally agree with that. But I just…. These things always seem to flow in one direction.

E. Denham: Employers have to get the balance right, and they’ve got to tell people what the rules are.

E. Foster: That’s fair enough. I get that. In the Saanich case, they certainly didn’t. That aside, they were wrong. There’s no question about it. But again, I think these things always come out on the…. The people that are paying the bills get the short end of the stick, always.

E. Denham: We think it’s so complicated that we’re issuing some specific guidance for employers, public sector and private sector, on how to get the balance right. So we’re working on guidance right now, because we don’t want to have another investigation like this.

J. Shin: I’ve got quite a few questions. I understand that you are operating with a $5 million budget. Would you be able to give us a picture of how many staff you have in the organization and the breakdown in the kind of work? Given that your office is dealing with anything from complaints to appeals, I’ll be curious to find out how much of your efforts are aligned towards public education or policy consultation, so to speak, or if it’s more reactive.

E. Denham: We have 36 positions, and as I was just explaining, we’ve actually integrated the office of the registrar into the Office of the Information and Privacy Commissioner. So adjudicators are adjudicating on both sides, investigators on both sides, public education on both sides.

I’m just going to give you the global numbers, if that’s acceptable. So 36 positions.

Commissioner. We have a senior executive assistant. We have three people in media, communications and public education — so three people that are doing that work. Two deputies. We have four adjudicators, and those are the folks that are actually managing the enquiries and issuing formal decisions and orders. So that’s the formal adjudication.

We have ten investigators. Five intake officers, and our intake officers are the front-end staff. We’re going to be giving them more responsibilities to early resolve files as they come in the door.

We have five policy analysts and one technology expert. What the policy analysts do…. They’re doing the proactive work that I talked about. They’re looking at privacy impact assessments. They’re meeting with organizations and public bodies to give them advice and keep the commissioner out of their crosshairs. So the policy analysts are doing really important work. They’re also doing the systemic investigations, such as the Saanich report.

J. Shin: Gotcha. Following up on that, given that there are 360 files on the wait-list and the average waiting time can be six months, like you mentioned, and you’re projecting for the next fiscal year that you will maintain the budget as it stands, I’m just curious to find out if you have any strategies to address those waiting cases, or if you’re planning to just carry them through and do what you can.

E. Denham: When I talked about our continuous improvement process, what we’re trying to do there is really harden our policies about the files that we accept for full investigation. We are going to bolster the responsibilities of the intake officers so that they can have the authority to early resolve cases. We have moved a policy analyst into investigations so that we can work on the backlog. We’ve also shifted another person into adjudication to do that work.

When I became commissioner in 2010, I thought we should put more resources into the proactive work that we do. Unfortunately, now we have a backlog, so we’ve got to take away a little bit from there to catch up with the citizens’ demand. We have to shift the numbers a little bit.

J. Shin: Gotcha. I guess my last question is: given that you’re engaging with the private sector or the public sector, as well as informed citizens, I’m curious to find out if there was a demographic analysis on who you deal with the most and if you have seen an increase in the past decade from just an informed citizen putting in an inquiry.

E. Denham: Right. We have never done that kind of analysis. This year we’re working with an agency to conduct exactly that survey. So we’re going out to the private sector. There are 2,900 public bodies in B.C. that we’ll be surveying. We’re also surveying citizens to see if they know about our office, how they use our office, because that would make it a lot easier and more effective for us to direct our services.

If you were going to ask me today what percentage of time we deal with the Freedom of Information and Protection of Privacy Act — so the public sector as opposed to the private sector — it’s probably about 70-30. Remember that access to information is only on the public sector side, so that bread-and-butter work keeps us….

E. Denham: And keeping those trains running on time is my first priority on that.

G. Heyman: Thank you, Commissioner, for a typically clear, concise and well-articulated presentation of the role of your office.
[ Page 1395 ]

I have two questions. You mentioned three ministries, I think, that had a high level of privacy breaches, the majority of which were administrative errors. I’m curious what follow-up, if any, you do where you identify a high level of breaches under the public sector act or significant breaches under the private sector act to ensure that measures have been taken to address the sources of those.

A secondary question is: if you find within a public sector body or a private sector body a systemic problem that makes information vulnerable or could lead to breaches, whether it’s a policy vulnerability or a software vulnerability, what actions would you take?

E. Denham: Starting with our breach examination report. I know you’re aware that there is no mandatory requirement for public bodies or private sector organizations to report breaches to our office. It’s not an explicit legal requirement.

When I looked at breaches and how they’re managed within the government of B.C., I was disappointed to see that only 2 percent of the breaches that were managed by the office of the chief information officer — part of the Ministry of Technology, Innovation and Citizens’ Services…. We didn’t know about a lot of these breaches.

One of my recommendations was to set an agreed-upon threshold for significant breaches that the OCIO knows about that they should report to our office. Again, what I was looking at is how the government of B.C. is managing breaches across the board. One of the problems was we weren’t hearing about them enough and citizens weren’t hearing about them enough. So that was the breach examination.

If we do hear of a breach — public body or private sector organization — we will follow up depending on the seriousness of the breach, the number of affected individuals and whether or not we saw that the breach was a preventable error and the organization had stepped in, closed the gap and mitigated the chance that it was going to happen again. If they were active about their notification, we would step away and just monitor it and probably close the file.

If an organization was having a series of breaches, if an organization had serious gaps in their entire framework, we would then conduct a systemic investigation of that organization. We did that in the Ministry of Health around the disclosure of data. We did a comprehensive look at how the Ministry of Health was handling information. University of Victoria — theft of a computer hard drive. We looked at exactly what kind of prevention was in place and made recommendations for improvement.

G. Heyman: It partially answers my question. If you find a systemic vulnerability and make recommendations to deal with the systemic vulnerability in order to comply with the law, what powers do you have if no action is taken or inadequate action is taken?

E. Denham: Most of the time we have compliance with our recommendations. If an organization does not comply with our recommendations, we have the ability to go to an inquiry process and order the organization to take measures. So we have order-making power. We have no fining power or other sanctions under the act. We can order an organization to stop doing something as long as it complies with the provisions of the act.

The other thing I should note is that typically in these systematic investigations we will actually put in a proviso that we will follow up, often in six months’ time. It’s contextual, depending on the circumstances. But we do that, and we’ll go back and look in to ensure that the recommendations that have been made are actually being followed in practice.

S. Gibson: A couple of very quick questions. I know we’re running out of time. When lobbyists register, do they pay any fee?

S. Gibson: So there’s no revenue stream. Are there any revenue streams at all for your office whatsoever, other than from the Legislature?

E. Denham: The only revenue stream we get is from this committee. If a lobbyist has to pay a $2,500 fine, that fine is paid into the consolidated revenue fund. It’s paid to the province; it’s not paid to our office. We have no benefit for running around investigating and fining lobbyists, as it should be.

S. Gibson: Okay. This is maybe a question similar to one I asked last time but kind of expanding it. You get people that would contact your office that…. They’re not frivolous exactly, but part of how they define themselves, to some extent, is pursuing these kinds of things. I come out of local government experience, and people…. It would be unkind to say they’re paranoid. I don’t want to go that far. But there are people that contact various government offices with particular issues that are relevant to them, but you know in your heart that it’s a part of their personality type.

There’s a lot of work and a lot of effort that’s gone in to try to assuage those folks, and fair enough. They’ve got their challenges, and they’ve got their rights.

How do you deal with those kinds of people? It seems to me government, in all sectors…. We just don’t have….
[ Page 1396 ]
This is relating a little bit to what Michael was saying a moment ago, my colleague. There’s just not enough funds available to handle people with what many of us would characterize as frivolous complaints. Because there’s no cost involved, it churns things up.

How do you handle those folks without offending them, without being unpleasant? That would be a question I would have. I know myself, out of local government, it became a huge issue for us. People were…. Anyway, I don’t want to go any further. You know where I’m going with this.

E. Denham: We have very experienced front-end staff who, I think, are good at dissuading people from time to time from putting in their complaints. We have the ability to disregard a complaint if there’s not enough evidence.

We also have the ability — and we do this all the time — to send the person back to the public body or the private sector organization with their complaint, in the first instance. If they’re not satisfied, then come back to us. We call that our refer-back policy.

On top of that, as part of our continuous improvement process, we will be — and we do now — cap the number of active complaints that someone can have before our office. That’s difficult, but we need to do it, I think, from a fairness perspective, because everybody should have the right to access the services of our office.

The restorative justice model, which is heavily embraced by the criminal justice community…. Does the restorative justice model have any role in your organization? If not, why not? Have you considered it? It seems to me…. That’s volunteer. There are a lot of volunteers involved. You’ve got very expensive staff. Maybe the restorative justice model has some application in your office. I’m just wondering.

M. McEvoy: Well, I’m not as sure that that framework fits the work that we do. What we can say is that the vast, vast majority of cases that come to our office, either by way of looking for information from a public body or if there’s a private sector issue, are resolved through the skilled — I would describe it as a mediation — process that our investigators lead.

I think well over 95 percent of cases are resolved in that kind of way to the satisfaction of both parties. They get the information they seek, or the applicant understands there’s no way that they’re going to get the information that they seek.

I think the model that’s in place now does a pretty good job the vast majority of the time. It’s those difficult cases that the commissioner referred to earlier, those often complex legal cases that make their way to adjudication and sometimes to the courts, that need that resolution.

Thank you very much for your presentation. I do appreciate you coming in front of the committee to give us a little update on what your offices are doing.

Just to conclude, I thought I’d inform you…. We’ll leave you with it today, but the committee discussed it some time ago, and what we are looking for is some form of uniformity when it comes to reporting out in budget. So we’re trying to develop an across-the-board template to report back to this committee with.

We’re going to leave you with a copy of it and then, obviously, ask you for your feedback. Hopefully we can be comparing apples to apples when we’re looking at all the different reports. They were all over the board last year, and it made it very difficult for this committee.

S. Hamilton (Chair): Welcome, Mr. Fraser, our Conflict of Interest Commissioner. It’s good to see you again.

I’d like you to know that this is an opportunity for us to get together with the committee more than once a year. We discussed this last year. It affords the different commissioners’ offices the opportunity to report out halfway through the calendar year and let us know how your office is going, any concerns, any budgetary issues that you want to talk about.

Essentially, the floor is yours for as long as you like. Then I’ll go to the committee for questions.

Office of the
Conflict of Interest Commissioner:
Financial and Operational Update

P. Fraser: Thank you, Mr. Chair. You’re right. Linda Pink is sitting on my left. Linda is our executive coordinator. She’s here to deal with the hard stuff. Otherwise, you could listen to me for, I think, just a few minutes. It’s probably going to be in everybody’s best interest if we have questions more than if we have a sort of didactic performance by me.
[ Page 1397 ]

I will say, though, that whenever one appears in front of the Finance Committee or a finance committee, two things always occur to me. I think it was Andrew Carnegie who said that the most important of all virtues is to live within your means. And it was our friend Oscar Wilde who then went on to say: “I’ve spent my entire life living beyond my means, and I fear that I will die beyond my means.” That, I suppose, is the policy consideration that all finance committees face. Hopefully, we wind up somewhere in the middle.

I’m very grateful for this opportunity to be with you and to do exactly what you’ve described, and that is to give the committee information, as an update to the information to the former committee — many of you were members of that committee — that led to the budgets being struck.

It was in the course of our discussions last year that we had a brief moment to address that issue. I was delighted that in your final report you mentioned that we might be doing exactly what is happening today.

I’m sure that what we really want and aspire to is to have the annual budget process be inspired by a merit-based process as opposed to the situation where you arrive without having had an opportunity and without the committee having had a continuing kind of opportunity to really understand what’s important to your office and what’s going on and then be faced with the annual dilemma of there being very little money, obviously, to carry on.

From time to time it has occurred to me, over the time that I’ve been here, that decisions about money are misunderstood, sometimes by the legislative officers, sometimes by the public — if they follow it that carefully — misunderstood in the sense that because there’s only so much money, the amount that is given is a product of that as opposed to an amount that would coincide with what the committee felt was the meritorious value of the work that the office had done and was proposing to do in the forthcoming year.

I don’t want to get too cosmic about all of that, but I think you understand the point. The idea of being able to, in effect, manage the accountability that there is between independent officers and the Legislature is a good one. There’s no question in my mind that we, as officers, are accountable to the Legislature. You are our bosses, and it’s to you that we must account.

That, of course, creates a number of different issues about independence and so on, but it’s a pretty simple context and concept. We have to, it seems to me, demonstrate that we’re performing on a meritorious basis and that we’re doing so on a basis that makes sense fiscally.

To be able to tell you at various signposts along the way what’s up and what we’re hoping to do assists in that process, rather than having to use only the annual reports, which I know are carefully read by everyone but which are, after all, usually a statement of what’s happened after the fact. I’ve read some of them to the point where my lips are tired. I have to tell you that the best way, I think, for this committee to understand what each of us is doing and the impact of it is to have this kind of a face-to-face exchange.

The Members’ Conflict of Interest Act is going to be — ta-dah — 25 years old this year, so I’m now referring to it as the venerable Members’ Conflict of Interest Act. I do that with a certain tinge of irony, because the reality is that the act has largely remained unamended for its entire history, the only exception being the apparent conflict-of-interest provision, which was introduced to the act a couple of years after it was passed.

I lament that. I lament it particularly because there have been two occasions when the House had an opportunity to accept and act upon unanimous recommendations from committees that were struck or were part of the standing committee process to suggest change. One was in 1999, when a very considered report came forward — again, unanimous — dealing with a number of issues that are, frankly, still alive and have never been resolved. The second was the report, which was unanimous, in 2012, which suggested a variety of amendments to the act.

In 1999 larger issues were addressed. In 2012 those same issues were addressed to some extent, but most of the conversation had to do with the fact that there were practical short-term sensible solutions that would require simply housekeeping amendments. That’s despite the fact that — I don’t mind telling you this — there is no opposition, from what I can tell, on either side of the political spectrum — not just as represented by the unanimous report of the 2012 committee but by various leading members, including, of course, yourselves, both parties — to getting something done.

It’s been a question, I think, not of just benign neglect. I think it’s been a matter, rather, of just not being able to get a place on the legislative agenda. My fervent hope is that that will change and that at the next session of this House the recommendations of the 2012 committee will be accepted. The office has been on record saying that we’re happy to help with the drafting if we’re invited to do so. We made three or four written submissions to the committee in the course of its work. We think that we could be helpful in terms of moving the process forward.

I’ll leave it at that. In terms of what our year looks like, going forward, and what we’re doing, that is at the top of the list. This is a kind of melancholy way of expressing it, perhaps, but some of it puts us in a situation…. Whereas British Columbia and, briefly before us, Ontario, were the leaders in this whole field, we’re now, frankly, frozen in a piece of legislation.

It’s still good. It’s clear. It was put together in 64 hours in response to the upset that was occasioned by Mr. Vander Zalm. It’s remarkable how good the legislation is, notwithstanding the brief period of time in which it was
[ Page 1398 ]
passed. The reality, though, is that all of the other jurisdictions in Canada have stayed current. The last jurisdiction in to a comprehensive conflict-of-interest protocol and procedure was the federal government. Not until 2007 did they come in, under a part of what was then the broader rubric of the Accountability Act.

The federal government’s Conflict of Interest Act and conflict of interest code — two separate documents, pieces of legislation — both have provisions, for example, that we don’t have, one of which is that there’s a mandatory review. As it happens, because so-called experts are people who live out of town and get their travel expenses paid to give evidence, I’ve been involved in the last couple of years and just recently a few weeks ago with the parliamentary committee that is deciding what the amendments should be to the code and what the amendments should be to the act.

We’re behind. I mean, people aren’t stopping each other on the street and lamenting that, but there are a lot of things that should be happening to our act that haven’t been dealt with. That’s going to take a lot of our time. I don’t have any doubt that we are staffed up to the point and are ready to go. We’re not going to have to come knocking on your door and saying: “It’s going to take so much time. We need more money.” I think we’re going to be able to manage well within what we’ve got.

The other couple of things that I wanted to mention are that we’re looking to do a variety of things that will continue the kind of frugality that we’ve practised since Mr. Hughes started, and Mr. Oliver, who used to tell the Finance Committee how many paper clips he’d used. We’ve carried on in that tradition. We also have, over the years, most recently because of your request, taken a look, for example, at whether we could make some economies of scale by becoming involved, perhaps, in some of these special services that other people have.

The reality is that our situation is unique in terms of where we are located as opposed to where the special services that other offices are using are located. I’m quite satisfied that there isn’t any way that we can wreak some economies by becoming involved in the special-services arrangements that presently exist.

That said, I can tell you that part of the reason for that rationale is that, first of all, we have the Legislature generously making the IT services across at the red-brick buildings available for us to use. That’s found. We have finance services, which have been rendered to us since the inception by the Ministry of Finance, and that’s found. Both of those items are already found and are not budget items, from our point of view. Don’t tell anybody that. I’m sure this isn’t on the record. But that helps us live within our means, to use Mr. Carnegie’s expression.

Look, I congratulate you on giving us this opportunity. Having done that, I think I should just let you ask me questions and will attempt to answer them.

E. Foster: I’m curious, I guess, as much as anything. Beyond the regular meetings you have with all members every year, and I know some are a lot longer than others, how many files would you say are generated? Some are obviously just phone calls that you can clear up. But beyond that, more lengthy files — how many would you deal with?

P. Fraser: I know that the specific numbers are actually in the annual report. It varies considerably, given the fact that our jurisdiction includes requests and files, from members of the public, that would have to be opened. As you can imagine, in any given year the number of requests could be enormous, or they could be few. We keep track of all of that, and we identify which of the requests are from the group of people who would fall into the members-of-the-public category and which are from members.

On a daily basis, it’s hard to say. Linda may be able to help me. But I would think that in the course of a month we would open probably 20 or 25 files. Now, that would be at a peak. You have to understand that the file would actually only get opened if there was a reason to open it, as opposed to simply answer a phone call or an e-mail and realize either that the matter was beyond our jurisdiction or that there didn’t appear to be, on its face, any merit or any reasonable or probable grounds that we should continue.

We acknowledge all of the requests that we receive, and we log them. I have our draft annual report here somewhere. I don’t know whether Linda can turn up what our stats are for this year.

E. Foster: Just for clarification, then, sir, you said you open 25 files. These others are in addition to those 25? The phone calls and the quick e-mail responses are in addition to them? It’s an average, I guess.

G. Holman: Thanks, Paul. Could you mention one or two things that you consider particularly important in terms of changing the legislation?

P. Fraser: Yeah. The legislation uniformly elsewhere has within it a section which simply says that the legis-
[ Page 1399 ]
lation will be reviewed every five years. Then what happens is that that mandated process occurs. The situation now is that in order to have the act reviewed in any formal way, it’s necessary to convince, or has been necessary to convince, a standing committee, which we did in 2011-12, to take on that task or ask the members, through their representatives, to set up a special committee for that purpose.

The result of that is that people can refuse to take on that responsibility. In my view, it’s a responsibility that’s too important to be left to anybody’s discretion, and it should be mandatory. On a purely selfish basis, I can tell you that there has been only one time in the seven-plus years that I’ve been around where I had to pass something off for another person to deal with, because the member involved advised the media that he had an apprehension of bias. He didn’t advise me of that. There is no statutory process contemplated for me to do that.

So we did it. We got it done, but I would like to have the ability to do that enshrined, obviously, in the act.

The other more significant…. Both of those I would put in the housekeeping category. The other, larger issues, for example, are that while we talk about ethics and while we talk about ethical conduct at large and while people are concerned that the conflict-of-interest act do something to make sure that somehow an ethical standard is being adhered to, there is nothing in the act about ethics. The word isn’t used. In all of the other legislation, there is either a purpose clause or a principle clause that recites the fact that the act exists for the purpose of making sure that people behave honourably and honestly and ethically.

A lot of conversation over the years, understandably, about what is ethical and what isn’t — and how long is a piece of string. The various jurisdictions have chosen different language. But I’m convinced, and the committee was convinced in 2012, that we have to have something that’s actually enshrined in the act that addresses that. I think people would be surprised, frankly, as members of the public to find out that there is no mention of ethical conduct currently in the act.

There are a couple of other things that are of interest and which are at large but which I think need to be discussed. The committee considered but didn’t adopt an idea that would see deputy ministers become, for example, part of the disclosure process, that would see ministerial assistants become part of the disclosure process. Those are much more difficult issues from a practical operating point of view, and they raise a whole bunch of different questions, but it’s a conversation that I think we need to have. The easy part is the housekeeping stuff. If we can get that done, it would be, it seems to me, a good test drive.

G. Holman: Just a quick follow-up in terms of the mandatory review. If that was in place, that doesn’t necessarily mean that changes to the legislation would be automatically forthcoming. It still would be at the discretion of the government regardless of the outcome of that mandatory review.

C. James (Deputy Chair): Just to finish following up on the legislative change question…. It may be something for our committee. I think you’ve described well the importance of us having these kinds of conversations outside the budget with the officers, so we can have this kind of in-depth conversation. Perhaps it’s the role of this committee to take the issue on.

I wonder whether you’ve had any conversations with government around the legislative calendar and whether any of these housekeeping issues, at least, are on the calendar at all.

P. Fraser: I have the commitment of the current Premier and the former Leader of the Opposition to support changes to the act, based on being informed about those changes by the committee, which, mercifully, was unanimous. So that solved that sort of practical difficulty.

I became concerned that this was one of those bits and pieces of legislation that could fall, really, in either one of two categories. Either it could be a substantive piece of legislation that would stimulate debate about some of these broader issues. Or it could, almost essentially, be a series of provisions in a miscellaneous statutes amendment act — in the way in which I remember from political science 101 those acts were supposed to be, because it’s really just using words and adding a few things.

I’m satisfied that the commitment that I have and had with respect to the Leader of the Opposition is still alive. I was simply advised that we weren’t going to make it for this last session.

I don’t know what the future holds, but I can tell you that I’m determined — and my annual report, which is about to be filed, will say so — that we should get on with this, because I think we’re pushing on an open door. How big the door is and how open it is remains to be seen, but I think there is the will to do it.

G. Heyman: I’m wondering if you could briefly elaborate for us on how either the volume or complexity of requests that you receive for determination about whether a real conflict or apparent conflict may exist has evolved over the time you’ve been in office and whether you think that’s simply a result of greater awareness among elected officials or something else.
[ Page 1400 ]

P. Fraser: Yes, that’s a very good question. There are certainly clear trends and have been over the last, I would say, 25 years. In order to give, I think, a fair answer to the question, I’d have to say that the appearances are clear that in the first seven or eight years of the legislation’s existence, the legislation became a political killing field. There were a variety of complaints by members against other members. They were frequent, they were controversial, and they were dealt with principally by Commissioner Hughes.

Looking at it, it’s clear that that was a reflection of the times, which were uncertain and troubled. Then the trend changed, in the sense that there was an appreciation that it is better to spend one’s time and energy dealing with matters having to do with prevention than it is with adjudication. It also makes the job of the commissioner rather easier or, maybe I could say, rational.

If you think about it — and one doesn’t want to think about this for too long — it’s a unique situation. You are the priest, you are the adviser, you are the investigator, and then you are the cop. How does that happen? How can you do that? I have to say that the only thing I can say in defence of that model is that it seems to work, and I think it seems to work because members have common sense and they understand where the borders are. But that understanding wasn’t quickly arrived at. It came over time.

Bert Oliver, when he was the commissioner — and he was the commissioner for ten years — was careful to say to members and say publicly that his priority was to spend time on prevention, and in the result of all of that, the number of complaints about members by other members went down appreciably but not to nothing. They were still a pretty active series of files.

There are at least three ways in which the office comes to an opinion and makes a decision. One is if a member complains about another member. The other is if the member publicly complains about a member. And the third is if a member themselves, under section 18, comes to the commissioner and asks for an opinion.

In the seven years that I’ve been around, I have had to deal with only four complaints of members against members. In the last five years there were only the two of them. That’s a trend that I welcome. I think it’s good for the institution. I think it means that people are coming for advice early. I don’t know whether it means they’re getting good advice. What it means to me is that people are using the office for one of its integral purposes, which is to give advice at the front end.

The other part of it is that I think it’s important, given the provisions of section 18, that a member whose reputation hangs in the balance because of accusations that have been made in the media or elsewhere, and the reputation is essentially one that is up for discussion while all of the sort of front end of the complaint process is going on — that be kept to a minimum so that people aren’t allowed to speculate, perhaps very unfairly, and in effect have a trial before there’s been a decision.

That’s why I’m pleased that people who have notice of complaints being raised, either in the media or elsewhere, are coming to me and asking for an opinion then and there.

Our practice is that when we get something, we basically acknowledge to the media only that we have received a request. We don’t get into the merits of it, obviously. We take whatever steps we can, though other jurisdictions have enshrined these steps in their legislation, to make sure that if it’s a member complaining, they’re not continuing to complain publicly about it while we do our work. I have found that the best result of all of that is that the speculation stops about whether the person has or has not behaved in a way that’s offside the act.

I think that’s important. Whatever happens, there’s going to be another day. Against the possibility that the request for an opinion absolves the person, I think that person should be entitled, as quickly as we possibly can but as completely as we possibly can, to make sure that there isn’t a lingering sense that somehow — regardless of what the decision was, if anybody remembers it — the person’s reputation has been tarnished.

That’s been the trend. The interesting other aspect of your question is that we have not had what one might expect in the abstract. That is a great deal of requests for opinions from members of the public on a continuing basis, if by “members of the public” you mean people who are not in the media but citizens.

We deal with each and every one of those requests seriously. We satisfy ourselves as quickly as we can whether there’s some reason to go forward and gather information that either has to exist or, if it doesn’t exist, will put an end to the matter so as to stop speculation from members of the public to the media.

None of this is in an attempt to shelter members and keep you safe, necessarily, but because the process has to be fair. You kind of make it fair in terms of the procedures and practices that you adopt.

Seeing none, Mr. Fraser, thank you so much for coming here today and letting us know how things are going on in your office. If I could add, Kate is just going to leave you with a document. The committee discussed it last year. Oh, you’ve got it already. We’re just looking for uniformity in reporting budgets.

S. Hamilton (Chair): We welcome your feedback regarding the document that we have there and look forward to hearing from you again in the very near future.
[ Page 1401 ]

Okay. This speaks to the conversations we had as a committee late last year with respect to our travel schedule for this fall and some of the opportunities we might leverage in terms of teleconferencing. I mean, it was noted that sometimes we’d spend an awful lot of time getting to a town where we see very few people.

By way of that, I’ll ask Kate maybe to introduce the issue. We can have a bit of a discussion about it and hopefully have some information that will help us take it forward.

K. Ryan-Lloyd (Clerk of Committees): Excellent. Good morning, Members. We have circulated a brief backgrounder for your information this morning that was prepared by Susan Sourial, my colleague who is the Clerk to your committee, with respect to your annual budget consultation process.

The intent of the handout is to provide you with a bit of background information with respect to, as you know, the required timelines for the work that is approaching in the months ahead. Members will know that the process formally begins with the receipt of the budget consultation paper, which is prepared by the Ministry of Finance and then stands referred to your committee to shape your consultations.

In addition to the usual approach, which includes a call for written and on-line submissions, as you know, the committee also plans a number of weeks of public hearings. We’re pleased to invite your direction and guidance with respect to any preliminary plans that we could undertake on your behalf over the months ahead.

As I noted, the process formally begins no later than mid-September. Because of the statutory requirement to conclude the work of your committee with a formal report by November 15, what typically happens is that there are a number of compressed travel weeks, beginning probably by the 15th. On occasion the committee has received an early copy of the budget consultation paper, which is very helpful for our planning purposes. I’m not sure yet if Susan has made contact with the Ministry of Finance to determine if that is a possibility this year.

In essence, the intent of her raising the topic with you this morning…. And I apologize. I know she is still with the Select Standing Committee on Health and continues to meet downstairs in the Douglas Fir Room, but she did very much want to seek your input on a public hearing schedule for the fall. You will see that she has outlined some of the key considerations with respect to the practices of this committee, noting that each presenter, of course, is usually provided with up to 15 minutes of presentation time.

We have been supporting the budget consultation process in our office for almost 15 or 16 years now, so it is a process whereby we have some understanding of the patterns of participation, and of course, the broad-based interest in meeting with your committee.

On page 2 of the handout you will see a high-level synopsis of, I think, the basic assumptions of the areas that you may wish to consider. If the committee wishes to supplement, of course, a very preliminary listing here, we’d welcome your direction.

As was noted in the text, we have had some experience over the last year in having members of the public connect to other committees by way of telephone conference calls. When time is available in your schedule, if you happen to be in a community where you haven’t already been pre-registered and have a full allotment of participants in front of you, we’d be pleased to ensure that interested British Columbians can then connect to the committee and make a submission. It would make very good use of time and also expand the breadth and accessibility of your public hearing time.

We’re always cognizant, of course, of cost-effectiveness and the challenge of juggling members’ many duties and schedules over the coming months, so we wanted to give you a high-level overview this morning and invite your input as we begin planning in the weeks ahead.

E. Foster: I’ve spent two years on this committee and certainly enjoy it. One of the things that I think…. Well, first, I’ll ask a question. The submissions, or the people that present — is that on a first-come, first-served basis?

K. Ryan-Lloyd (Clerk of Committees): Yes. That’s essentially correct. The committee has taken other approaches in previous years. For example, it was the practice for many years at the initial hearing in Vancouver that invitations would be sent to key provincial stakeholder groups. So broadly based provincial organizations would be invited to the Vancouver hearing. Because of the amount of time usually available, I think up to 20 or 30 groups could be accommodated at that initial meeting.

But in the last year the practice was first come, first served across the board. I think that those same organizations still found a place in front of the committee, but it just was structured a little bit more openly.

E. Foster: Thank you for that. Then my comment would be that I heard from — not too many but some — organizations in communities that didn’t get an opportunity to present. But we had some organizations that presented at every single community, and some of them used the same text every time. I think that that should be weighed in there.
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You know, we have an organization in Cranbrook, for example. They’re local to Cranbrook and have their operation specific to Cranbrook. They should get preference over an organization that’s, say, a national organization that gets in quickly because they have the people to do it. They are literally in every single community that we have meetings in.

I think that it’s unfair to exclude…. I mean, a small, not-for-profit organization in Cranbrook can’t get on a plane and come to Vancouver. They shouldn’t, because they have very limited resources. I think they should get preference over a national organization.

I mean, like the BCGEU, for example. They’ve got all the resources in the world. They come to one place and make their presentation, which is perfect. If they wanted to, they could send somebody to every single meeting, but they don’t. They make their presentation, and that’s great.

Other organizations…. We heard from PacificSport, essentially half a dozen times last year. They’re a good organization. They didn’t ask for any more money. But really, did we have to hear the same message a dozen times, or ten times?

I bring that for consideration when we’re looking at…. I want to make sure that those small local groups that want to present to us have an opportunity to do so.

S. Gibson: I agree with much of what Eric has said, and those were going to be my remarks. Obviously, on this chart here the Lower Mainland is missing. Fraser Valley is excluded from the list, right?

K. Ryan-Lloyd (Clerk of Committees): I think that on the document that had been prepared it was presumed that at least three public hearings would be scheduled in the Lower Mainland. Typically, that has been comprised of a Vancouver public hearing, a Surrey public hearing and one at least in the Fraser Valley. Each year the committee has a high level of interest from the Lower Mainland. I think on this draft we have not prescribed exactly which those communities are. It would be our recommendation to do at least three, if not four, public hearings in the Lower Mainland.

My point, however, is an elaboration of what Eric has said. I would like us to be more innovative and more creative in getting people to come, right? That was the lament.

This is my first time on the committee. We’re getting the frequent flyers, as Eric was remarking about a moment ago. There are tons of people out there who should be there, but I guess they don’t know. I would like to see staff come back with some innovative ways to market these.

The other thing is, too, why don’t we go to some communities we haven’t been to, or smaller? Communities maybe like Smithers or…?

Or Houston, or Toboggan Falls, Dogsled Creek — I just made that up — places that we wouldn’t normally go to, because those folks need to get to know our committee as well.

I’m just wondering…. Maybe Kate has something to remark on that. Can we get more innovative and maybe actually go out and almost tie our meetings in with some other meetings? If there are meetings taking place in a community, a community meeting, and our meeting happens right after that, we already have the people there for their meeting. Somehow we can tie in with meetings so it’s more efficient, or maybe there’s a meeting…. Maybe UBCM is having a meeting in a town or something of particular interest, so we tie our meeting in with that, so joint marketing, joint advertising.

Right now we’re getting the same old people coming to all of them. I was told by previous board members…. Who was it? Somebody who was on the board last year said: “Yeah, it’s the same thing, Simon. It hasn’t changed very much.”

K. Ryan-Lloyd (Clerk of Committees): If I might, I would just advise the committee that the committee has convened in Smithers and in Houston in previous years — Toboggan Falls, not quite yet. The point being that we have supported committee deliberations in communities of every size, and we’re pleased to do that.

Our strategy this year to enhance accessibility: should the committee wish to include some smaller communities on the travel tour, we will aim to make good use of your time by expanding the reach of the committee by way of this telephone conference call option.

I think that will work for witnesses’ availability as well. In past years, if the written and on-line submission wasn’t appealing to a group or an individual, then they had to essentially match the committee’s availability with their own schedule, and it may be problematic in some cases. We’re hopeful that that will be a help towards enhancing accessibility.

With respect to innovations, I welcome suggestions from the members. One area that I know we have turned our minds to in the office is to make better use of on-line advertising.
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Traditionally, we would focus most of the resources, in terms of supporting advertising of the committee’s tour, in traditional newspapers. We’re finding more and more that if we invest in an on-line advertising campaign, including social media to some extent, we can actually track through analytics the actual responses that we received. And we know exactly how many people participate because of their re-referral from an on-line site or an on-line ad.

So we’re going to do more work in that area, but we very much welcome members’ suggestions for further innovations.

S. Gibson: Just a supplementary. Some of the materials — it looks like a B.C. Hydro: “Please come and talk about the hydro rates.” It’s really dreary. Why not put some pictures in or make them look interesting? I saw one of the ads. It was pretty deadly looking. No offence.

K. Ryan-Lloyd (Clerk of Committees): Well, we will certainly try and innovate wherever we can, resources allowing.

C. James (Deputy Chair): Thank you to Susan in the Clerk’s office for the report. I like the balance here. I think when people look and see that we don’t get many people at a hearing often their reaction is: “Let’s cancel the hearing. Let’s not go to small communities.” And I think that would be the wrong direction for us as a committee.

I think we as a committee need to make sure that we’re reaching out. Even if it’s only a few people, hopefully that encourages, the next year, for more people to come out. I think it is about consultation with the public, and that means in some communities, a few people, and in some communities, a large number of people.

I like the balanced approach. I like the idea of using phone calls. For the time when we aren’t full at hearings and we can’t get out on a flight, we can use that afternoon or early evening to be able to do those kinds of phone calls. I think that makes good sense.

I guess I’d encourage us to look at opportunities to get more local people out rather than say to groups and organizations: “You have a provincial connection, so we’d rather you didn’t present.” I’d rather we did it the other way around and looked for the positives.

I think one of the strengths of local folks coming, even though they may be with a provincial organization, was often they came to us to talk about what was happening in their communities, and they were proud about the work that they were doing in their communities. Yes, they belong to a provincial organization, but they were bringing their local flavour of what happened there. I think it’s just good for democracy for us to encourage more of that.

I’d agree that we need to do a better job of getting local folks out and making sure that the public knows this isn’t simply for groups and organizations. It’s for anyone. Anyone in the community can present. I think there are some innovative things we can do on social media for just that. But I like the balance. I know it’s a gruelling a schedule, but I think we should keep it. I think it’s a big strength for democracy and a big strength for people in communities.

G. Heyman: Just to Eric’s point. I don’t disagree with him, but there is a balance. For instance, I know Literacy B.C. was represented all over the province, but they did bring a local flavour, as Carole mentioned. While aspects of the ask were the same, it was pretty targeted as to what would happen. I think we should pay attention to that.

Where at all possible, if we’re going to speak to people by phone, if there’s a video conference available, I’d rather do that. It’s very difficult for either a presenter or a listener to really connect when it’s just voice. There’s a tendency to disconnect, in fact. I don’t think anybody will be very happy about it, whether it’s on the committee or the presenting side. I realize technologically that won’t be possible everywhere, but it may be.

I understand some of the challenges, but I’m aware that we bailed from Castlegar last time with some ill feeling. I’m not sure the answer to that is to not try to schedule it at all this time, notwithstanding the challenges.

The other gap that I notice here is that the northwest is simply not on this map. I don’t think that’s appropriate. Even if we balanced it by doing somewhere in the northwest and doing Williams Lake rather than Prince George, although frankly, Prince George is a pretty big regional centre, so I’m not sure that’s a great idea.

K. Ryan-Lloyd (Clerk of Committees): Yes. Thank you so much for your thoughts, George.

With respect to video conferencing, as members know, we do have equipment here in the Douglas Fir Room that will support a video conference exchange. A couple of considerations to keep in mind about that technology are that it requires the participant on the remote end to get themselves to a video conference facility, which in our experience can be a challenge in terms of scheduling. Availability in small communities can be quite limited. Often those facilities are shared with local community colleges or other groups.

In terms of our reservation on the remote end of a video conference facility…. Ideally, I think what we’re trying to do with technology is expand the accessibility and openness to connect with the committee, but ironically, because of the limited nature of those facilities in some communities and just a convenience to witnesses, we’ve had mixed results.

What we have found works a bit better is a simple telephone call because, of course, everyone has easier access
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to phone lines and can fit around the committee’s schedule and their own schedule sometimes with more success. That’s not to say we wouldn’t very much explore the opportunities, as the committee wishes, to schedule video conference hearings, but it would likely be when the committee is based here in Victoria and then just based on an interest, of course, from members of the public. Perhaps an approach with both models as an option can be part of the plan for the fall.

As much as possible, the proposed regional suggestions, I think, on this preliminary document are very much open to your input and guidance. Ideally, for planning purposes, it would be helpful for everyone to provide your Chair or Deputy Chair or Susan with your list of preferred public hearing locations by the last sitting week this month, so the week of May 25. That will enable her to prepare a preliminary schedule to run by you all, so we will have a sense of the number of locations and the regional distribution and ensure that we make very good use of your time in September and October.

G. Holman: In general, I think we do a reasonable job of outreach. I do agree with George’s point about the northwest. My lament is that I think there’s a gap between what the committee recommends and the response to that. I have raised it before.

In my view, I think there should be, even at a more general level or at a strategic level or a priority level, some kind of response from the Minister of Finance — I realize it’s a report to the Legislature — about what the committee recommended and the basic view, even if it’s at a strategic level.

Maybe the driving strategic consideration is finances, and we haven’t balanced our budget or whatever. Or maybe it’s in terms of government priorities. I do think it does affect people’s view of how important it is to come before the committee. If it just kind of goes into…. You know, there’s a report and all of that, but if there’s no response, I actually feel that that has an effect.

I did have a question. Over time, over the last ten years, has there been a trend, either upward or downward, in terms of a total number of submissions to the committee? Do we see more engagement, less engagement, or is it just relatively neutral in terms of trend?

K. Ryan-Lloyd (Clerk of Committees): My recollection is that there is a high level of interest in the work of your committee and has been since its first appearance in the year 2000, but there are peak years. They tend to revolve to some degree around the election cycle, so there tend to be higher levels of participation in the year following an election. That’s my recollection.

In addition, there are peak years when the work of your committee corresponds with a concerted effort by a certain sector to gather and amplify their message. That’s happened at times, I think, in my recollection, with lobbying efforts on behalf of arts and culture in British Columbia and also with education funding at one point. Those were years where we saw peaks of participation.

The number of presentations at the public hearings tends to reflect the amount of time that the committee has available for a public hearing schedule. Those public hearings are relatively stable. The peaks and valleys come with the number of written and on-line submissions that are received. They more so reflect the points that I just described — so concerted efforts by some groups or other factors.

D. Ashton: I’m a strong believer in all parts of the province being represented, similar to what George has said — all the quadrants in the centre. I think we get a little bit confined down here, from my past two years of experience. I think it’s really good for the government to get out and to try and get input. I know that three or four is a pain for us in a lot of ways, but I also concur that if we start taking a look at other forms of media to get into the communities and to dwell on the community interests….

George, I concur. Whether it’s Castlegar, Trail or Nelson, the West Kootenays has to be represented. We missed out last year, and I would like to get back in there.

Kate, I assume your office is open to more suggestions as we go forward. I guess it will be sort of a living event.

S. Hamilton (Chair): As people come up with ideas, they can forward them to you, and we’ll go from there. I look forward to a fulsome schedule again this fall, I’m sure.

Anyhow, seeing no further questions, the committee stands adjourned. Thank you very much.

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Chair:	Wm. Scott Hamilton (Delta North BC Liberal)
Deputy Chair:	Carole James (Victoria–Beacon Hill NDP)
Members:	Dan Ashton (Penticton BC Liberal)
	Eric Foster (Vernon-Monashee BC Liberal)
	Simon Gibson (Abbotsford-Mission BC Liberal)
	George Heyman (Vancouver-Fairview NDP)
	Gary Holman (Saanich North and the Islands NDP)
	Mike Morris (Prince George–Mackenzie BC Liberal)
	Jane Jae Kyung Shin (Burnaby-Lougheed NDP)
	John Yap (Richmond-Steveston BC Liberal)
Clerk:	Kate Ryan-Lloyd

REPORT OF PROCEEDINGS(Hansard)

SELECT STANDING COMMITTEE ON FINANCE AND GOVERNMENT SERVICES

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
FINANCE AND GOVERNMENT SERVICES